Kendling and Kendling and Ors (No. 5)

In the matter of *Kendling and Kendling and Ors (No. 5)*, Stevenson J of the Supreme Court of New South Wales considered applications to set aside four subpoenas. The subpoenas were issued to various legal practitioners and firms, including Dorrough Smart, Solicitors & Attorneys; Barkus Edwards Doolan, Family Lawyers; John S Wenden, Solicitor; and Mr Z, Lawyers, all dated 22 February 2008. The underlying dispute concerned the parties, Kendling and Kendling, and other unnamed parties, in proceedings before the Court.

The central legal issue before Stevenson J was whether the issued subpoenas were oppressive and therefore liable to be set aside. This required the Court to consider the principles governing the issuance and enforceability of subpoenas, particularly in circumstances where they seek to obtain documents from third parties who are legal representatives of other parties in the litigation. The Court had to determine if the subpoenas were properly issued for the purpose of obtaining relevant evidence or if they constituted an abuse of process.

Stevenson J reasoned that the subpoenas were oppressive and set them aside. The Court applied the principle that a subpoena should not be used as a "fishing expedition" to search for evidence that might exist, nor should it be used to obtain confidential information from a party's legal representatives without proper justification. The Court found that the subpoenas, as issued, were overly broad and sought documents that were not sufficiently particularised or relevant to the proceedings, thereby imposing an undue burden on the recipients. Consequently, the Court ordered that all four subpoenas be set aside.