In our adversarial civil court system in Australia, each party is required to bring forward all evidence necessary to prove its claim or defence. Litigants commonly require third parties to produce evidence (whether in the form of actual witnesses or documents).

For example, let’s say that you are trying to prove that someone has fraudulently withdrawn or transferred money out of your bank account. You may already be in possession of your bank statements which show withdrawals on the relevant dates and perhaps even the accounts into which money has been fraudulently transferred, but they may not show who effected the withdrawals/transfers. You may then wish to obtain copies of any withdrawal slips or a photocopy of the ID that was shown to the bank for the withdrawals/transfers to take place. You will also want copies of the account statements for the account number into which your funds were illegally transferred.

To obtain those documents, you may request that the bank provides them to you, however, the bank is likely to say that you are not entitled to copies of someone else’s bank statements due to privacy laws. Therefore, to receive copies of the documents, you will need to have a court issue a subpoena to serve on the bank. Below, we look at how you can obtain these documents through a subpoena – what is it and the process involved.

What is a Subpoena?

A subpoena is a court order requiring a witness to attend court to give evidence or a person/company to produce documents to the court for evidence in a case. For a court to issue a subpoena, the party requesting it must already be involved in a matter.

‘Subpoena’ literally means ‘under penalty’ because a failure to comply with a subpoena can constitute a contempt of court for which a person can be fined or jailed (or both).

However, just because a court has issued a subpoena does not mean that the party that has requested it has acted properly. The other party may object to the subpoena because it will not produce any evidence relevant to the case or that it is too broad relative to what is necessary for the court (and the other party) to see.

Likewise, a person/company served with a subpoena may apply to have the court set it aside before the due date for compliance. It may do so on the grounds that the production of the documents would cause hardship due to their volume, or that there is a good reason (i.e. state security) why the documents should not be produced to the court.

Even after a party has provided documents to the court, they can still apply for an order that another party does not inspect them due to containing particularly sensitive or irrelevant information to the matter. 

What’s the Difference Between Discovery and a Subpoena? 

It is important to note the difference between discovery and the subpoena process. Discovery requires each party to a case to produce all relevant documents to the court and each party. A court will not ordinarily issue a subpoena regarding documents which parties should otherwise provide under their discovery obligations. 

Finally, before issuing a subpoena, it is important to work out which specific documents you are seeking and whether they are likely to be held by a particular person/company. Courts are unlikely to uphold subpoenas which are like a ‘fishing expedition’. Additionally, organisations may no longer hold documents from years ago if they are not required to do so under record keeping requirements. 

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If you have any questions on issuing how to issue a subpoena or how to object to a subpoena a party has issued, get in touch with our dispute lawyers on 1300 544 755. 

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