Federal
Court Amendment Rules 2003 (No 4) were published
in the Commonwealth Government Gazette of 23 December
2003 as Statutory Rule No 377 of 2003. Those Amendment
Rules commenced on 1 March 2004.
The Amendment Rules replaced Order 27 (Subpoenas) with
a new Order 27 and inserted a new Order 27A, which retains
the requirement that a subpoena may be issued only with
the leave of the Court or a judge. The new Order 27 gives
effect to the harmonised subpoena rules developed by
the Council of Chief Justices' Rules Harmonisation Committee.
The Amendment Rules also replaced Forms 41 (Subpoena
for Production), 42 (Subpoena to Give Evidence) and 43
(Subpoena for Production and to Give Evidence) in Schedule
1 with a new Form 41. The new Form allows the issuing
party to indicate whether the addressee is required to
attend to give evidence, produce a document or thing
or to give evidence and produce a document or thing.
All sections of the Form must be included. Parts of
the Form that are not applicable in a particular case
should be struck out by means of a line drawn through
the inapplicable parts.
Order 27A applies to a subpoena that is to be issued
under Order 27. A subpoena must not be issued without
the leave of the Court or a judge. Leave may be given
to issue a subpoena generally or in relation to a particular
subpoena or subpoenas and subject to conditions. An informal
application may be made by way of a letter that sets
out the following information:
1. Details of the connection of the person or documents
sought to be subpoenaed to the proceedings before the
Court;
2. In the case of a subpoena for production, an explanation
as to why a subpoena addressed to a non-party is the
preferred and appropriate course as opposed to non-party
discovery pursuant to Order 15A.
The power to grant leave to issue subpoenas has been
delegated to Registrars of the Queensland Registry pursuant
to section 35A of the Federal Court of Australia Act
1976 (Cth) as has the power under Order 27 rule 3(8)(b).
Order 27 rule 3(8) provides that:
A subpoena must specify the last date for service of
the subpoena, being a date not earlier than:
(a) 5 days; or
(b) any shorter or longer period as ordered by the Court
and specified in the subpoena;
before the date specified in the subpoena for compliance
with it.
If a shorter or longer period is sought, the subpoena
must be accompanied by a letter that sets out the grounds
and facts relied upon.
Practitioners are reminded of the provisions of Order
3 rule 2, which relates to the reckoning of a period
of time. Subrule 2(2) provides that where time is reckoned
by reference to a given day, the given day shall not
be counted. Subrule 2(3) provides that where the period
in question is a period of 5 days or less and includes
a day on which the registry is closed, that day shall
be excluded.
