Federal Court of Australia

Form 41: Subpoena (modified to include heading, signature block and filing party's details as required by Order 41 of the Federal Court Rules)
Version: n/a
Rule: Order 27, subrule 3(1)

Guide to Form 41

Please read this guide and the form carefully. As the party requesting the issue of the subpoena, you are responsible for making sure all your paperwork is in order. Although the Court’s Registry staff can check your forms and other court papers for completeness (for example, they check for signatures, and that attachments are present and signed by an authorised person within your State or Territory) and give you information about the Court’s procedures, they can not give you legal advice and they are not responsible for the accuracy of your documents.

When should you use Form 41?

This form should be used if you want a person or corporation who is not a party to the proceedings:
· to deliver documents or a thing in their possession to the Court by a certain date; or
· to attend and give evidence at the hearing; or
· to produce documents or a thing and also give evidence.

If documents or things are produced, the parties can ask the Court for permission to inspect and copy them. The person producing the documents or things, or another party or a person with an interest in the contents of the documents or thing, may object to this, in which case the Court will decide whether they can be inspected or not.

If the person or corporation is located in New Zealand use Form 69A.

How do you issue a Subpoena?

1. Get a Form 41 and fill it out. This is the subpoena. You can get a copy of Form 41 from the Registry or download a copy from the Court’s website.

2. You need to ask the Court for permission (called ‘leave’) to issue the Subpoena. The procedure for applying for leave to issue a subpoena varies between the Registries – contact the Registry in which the application was commenced for further details on the steps to be taken.

3. In all cases you will need to pay a fee for the issue of a Subpoena. If you cannot afford this fee you can ask the Court to waive it. This means that you don't have to pay the fee. Some people are also exempt from paying fees (for example, if you have been granted Legal Aid or are the holder of a health care card). You can get a form to ask the Court to waive or grant an exemption from the fee from the Registry or download a copy from the Court’s website.

4. The original and a copy of the subpoena for each other party must be delivered to the Federal Court. You can do this by bringing the documents to the Court, or by posting or faxing them, or by sending them by the internet. This is called filing. More information about filing is available from the Registry and on the Court’s website.

Make sure you have a copy of the subpoena for yourself.

5. When leave has been granted Registry staff will stamp the original and the copies of the subpoena and write the time and date when the person to whom the subpoena is addressed must:
· produce the document or thing to the Court; or
· attend to give evidence; or
· produce the document or thing and attend to give evidence.

In some Registries you will need to contact the Associate to the Judge who is responsible for the case to obtain the time and date. Contact the Registry for further details.

6. You must arrange for a copy of the subpoena to be personally served on the person to whom it is addressed at least five working days before the date when the person to whom the subpoena is addressed must:
· produce the document or thing to the Court; or
· attend to give evidence; or
· produce the document or thing and attend to give evidence.

For information about personal service see Order 7 rule 2 of the Federal Court Rules. The person must also be provided with conduct money at the time when the subpoena is served. Conduct money is an amount of money to cover the person’s reasonable expenses of complying with the subpoena, such as transport costs.

6. If the person incurs substantial expense or loss in complying with the subpoena the Court may also order that you pay them a reasonable amount of compensation in addition to any conduct money.

How to fill in your Subpoena

Please read all of these notes before you begin completing the Subpoena for Production.

These instructions assume that you are not represented by a lawyer.

Heading

In the spaces provided, write:
· the Court file number
· the name of each applicant
· the name of each respondent.

The heading of the subpoena for production must contain the same information as the heading of documents already filed in the proceedings.

Details of the person to whom the subpoena is addressed

Next to the word "To:", write the name and address of the person who is required to attend or produce.

If the subpoena requires production of documents or things by a corporation, the subpoena should be addressed to the “Proper Officer” at its registered office.

First section

Tick the appropriate box depending on whether you want the person to:
· produce a document or thing to the Court; or
· attend to give evidence; or
· produce a document or thing and attend to give evidence.

Last date for service

This date will be inserted by the Registry.

Filing details

In the spaces provided write:
· your name
· your address for service.

Note: your address for service is an address to which the Court or the respondent can deliver or send letters or documents to you. The address must be in Australia. The address must be a street address and cannot be a Post Office Box.

You need only complete either Part A OR Part B OR Part C of the form.

Part A

This Part is used if you want the person to attend to give evidence only.

The date, time and place for attendance will be inserted by the Registry.

Part B

This Part is used if you want the person to produce a document or thing to the Court only.

The date, time and place for production will be inserted by the Registry.

Part B - Schedule

Write a description of the documents or thing to be produced. The description should be as concise and accurate as possible.

Part C

This Part is used if you want the person both to produce a document or thing and attend to give evidence.

The dates, times and places for attendance and production will be inserted by the Registry.

Part C - Schedule

Write a description of the documents or thing to be produced. The description should be as concise and accurate as possible.