Subpoenas and Notices to Produce Practice Note (GPN-SUBP)

J L B Allsop, Chief Justice 25 October 2016

General Practice Note

1. Introduction

1.1 Subject to paragraph 1.2 below, this practice note applies to all proceedings in the Federal Court. It takes effect from the date it is issued and, to the extent practicable, applies to proceedings whether filed before, or after, the date of issuing.

1.2 This practice note does not apply to:

(a) a party to an arbitral proceeding seeking to issue a subpoena under s 23(3) of the International Arbitration Act 1974 (Cth) (see r 28.46 of the Federal Court Rules 2011 (Cth) ("Federal Court Rules")); or

(b) a person seeking leave to serve a subpoena in New Zealand (see r 34.66 of the Federal Court Rules).

1.3 In respect of appeals and related actions, parties should refer to the provisions in the Federal Court Rules relating to adducing further evidence, such as rr 36.57 and 33.29 (see also rr 33.34 and 33.40).

1.4 In this practice note, "issuing party" means the party at whose request a subpoena is issued; and "addressee" means the person who the subpoena is addressed to.

2. Subpoenas Generally

2.1 In this Court, a subpoena may be issued only with the leave of the Court. 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 make provision for the issue of a subpoena in Divisions 24.1 and 24.2 and parties and addressees should be familiar with those provisions.

2.2 A subpoena is, in summary, an order to the addressee requiring attendance to give evidence in Court or the production of a document or thing to the Court, or both (see r 24.12(1) of the Federal Court Rules).[1] There can be serious consequences flowing from a failure to comply with a subpoena without lawful excuse, including contempt of court (r 24.23) and arrest. [2]

2.3 Though a subpoena can be an important and useful means of establishing the facts in issue in litigation, given its nature and the expense and burden that it can place on non-parties and parties alike, it is an instrument that should be used with care and should not be used for inappropriate or unnecessary purposes.

2.4 The necessity for and appropriateness of a subpoena should be carefully considered by an issuing party before it is sought to be issued. Such considerations should occur at a relatively early stage in a proceeding and issuing parties should strive to eliminate the use of "last-minute" pre-trial subpoenas wherever possible.

2.5 When preparing a subpoena, issuing parties should be cognisant of the likely inconvenience and expense to the addressee (and other parties). For example, an issuing party should consider whether some inconvenience to the addressee might be ameliorated by additional time to comply, or by the narrowing of the categories of documents sought.

2.6 Equally, addressees should take a cooperative and practical approach to complying with a subpoena, understanding that the documents ordered to be produced in the subpoena may have a significant bearing on the litigation as well as the Court's ability to proceed efficiently with the case management of the proceeding.

3. How to Apply for a Subpoena

3.1 The issuing party may seek leave to issue a subpoena by:

(a) making an oral request to the relevant judge[3] at a case management hearing, pre-trial hearing or other hearing (an oral "Subpoena Request"); or

(b) completing the Request for Leave to Issue Subpoena Form ("Request Form") (which is available on the Court's website) and providing the Request Form to the chambers of the judge (via eLodgment) that includes details of the relevance of the person to give evidence and/or documents to be subpoenaed and the reasonableness of the request for leave (a written "Subpoena Request").

3.2 A Subpoena Request, whether oral or written, may be made without notice to the other parties or the addressee. If the Subpoena Request is likely to be of significant controversy, the issuing party should consider whether it would be appropriate to put the other parties and/or the addressee on notice prior to making the Subpoena Request.

3.3 An issuing party making an oral Subpoena Request should either:

(a) have a draft of the subpoena ready to hand up in Court; or

(b) provide a completed Request Form (before or after the oral Subpoena Request is made) in accordance with the procedure described below for a written Subpoena Request.

3.4 An issuing party making a written Subpoena Request should eLodge a completed Request Form which attaches a copy of the draft subpoena (in electronic Word Document format). The Request Form must specify whether the Subpoena Request (or a similar request) has been previously raised with or addressed by the Court.

3.5 A Subpoena Request, whether oral or written, must also make clear, in concise terms, the basis for the request for leave, including:

(a) the apparent relevance and importance to the proceeding of the person to give evidence / documents the subject of the subpoena;

(b) the reasonableness of the request, including (to the extent known or anticipated) whether the request is practical to comply with and whether there is, or is likely to be, any issue of controversy regarding the nature, content or breadth of the request;

(c) whether sufficient notice has or will be given to the addressee. If an abridged period for service is sought, the Subpoena Request must nominate a particular date and explain the reason why short-service is appropriate and necessary in the circumstances;

(d) why it may not be possible or appropriate for the issuing party to obtain the documents / cooperation of the person to give evidence (as the case may be) through other procedures.

3.6 Following a Subpoena Request, the subpoena may be issued (with or without conditions) in the form requested or in an amended form, or may be rejected for issuing. Alternatively, the issuing party may be requested to provide further information, including by way of an affidavit before further consideration is given to the Subpoena Request.

