When collecting evidence in a court proceeding there may be persons and organisations, other than the parties to the proceedings which hold evidence that is vital to the case. If the owner of the evidence does not accept an inspection of the documents, subpoenas may be drafted to obligate them to produce the documents for inspection. The main difference between a subpoena and a Notice to produce is that a subpoena is directed to a third party to the proceedings while the notice to produce is an order directed to another party of the proceedings.
There are three different kinds of subpoena which result in different orders. A Subpoena to Produce obligates the receiver to produce documents to the court and a Subpoena to Attend to Give Evidence has the purpose of making the recipient attend court to give evidence at hearing. A Subpoena can also be made to make the recipient to attend court to give evidence at hearing and provide documents.
The Procedure of Issuing a Subpoena
There are slightly different rules in the different courts relating to the issuing of subpoenas. In the Small Claims division of the Local Court, the party to the proceedings needs to seek leave from the registrar at the Pre-Trial review to issue a subpoena pursuant to regulation 33.2 of the Uniform Civil Procedure Rules (UCPR).
When drafting a subpoena it has to be in the right form. It can only be addressed to one person or organisation and the addressee needs to be identified by name or by description of office or position. The subpoena also needs to identify which documents that are to be produced and the date, time and place for the production. The date specified in the subpoena for production has to be a date of trial or any other date ordered by the court. The subpoena has to be served five days before the earliest date on which it has to be complied with, this date has to be specified in the subpoena pursuant to 33.3 of UCPR. The subpoena needs to be personally served on the addressee and a copy needs to be served on each other party to the proceedings; 33.5 of UCPR. If the subpoena is served by a third party to the proceedings, that person has to fill out an affidavit of service.
There is a filing fee of $76.00 (standard fee) and $152.00 (corporations’ fee) for a subpoena.
The return of subpoena date is the date the court orders the addressee of the subpoena to bring the documents to court, if the documents are sent to the court by post they have to arrive on the subpoena date. On this date the parties can inspect the produced documents in court, the documents cannot be taken from the court unless the court orders otherwise (regulation 33.8 of UCPR). If some of the requested documents cannot be produced, the addressee must tell the court the reason why.
The court has to grant leave to access the documents produced under the subpoena which is done by making access orders. If a proposed access order is not included in the subpoena the court can make a default order but if the parties agree to a proposed access order, they do not need to attend court for the return of subpoena. Questions, objections and amendments to the proposed access order has to be argued on the return of subpoena date.
Compliance with subpoena
There is no need for an addressee of a subpoena to comply with the orders if conduct money has not been handed or tendered to the addressee a reasonable time before the date on which attendance is required. The addressee do not need to comply with the subpoena if it is served after the date specified in the subpoena as the last day of service pursuant to regulation 33.6 of UCPR. If the subpoena is not complied with and there is no valid excuse, there may be a contempt of court pursuant with 33.12 of UCPR.
Need Legal Advice?
For more information and legal advice, call our experienced solicitors on (02) 9233 7776 or email us.