A subpoena is compulsory process subservient to a properly constituted proceeding, and its validity depends on demonstration of a legitimate forensic purpose that cannot be established absent a cognisable cause of action. Absent specific statutory power, a court cannot enforce a subpoena as a form of pre-proceeding discovery. Section 91(1) of the Civil Procedure Act 2005 (NSW) does not confer a power to dismiss proceedings but states the consequence of dismissal, which absent a preclusive condition does not prevent fresh proceedings.
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