Federal Court of Australia

Subpoenas

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.

District Registrar

23 February 2005

Version history

Subpoenas (Q2/2004, March 2004)
Subpoenas (Q2/2001, May 2001)