Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (No 5) [2012] FCA 1226

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd (No 5) [2012] FCA 1226

It is sufficiently arguable that documents may be caught by the subpoenas for which no privilege can be sustained, therefore the subpoenas should not be set aside on the ground that they only capture privileged material. The prospect that documents may not be admissible does not justify setting aside the subpoenas as serving no forensic purpose; subpoenas can legitimately yield relevant, non-privileged material.

Jurisdiction
Australia
Judgment Date
11 October 2012
Procedural Posture
Interlocutory Application Within Civil Proceedings / Application to Set Aside Subpoenas (pre Trial)
Outcome
Application to set aside subpoenas dismissed.
Legal Topics
['subpoenas to Experts' 'legal Professional Privilege' 'admissibility of Documents' 'forensic Purpose of Subpoenas']
['practice and Procedure' 'evidence'] ['subpoenas to Experts' 'legal Professional Privilege' 'admissibility of Documents' 'forensic Purpose of Subpoenas']

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Procedural Posture

Interlocutory Application Within Civil Proceedings / Application to Set Aside Subpoenas (pre Trial)

Legal Issues

  1. 1 ['Whether subpoenas to experts retained by a party should be set aside on basis of legal professional privilege or lack of legitimate forensic purpose' 'Whether any material produced by experts in response to subpoenas would be privileged' 'Whether subpoenas serve any legitimate forensic purpose if privileged material would be excluded']

Ratio Decidendi

It is sufficiently arguable that documents may be caught by the subpoenas for which no privilege can be sustained, therefore the subpoenas should not be set aside on the ground that they only capture privileged material. The prospect that documents may not be admissible does not justify setting aside the subpoenas as serving no forensic purpose; subpoenas can legitimately yield relevant, non-privileged material.

Court Disposition

Application to set aside subpoenas dismissed.

Orders

  • ['The subpoenas addressed to Kader Lattab, Fethi Rabhi and John Mylordis stand over to be returnable before the registrar on 14 November 2012.' 'Any claim for privilege in respect of any documents, the subject of any of the subpoenas, to be made the subject of affidavits, to be filed and served on or before 14...