In litigious matters, it is often the case that a third party has documents which may go towards proving (or disproving) a fact in issue in the proceedings. When this arises, the question becomes whether you can subpoena the documents, what form should the subpoena take and at what stage in the proceedings this is best done.
So just what is a subpoena?
Put simply, a subpoena “is an order to the recipient requiring them to attend Court to give evidence or to produce a document or thing to Court or both”.[1] The General Practice Note (GPN) issued by Alsop CJ on 25 October 2016 contains guidance on subpoenas and notice to produce. Paragraph 2.1 of the GPN says:
“The issuing party bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceeding”.
The requirements of form for the Subpoena
There are two (2) sources (excluding case law) that provide guidance on the allowable terms on which leave to issue a subpoena may be granted:
- the Federal Court Rules 2011 (Cth) (Rules); and
- the General Practice Note issued by the Federal Court.
Federal Court Rules 2011 (Cth)
In matters before the Federal Court a subpoena may be issued in in accordance with part 24 of the Federal Court Rules 2011 (Cth) (Rules). There are three (3) types of subpoenas that may be issued in accordance with the Rules. These are:
- a subpoena to give evidence – rule 24.13(1)(a) of the Rules;
- a subpoena to produce documents – rule 24.13(1)(b); or
- a subpoena to do both of those things – rule 24.13(1)(c).
This article focuses on the second type of subpoena – notice to produce a document or thing.
When can a party issue a subpoena? Rule 24.01 provides that:
“(1) A subpoena may be issued only with the leave of the Court.
(2) A party may apply to the Court for leave to issue a subpoena without notice to any other party.”
Without notice to the other side is usually referred to as being ‘ex parte’ – done in the interests of one side only.
Detailed requirements – Rule 24.13
There can only be one addressee for a subpoena – in other words a subpoena cannot name multiple respondents. The addressee should be identified by name or by description of office or position (r 24.13(2)).
A subpoena to produce documents must specify the date, time and place for production (r 24.13, see also r 24.14). The place specified for production will usually be the Court, or may be the address of any person authorised to take evidence in the proceeding as permitted by the Court (r 24.13).
A subpoena must be served personally on the addressee as soon as practicable (r 24.16) being no later than five (5) clear business days before the earliest date the addressee is required to comply with its terms (r 24.13(8)(a)(i)).
Rule 24.13(4) mandates that the document or thing to be produced must be identified, being consistent with paragraphs 3.5 and 6 of the GPN which state that a subpoena must not be used for ‘fishing’ for evidence or documents (outlined below).
Interestingly, while not a requirement of a subpoena itself, the Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with a subpoena by fixing an amount or by directing that it be fixed in accordance with the Court’s usual procedure in relation to costs (r 24.22; see also paragraph 4.6 of the GPN).
Requirements – guidance provided by the GPN
Firstly, the GPN provides that one obtains leave to issue a subpoena by:
- making an oral request to the docket judge or the judge who is responsible for dealing with the case management or hearing of the matter at a case management hearing, pre-trial hearing or other hearing; or
- completing and filing a Form NCF7 – Request for Leave to Issue Subpoena at the Court registry (Request).[2]
The Request must also include a copy of the proposed draft ‘Form 43B – Subpoena’ and a draft ‘Form 44 – Notice and Declaration for Production of Documents’.
Additionally, paragraph 3.4 of the GPN provides that the issuing party making a written subpoena request should eLodge the Request forms to the Federal Court.
To ensure the Request is not an attempt at ‘fishing’, paragraph 3.5 of the GPN provides that the Request must concisely state the reasons in support of the request including:
“(a) the apparent relevance and importance to the proceeding of the person to give evidence / documents the subject of the subpoena;
(b) the reasonableness of the request, including (to the extent known or anticipated) whether the request is practical to comply with and whether there is, or is likely to be, any issue of controversy regarding the nature, content or breadth of the request;
(c) whether sufficient notice has or will be given to the addressee. If an abridged period for service is sought, the Subpoena Request must nominate a particular date and explain the reason why short-service is appropriate and necessary in the circumstances;
(d) why it may not be possible or appropriate for the issuing party to obtain the documents / cooperation of the person to give evidence (as the case may be) through other procedures”.
Furthermore, paragraph 6 of the GPN provides that:
“A subpoena must not be drafted using unnecessarily wide or general terms. The subpoena must specify, with reasonable particularity, the documents to be produced and must avoid becoming a mechanism for “fishing” for evidence or documents. Broad subpoenas that contain imprecise or ambiguous terms may fail to obtain leave. Likewise, production sought in respect of time-periods or subject matter that appear irrelevant or lack connection to the issues in dispute in the proceeding may fail to obtain leave”.[3]
How can the issuing party access subpoenaed documents?
Access orders (otherwise referred to as inspection and uplift orders) are often made in Court on the return date on the subpoena. Permission to inspect, copy and uplift may also be given by a Registrar in the Registry prior to the return date.
To request to inspect and/or uplift documents, an applicant must complete and lodge the Form NCF8 – Uplift of Subpoena Material (Form). Rule 24.20 contains the rules relating to inspection and dealing with documents and things produced otherwise than on attendance.
However, a Registrar cannot permit inspection if the addressee, a party or a person with sufficient interest has lodged an objection in writing together with the grounds of the objection (see r 24.20).
Paragraph 8.1 of the GPN provides, if an access order has been made (or permission to access has been granted by a Registrar), the parties to the case may then inspect and copy the material in accordance with the terms of the order (or permission). Furthermore, material may only be physically removed from the Registry where the Court or a Registrar has given permission.
When can I issue a Subpoena?
A subpoena can be issued at any time during a proceeding so long as the applicant can satisfy to the Court that there are good reasons that support their giving leave for you to do so.
The best time to issue a subpoena will depend on the facts of the particular case. That said, where possible these sorts of things should not be left to the last minute!
Takeaways
Subpoenas can be useful mechanisms to require a party with knowledge of the issues in dispute to produce documents or attend Court to provide evidence. That said care needs to be taken to ensure that they are not too widely drafted to offend the Rules or the principles contained in the GPN.
Links and further references
Legislation
Federal Court Rules 2011 (Cth)
Subpoenas and Notices to Produce Practice Note (GPN-SUBP)
Further information about issuing subpoenas
If you need advice relating the issuing of subpoenas, 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] Subpoenas and Notices to Produce Practice Note (GPN-SUBP) paragraph 2.1.
[2] Subpoenas and Notices to Produce Practice Note (GPN-SUBP) paragraph 3.1
[3] Subpoenas and Notices to Produce Practice Note (GPN-SUBP) paragraph 6.1.
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