Subpoenas are formal court documents which are served on a non-party to the proceedings for the purpose of either having that person produce certain documents, attend a hearing to give oral evidence or a combination of both. There are specific steps which must be taken to issue a subpoena, and there can be serious consequences for failing to comply with one. We set out some useful tips about subpoenas below, how to issue a subpoena as well as how to respond.
Subpoena to Produce v Notice to Produce and Discovery
You can only serve a non-party to the dispute proceedings with a subpoena. By comparison, a Notice to Produce is used when one of the parties to the proceedings is required to produce certain documents.
You cannot use a subpoena as a ‘fishing expedition’. A subpoena must be clear, concise and specific as to what documents a party is required to produce. A subpoena that is too broad or onerous can be set aside. Discovery, on the other hand, includes a wider scope and can result in a far greater number of documents produced as evidence.
Issuing a Subpoena
A party issuing a subpoena must file the prescribed document in the relevant court. At the time of filing, a filing fee must also be paid to the Court Registry. A party to proceedings commenced in the Small Claims Division of the Local Court or any party which is self-represented must seek leave from the court to issue a subpoena.
Once filed, a clerk must personally serve the subpoena on the named addressee. You must also provide a copy of the filed subpoena to all other parties to the proceedings. Importantly, if the recipient of a subpoena is outside the state where it was issued, additional steps must be taken to effect service properly and in person. A person is not obliged to comply with a subpoena if they were not served within the timeframe stipulated by the court on the subpoena.
Someone that has received a subpoena is not required to comply unless they are provided with ‘conduct money’. Sufficient conduct money is required to cover the reasonable expense of complying with the subpoena. Reasonable costs of compliance will include searching for, reviewing, collating and copying the relevant documents. If the subpoena requires you to attend court to give evidence, reasonable expenses will include your travel expenses and in some circumstances, compensation for your time.
Access to Documents
Once the subpoenaed documents have been produced to the court, the court will give directions to the parties in respect of the removal, inspection and copying of the documents. In most circumstances, the court will make general access orders. However, a party is entitled to make a claim for privilege on documents. Privileged documents are those that the opposing party is not entitled to inspect. For example, correspondence between a party and their solicitor will be considered privileged (covered by client-legal privilege). In those circumstances, the court is likely to order first access to the party claiming the privilege for seven days.
Where the documents produced contain confidential information, the court will make an order allowing that only the parties’ legal representatives inspect the documents.
Power to Set Aside
The court has a general power to set aside a subpoena. The court may set aside a subpoena for the following reasons:
- The request for documents is too general;
- The request is too onerous on the party that is required to produce the documents;
- Insufficient conduct money has been provided; or
- The request is considered an abuse of power, for example, a party is requesting documents for a purpose other than obtaining evidence which is relevant to the proceedings.
Consequences of Non-Compliance
Compliance is important when it comes to a subpoena that has been served on you. Failure to comply with the subpoena can result in the court issuing a warrant for your arrest, or the court may find you guilty of contempt of court. The court may also order that you pay any costs associated with your failure to comply.
If you have received a subpoena and believe that the request for documents is too onerous, or you don’t believe you have been provided with sufficient conduct money, it is a good idea to seek legal advice in respect of your obligations. If you have any questions, get in touch with our disputes team on 1300 544 755.