In the Federal Court of Australia, strict rules apply in relation to the issuing of subpoenas. Additional rules regarding service apply if the party who is to be issued the subpoena (Addressee) is based overseas. These rules are set out in the Federal Court Rules 2011 (Cth) (Rules).
What is a subpoena and when should it be sought for an international party?
A subpoena is an order of the Court requiring the Addressee to attend Court to give evidence, produce to the Court a document or thing, or both.[1]
The Federal Court notes at paragraphs 2.3 and 2.4 of the Subpoena and Notices to Produce Practice Note (GPN-SUBP) (Practice Note) that a subpoena ‘should not be used for inappropriate or unnecessary purposes’ and a party should carefully consider its necessity and appropriateness prior to seeking it.
Edelman J noted in Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 890 (Titan) at [13] and [14] that a party needs to take extra care if they seek to issue a subpoena to an Addressee that is overseas as:
‘[t]he need for compliance with international law and international comity is an extremely important consideration’.
In Titan, the Applicant sought leave to issue subpoenas on four (4) international entities:
- Google Inc. (Google), based in the United States;
- Yahoo! Inc. (Yahoo), based in the United States;
- Microsoft Corporation (Microsoft), based in the United States; and
- Google Asia Pacific Pte Ltd (Google AP), based in Singapore.
In the weeks prior to the hearing, the Applicant contacted Google and Yahoo explaining their intention to subpoena and the nature of the documents and asked for confirmation that they were the appropriate Addressees. They received the following responses:
- Google explained that the information requested was to be obtained by Google AP, who generally required formal legal process before they disclosed that type of information. The Applicant did not contact Google AP to find out more information.
- Yahoo said the email should be sent to non-law enforcement personnel and provided the relevant contact details. The Applicant did not contact these persons.
The Applicant also contacted Microsoft, however this was done three (3) days before the hearing and no response had been received.[2]
One (1) of the concerns raised in relation to the proposed subpoenas to Google and Google AP was that the documentation requested went beyond determining the identity of the Respondent and sought to establish their level of involvement in the alleged conduct.[3]
Edelman J concluded that, at a minimum, a party needs to show evidence of communication, or substantial attempts to communicate, with the proposed Addressee before seeking leave to issue a subpoena, which the Applicant failed to do.[4]
Applying for a subpoena
In order to issue a subpoena, a party will need to seek leave of the Court by:
- making an oral request at a hearing; or
- completing the Request for Leave to Issue Subpoena Form and filing it online, and include a copy of the draft subpoena.[5]
Paragraph 4.1 of the Practice Note also outlines the relevant forms to use depending on the type of subpoena being sought. The information to be included in the subpoena depends on the type of subpoena being sought and is outlined at paragraphs 5 and 6 of the Practice Note.
The details to be included in a request are:
- the relevance and importance of the information being requested to the proceeding;
- the reasonableness of the request, including whether it is practical for the Addressee to comply or if there may be any controversy regarding the request;
- whether the Addressee has been given sufficient notice; and
- why the party may not be able to obtain the information through other means.[6]
Service of subpoenas internationally
Once the subpoena has been issued, it needs to be served personally on the Addressee at least five (5) business days before the Addressee is required to comply. As soon as practicable after this, a copy is to be served on each other party to the proceeding.[7]
When serving a subpoena internationally, it must be done in accordance with a convention, the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (concluded 15 November 1965) (Hague Convention) or the law of the country in which the person is being served. For the purposes of this article we will be dealing with service pursuant to the Hague Convention.
When serving a subpoena internationally you must apply to the Registrar, in their capacity as forwarding authority, a request for service in accordance with Rule 10.64 of the Rules. The Registrar will usually be the judicial officer overseeing the matter and your application must include:
- Form 25 Request for service abroad;
- Form 26 Summary of document to be served; and
- a written undertaking, signed by the lawyer on the record for the applicant to:
- be personally liable for all costs incurred by the employment of a person to serve the documents or for the use of any particular method of service requested by the applicant;
- pay those costs to the Chief Executive Officer within twenty-eight (28) days after receipt from the Registrar of a notice specifying the costs; and
- give such security for those costs as required by the Registrar.
The Registrar will then forward the request and a copy of the subpoena to Australia’s Central Authority, being the Attorney-General’s Department, pursuant to Article 3 of the Hague Convention and they will forward these documents to the Central Authority in the country where the subpoena is to be served.
The Central Authority of the country where the subpoena is being served will then serve the document on the Addressee.
Because the subpoena goes through a number of people before it is actually served on the Addressee, service pursuant to the Hague Convention can take quite some time. However, Article 10 of the Hague Convention states that, provided the country which the subpoena is being served in does not object, you may send the subpoena directly to the Addressee via post.
In Kabbabe v Google LLC [2020] FCA 126, the Court allowed the Prospective Applicant to serve an originating application on the Prospective Respondent in accordance with Article 10 as:
- the solicitor for the Prospective Applicant had filed an accompanying affidavit stating the country where the person was to be served, the proposed method of service and that service was permitted by the Hague Convention;
- the Court had jurisdiction to hear the application;
- the proceeding fell within one (1) or more of the categories set out at rule 10.42 of the Rules; and
- the Prospective Applicant had a prima facie case for any or all of the relief claimed in the proceeding.[8]
The Court was also satisfied that the Prospective Applicant had made reasonable inquiries and taken other reasonably necessary steps to ascertain the description of the Prospective Respondent.[9]
It is important to note, however, that all cases allowing service internationally via post have been in relation to originating applications and not subpoenas. As rule 24.16 of the Rules specifically states that a subpoena must be served personally on the Addressee, service pursuant to Article 10 of the Hague Convention may not be possible.
Takeaways
A party should only seek leave to issue a subpoena if they have attempted to obtain the information by other means. If the proposed Addressee is overseas, it is imperative that the party seeking the subpoena takes all reasonable steps to contact them to request the information and assess the likelihood of them complying with the subpoena.
Further, as it could take some time for service to occur and it is currently unknown whether service via post would be granted by the Court, you should weigh up how important the information being sought is to the matter and whether you have the time to wait for it to be produced.
Links and further references
Legislation
Federal Court Rules 2011 (Cth)
Subpoena and Notices to Produce Practice Note (GPN-SUBP)
Cases
Titan Enterprises (Qld) Pty Ltd v Cross [2016] FCA 890
Further information about issuing subpoenas in proceedings involving overseas entities
If you need advice on issuing subpoena’s in proceedings involving overseas entities, contact us for a confidential and obligation-free discussion:
Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
T: +61 7 3221 0013 (preferred)
M: +61 419 726 535
E: mburrows@dundaslawyers.com.au
Disclaimer
This article contains general commentary only. You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.
[1] Rules, 24.12.
[2] Titan, [17] to [31].
[3] Titan, [24].
[4] Titan, [32].
[5] Rules, 24.01;Practice Note, paragraphs 3.1, 3.3 and 3.4.
[6] Practice Note, paragraph 3.5.
[7] Rules, 24.16; Practice Note, paragraphs 4.5 to 4.7.
[8] Kabbabe, [5]-[16].
[9] Ibid, [17].
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