I Have Been Subpoenaed

What is a subpoena?

A subpoena is, in summary, an order to a person (called the addressee) requiring the addressee to:

  • attend at Court to give evidence
  • to produce a document or thing to the Court or
  • or do both things.

A subpoena may only be issued with the leave of the Court. A party (called the issuing party) may apply to the Court for leave to issue a subpoena without notice to any other party (ex parte). To request leave of the Court, the issuing party should complete and lodge the Request for Leave to Issue Subpoena Form (Form NCF7).

The issuing party bears the onus of demonstrating that the subpoena has a legitimate forensic purpose in relation to the issues in the proceeding.

The Federal Court Rules 2011 (Cth) (Federal Court Rules) make provision for the issue of a subpoena in Divisions 24.1 and 24.2 and parties and the addressees should be familiar with those provisions.

Serious consequences can occur if you fail to comply with a subpoena without lawful excuse, including contempt of Court and arrest.

The Court may order the issuing party to pay the amount of any reasonable loss or expense of a person complying with a subpoena. The Court will usually fix the amount to be paid, which is in addition to any conduct money.

What are Notices to Produce?

A Notice to Produce is issued by one party to a proceeding, to another party in that proceeding, where the first party seeks production of any document in a pleading or affidavit filed by the second party.

Leave of the Court is not required to issue a Notice to Produce.

The Subpoenas and Notice to Produce Practice Note (GPN-SUBP) provides further information relating to subpoenas and Notices to Produce, including guidance on:

  • how to apply for a subpoena
  • requirements for subpoenas, including forms, fees, the Addressee and Service
  • subpoenas to give evidence including Conduct Money and Witness Expenses
  • subpoenas to produce documents
  • how to make an application to set aside or object to production of documents
  • how to inspect and uplift documents
  • how to issue Notices to Produce

The Subpoenas and Notice to Produce Practice Note (GPN-SUBP) does not apply to an arbitral proceeding seeking to issue a subpoena under section 23(3) of the International Arbitration Act 1974 (Cth) (see r 28.46 of the Federal Curt Rules) or a person seeking leave to serve a subpoena in New Zealand (see r 34.66 of the Federal Court Rules).

What happens to documents or things produced to the Court under subpoena?

No person may access a document or thing produced unless the Court has granted leave or a Registrar has granted permission.

Inspection and uplift of documents

Access orders (otherwise referred to as inspection and uplift orders) are often made in Court on the return date on the subpoena. Permission to inspect, copy and uplift may also be given by a Registrar in the Registry prior to the return date. To request to inspect and/or uplift documents, an applicant must complete and lodge the Form for Uplift of Subpoena Material (Form NCF8). 

However, a Registrar cannot permit inspection if the addressee, a party or a person with sufficient interest has lodged an objection in writing together with the grounds of the objection (see r 24.20 of the Federal Court Rules).

If you object to all or some of your documents being inspected, copied or removed from the Registry, you should notify the Registrar in writing at the time you lodge your documents.

If an access order has been made (or permission to access has been granted by a Registrar), the parties to the case may then inspect and copy the material in accordance with the terms of the order (or permission). Material may only be physically removed from the Registry where the Court or a Registrar has given permission.

During the hearing of the case, some items of the material may be separated and tendered to the Court as "exhibits". This means that the particular item is being used as evidence for the party's case and the Court will refer to it by the exhibit number or letter.

When is the material returned?

Subpoenaed material that has become an exhibit will not be returned until the original case, the time limit for appeal and/or any appeal from the original case are concluded. The usual time limit for an appeal is 28 days, but sometimes this can be extended.

Any subpoenaed material that has not been made an exhibit, may be returned once the original case is finished. The Registrar must first give the issuing party at least 14 days notice of the intention to return the material. After 14 days have passed, the material may be returned to you.

Some material may not be returned

The Court will endeavour not to mark material, but any material that is marked by the Court may not be returned.

What should I do?

  • Keep a copy of your material: You are encouraged to retain a copy of material produced to the Court.
  • Tell us if you object to your documents being inspected, copied or uplifted: Please notify the Court in writing, at the time of lodging your documents or things produced under subpoena, if you object to them being inspected, copied or uplifted.
  • Tell us if you do not want your material returned: Please advise the Court, in writing, at the time of lodging the material with the Court, if you do not require your material to be returned and you give permission for it to be destroyed. If you subsequently change your mind, please advise us in writing that you withdraw the permission you gave to destroy the documents.
  • Tell us if you change your address or telephone number: Some Court proceedings are not concluded for long periods of time. Please notify the Court of any change in your address to enable return of your material.