Secretary of the Department of Planning, Industry and Environment v Blacktown City Council

The Secretary of the Department of Planning, Industry and Environment (the Secretary) sought to set aside a subpoena issued by Blacktown City Council (the Council) in proceedings before the Court of Appeal of New South Wales. The dispute concerned the validity of the subpoena, which the Council had issued to the Secretary seeking documents relevant to the proceedings.

The central legal issue before the Court of Appeal was the test for determining the validity of a subpoena issued in civil proceedings, specifically whether it is sufficient that the documents sought have "apparent relevance" to an issue in the proceedings, or if it is necessary to satisfy the court that the documents are likely to materially assist the case of the party issuing the subpoena. The Court also considered the origins of the concept of a "legitimate forensic purpose" and when a party issuing a subpoena might lack such a purpose.

The Court of Appeal held that a legitimate forensic purpose may be presumed where the documents sought by a subpoena have apparent relevance to matters in issue or are capable of assisting in cross-examination. The Court reasoned that the converse of an abuse of process is a legitimate forensic purpose, and that a party issuing a subpoena will not lack such a purpose merely by being unable to demonstrate that the documents sought are likely to assist its case. The Court further considered the precedential value of decisions of the Court of Appeal refusing leave to appeal.

The Court of Appeal granted leave to appeal but dismissed the appeal, ordering the Secretary to pay the Council's costs.