Whether leave should be given to issue subpoenas prior to trial
Whether leave should be given to amend the judicial review application
Turns on own facts
Quick Take
1A subpoena to produce documents returnable prior to trial should not be used as a substitute for an application for specific or further and better discovery; where a party contends that inadequate discovery has been given, the appropriate course is to apply for specific discovery rather than seek a subpoena.
2Statements made in a party's affidavit of documents are conclusive on the question of whether the party has or had documents other than those disclosed, and a subpoena application should not be used to mount a collateral attack on such statements.
3In judicial review proceedings, it is most unusual for a subpoena to be issued, and a dispute about the adequacy of discovery does not constitute the 'exceptional circumstances' required for leave to issue a pre-trial subpoena under O 36B r 2(2D) of the Rules of the Supreme Court 1971 (WA).
