A subpoena is a writ requiring a person to attend court and/or produce documents for the purpose of assisting with pending/active legal proceedings. The court or a registrar has the inherent power to issue a subpoena for the production of documents of its own accord or at the request of an interested party. Per rule 15A.13(2) of the Federal Circuit Court Rules 2001 (Cth), if a person subpoenaed has not made an objection by the date required for production, after that day the issuing party may inspect a subpoenaed document and take copies of it.

Procedure for Objecting to a Subpoena

Where the subpoenaed party wishes to object to the production of documents they must notify the registrar and the issuing party by completing a Notice of Objection. The Notice of Objection should state the grounds upon which the objection is mounted and must be filed with the court before the production date (Rule 15A.14 Federal Circuit Court Rules 2001 Cth). It is not permissible to refuse to answer a subpoena by simply asserting that the requested documents are not in the subpoenaed party’s possession.

What Facts/Documents Must be Presented to the Court Under a Subpoena?

If issued with a subpoena, what facts/documents must you present to the court? According to the general rule which has always prevailed, every party is bound to discover all the facts within his knowledge, and to produce all documents in his or her possession which are material to the case of the issuing party. This will be the case regardless of whether disclosure is contrary to the discloser’s personal interests and however fatal to the claim upon which he or she may have insisted. Under the law, a party is compelled to put forward all they know, believe or think about the matter in question (Harwood v Trustee of The Property of John Mervyn Harwood (a Bankrupt) [2015] FCCA 1058 at 17).

Policy Reasons Behind Requiring Strict Compliance With a Subpoena

It is a practice designed to further the ends of justice, in particular by avoiding the time-wasting and distractions that occur during the trial in dealing with objections to the production of documents. It is also designed to minimise the need for amendments of pleadings, for wasteful adjournments, and overall to enable the court to carry out its task of providing a speedy hearing of disputes (Southern Pacific Hotels Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 at 716).

Consequences for Failing to Comply with a Subpoena

If a person fails, without a lawful excuse, to comply with a subpoena, the court or a registrar may issue a warrant for the arrest of the person and order that person to pay any costs of their failure to comply (Rule 15A.16(1) Federal Circuit Court Rules 2001 Cth).

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If you would like to know more about subpoenas, your rights and obligations under an issued subpoena, or if you simply want more information about Federal Circuit Court procedures, get in touch with our disputes lawyers on 1300 544 755.

Vanja Simic

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