ByLawyers News and Updates

Subpoenas – FED

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A new Practice Direction concerning electronic inspection of material produced under subpoenas has come into force in the Federal Circuit and Family Court of Australia.

It applies to family law proceedings filed in the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) and replaces the Court’s Special Measures Information Notice – COVID-19 Electronic Subpoena Inspection.

The new practice direction is to be read together with the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

When seeking to inspect subpoenaed material, parties and legal practitioners must provide the following information in their request:

  • file number;
  • date and type of court hearing, conference or expert report;
  • specific material that access is being requested to, and whether it is ‘inspection only’ material (see below, as defined in rule 6.37(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021);
  • confirmation that a Notice of Request to Inspect has been filed;
  • whether electronic access to the material is sought;
  • a copy of photo identification or confirmation that they are a lawyer acting on behalf of a party, and the law firm at which they work.

Requests can be made by email. Each registry has a subpoena email address, as listed in the practice direction.

If the material to which access is sought is not inspection only material, and photocopy access is permitted, the registry will provide the material electronically if possible directly to the party or practitioner requesting the material, usually by email.

Inspection only material is:

  • child welfare records, criminal records, medical records and police records, as defined in the Rules; and
  • any other material excluded from photocopy access by order of the court.

Electronic access to inspection only material will not be permitted unless there are exceptional circumstances. Instead, the material needs to be inspected in person at a registry.

The practice direction also makes provision for the tendering of subpoenaed material at a hearing.

The By Lawyers Family Law Property Settlement and Children publications have been updated accordingly, along with the information about subpoenas in family law matters in the 101 Subpoena Answers reference materials.

Subpoena forms and processes – VIC

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Amendments to subpoena forms and processes in the County Court of Victoria commenced on 14 August 2023.

Chapters I and III of the County Court Civil Procedure Rules 2018 are revised as to subpoena forms and processes. The County Court (Chapters I and III Subpoena Amendment) Rules 2023 amend the prescribed civil and criminal subpoena forms.

The Rules now require subpoena recipients to respond using the eCase electronic case management system. The Registrar or Court must grant leave for any physical production. The eCase platform is mandatory for production, inspection, and objections.

The amended civil subpoena forms are:

  • Form 42A Subpoena to attend to give evidence – minor amendment;
  • Form 42AA Subpoena for production to Registrar – substituted form;
  • Form 42B Subpoena to produce – substituted form; and
  • Form 42C Subpoena both to attend to give evidence and to produce – substituted form.

The County Court Criminal Procedure Rules 2019 have also been amended.

The amended criminal subpoena forms are:

  • Form 1D Subpoena to attend to give evidence – minor amendment;
  • Form 1E Subpoena to produce – substituted form;
  • Form 1EA Subpoena both to attend to give evidence and to produce – substituted form; and
  • Form 1I Short service order subpoena – minor amendment.

From 14 August 2023, the Registrar will not issue any subpoenas that are not in the correct form. The new subpoena forms are available from the Victorian County Court website.

The By Lawyers Victoria guides County Court Litigation – Plaintiff and County Court Litigation – Defendant have been updated for the new subpoena forms and processes, including links.

New subpoena case – ACT

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A new subpoena case has been added to the By Lawyers reference manual 101 Subpoena Answers.

In Instyle Estate Agents Guhgahlin Pty Ltd v Hambrook [2020] ACTSC (26 October 2020) the court set aside a number of subpoenas in a civil matter, following Federal, NSW and previous ACT authorities.

The decision is particularly useful because it canvasses the plaintiffs’ four separate grounds for objection to the subpoenas, namely:

  • that they lacked a legitimate forensic purpose;
  • that they in effect sought discovery from non-parties, or alternatively, the terms of the subpoenas were impermissibly wide so as to constitute ‘fishing’;
  • that the terms of the schedules to each subpoena were so wide as to be oppressive; and
  • that the issuing party failed to pay both conduct money and money for the reasonable expenses of production.

McWilliam AsJ discussed and determined the court’s power and the applicable legal principles in respect of each of those grounds of objection.

This new subpoena case augments the many cases from all Australian jurisdictions to which links are provided in this helpful publication publication. It will particularly assist ACT practitioners in understanding and applying the law on subpoena objections.

101 Subpoena Answers is available in the Reference Materials folder on the matter plan in every By Lawyers litigation publication.

Subpoena objections – FED and All states

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A new case on subpoena objections has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

In Weeks v Nationwide News Pty Ltd [2019] WASC 268, the court considered whether a subpoena in a defamation case should be set aside for lack of  a legitimate forensic purpose (LFP).

The court succinctly stated the law on LFP, to the effect that The issuing party must identify expressly and with precision the legitimate forensic purpose for which they seek access to the documents. The issuing party must then satisfy the court that it is ‘on the cards’ that the documents would materially assist the issuing party in their defence‘.

In this regard the Court followed the leading LFP cases of R v Saleam (1989) 16 NSWLR 14 and Alister v R (1984) 154 CLR 404, 414. The Court also followed the earlier Western Australian full court decision of Stanley v Layne Christensen Co [2004] WASCA 50 regarding legitimate forensic purpose. The subpoena in this case was set aside.

This Western Australian decision has been added to 101 Subpoena Answers under the section on Legitimate forensic purpose in civil cases. This publication is an excellent resource for practitioners conducting litigation and dealing with subpoenas in all courts, whether issuing or responding, and including subpoena objections.

101 Subpoena Answers is available in all By Lawyers state court Litigation publications, as well as our Family Law, Family Provision, Injuries, Employment Law and Defamation guides.

 

Magistrates Court – Subpoenas – VIC

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New forms for Magistrates Court Subpoenas

The By Lawyers Victorian Magistrates’ Court – Civil guide has been updated to reflect recent changes to the Magistrates Court rules affecting subpoenas in civil matters.

The Magistrates’ Court General Civil Procedure (Miscellaneous Amendments) Rules 2018, which amend the Magistrates’ Court General Civil Procedure Rules 2010, came into effect on 15 October 2018.

These amendments make important changes to subpoena forms and processes in the Magistrates Court’s civil jurisdiction. The intention of the amendments is to harmonise Victoria with other Australian jurisdictions with regard to subpoenas.

Importantly, the existing form for Magistrates Court subpoenas, form 42A Subpoena to attend to give evidence, has been updated.

There are also two new forms for Magistrates Court subpoenas, forms – 42B, Subpoena to produce and 42C, Subpoena both to attend to give evidence and to produce.

For more information on Subpoenas generally, see the By Lawyers Reference Manual 101 Subpoena Answers located in the Reference Materials folder at the top of the matter plans in all By Lawyers litigation and criminal guides.

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