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 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.

 

Subpoenas – Legitimate forensic purpose – VIC

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Subpoenas and the considerations for setting them aside were considered recently in Walters v Perton [2019] VSC 356.

The court in its probate jurisdiction, was considering an application to set aside two subpoenas under r 42.04 Supreme Court (General Civil Procedure) Rules 2015, which provides that a court may set aside all or part of a subpoena which is an abuse of process. The applicant submitted that there was no legitimate forensic purpose for the subpoenas.

At [30] the court succinctly stated the principles which govern an application to set aside subpoenas in civil cases, with reference to the leading authorities on legitimate forensic purpose. This is a useful statement of the principles and summary of the cases. At [30] the court noted:

(a) the subpoena process under Order 42 should not be used as a substitute for discovery or non-party discovery;

(b) it is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(c) except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;

(d) however, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ or that there is a ‘reasonable possibility’ that the documents will materially assist the case of the party.

(e) the subpoena must sufficiently describe the documents to be produced so as to not require the recipient to make a judgment about the documents being sought and must not be oppressive or fishing (a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted);

(f) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case. The test of relevance, however, may be a general one, particularly where the Court has only a general idea of the nature of the evidence which may be led as relevant to an issue or as to credit of an expected witness;

(g) A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in paragraph (c) must be satisfied; and

(h) Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.

The court also commented on legitimate forensic purpose in probate proceedings specifically. The court noted that legitimate forensic purpose in probate proceedings may be informed by the court’s inquisitorial role which requires a greater supervision and control of proceedings than adversarial common law proceedings.

This case has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

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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