4. Specific Requirements for Subpoenas

4.1 Rule 24.13 of the Federal Court Rules provides that a subpoena must be in accordance with:

  • Form 43A - Subpoena to give evidence];
  • Form 43B - Subpoena to produce documents; or
  • Form 43C - Subpoena to give evidence and produce documents.

If using Forms 43B and 43C, refer also to paragraphs 6.3 to 6.4 below concerning the requirement to attach Form 44 to a subpoena.

4.2 In respect of the applicable fee for the issuing of a subpoena see Item 126 of the table in Part 1 of Schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth).

The Addressee

4.3 There can only be one addressee for a subpoena. The addressee should be identified by name or by description of office or position (r 2.13(2) of the Federal Court Rules).

4.4 If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer (see r 24.13(9) of the Federal Court Rules).

Service

4.5 A subpoena must be served personally on the addressee.[4]

4.6 Unless leave is given for short-service, the last date for service[5] of a subpoena on the addressee is the date 5 clear business days before the earliest date the addressee is required to comply with the subpoena (see rr 1.61 and 24.13 of the Federal Court Rules). Further to the timeframes noted above, an issuing party should make every effort to serve a subpoena at the earliest practicable opportunity in order to maximise the opportunity for compliance and minimise the burden of the subpoena on the addressee.

4.7 An issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee (r 24.16(2) of the Federal Court Rules).

5. Subpoenas to Give Evidence

5.1 A subpoena to give evidence must specify the date, time and place for attendance. The date specified must be the date of trial or another date permitted by the Court (r 24.13 of the Federal Court Rules, see also r 24.14).

Conduct Money

5.2 Conduct money[6] must be provided to the addressee at a reasonable time before the date that the addressee is required to attend court.

5.3 An issuing party should give careful consideration to the appropriate amount of conduct money to be provided to the addressee. The issuing party (and the addressee in response) must take a common sense approach to the question of the appropriate amount of conduct money sufficient to meet the reasonable expenses of the addressee attending court. Conduct money should cover the reasonable costs of travelling to court and should reflect the practical circumstances of the addressee, including any need for interstate or long-distance travel required for the addressee to attend court.

Witness Expenses

5.4 The question of whether, and if so how much, to allow for witness expenses is a matter of discretion for the Court.

5.5 Expert witnesses may be allowed an amount equal to their actual fees for preparing to give evidence and of attending to give evidence (item 17.2 of Schedule 3 to the Federal Court Rules).

5.6 Other witnesses may be allowed an amount equal to any wages or fees (less a deduction in relation to discretionary overheads) actually lost by reason of attendance at court to give evidence, subject to a daily cap (item 17.1 of Schedule 3 to the Federal Court Rules).

6. Subpoenas to Produce Documents

6.1 A subpoena must not be drafted using unnecessarily wide or general terms. The subpoena must specify, with reasonable particularity, the documents to be produced and must avoid becoming a mechanism for "fishing" for evidence or documents. Broad subpoenas that contain imprecise or ambiguous terms may fail to obtain leave. Likewise, production sought in respect of time-periods or subject matter that appear irrelevant or lack connection to the issues in dispute in the proceeding may fail to obtain leave.

6.2 If the documents sought can only be identified by reference to broad categories or subject matter so that the addressee is required to make assessments as to relevance to the issues in the proceeding, then non-party discovery should be considered as an alternative and may be appropriate.[7]

Form 44 – Notice and Declaration for Production of Documents

6.3 In respect of a subpoena requiring the production of documents, an issuing party must attach to the front of the subpoena a notice and declaration in accordance with Form 44.

6.4 The purpose of the notice and declaration is, firstly, to make clear to the addressee how the Court will deal with both original and copy documents that are produced and what sort of copy is acceptable and, secondly, to allow the addressee to declare the address to which any original documents must be returned and confirm that copy documents may be destroyed without further notice (see r 24.21 of the Federal Court Rules).

Return of Subpoena for Production of Documents[8]

6.5 A subpoena to produce documents must specify the date, time and place for production (r 24.13 of the Federal Court Rules, see also r 24.14). The place specified for production will usually be the Court, or may be the address of any person authorised to take evidence in the proceeding as permitted by the Court (see r 24.13).

6.6 The Court's approach to case management of subpoena-related issues is consistent nationally. However, efficient mechanisms exist in each registry to manage the return of subpoenas for production appropriate to the volume of subpoenas filed in each registry.

6.7 A registrar will usually conduct the "return of subpoena hearing" in open court. Alternatively the judge will hear the return of the subpoena, often in circumstances where the return date is during or close to trial. At the return of subpoena hearing, orders may be made in relation to any documents produced pursuant to the subpoena.

6.8 Example orders often used at return of subpoena hearings, information about return of subpoena arrangements in each registry and general subpoena information is available on the Court's website.

Compliance with a Subpoena and Form of Production

6.9 Production of documents (see r 24.17 of the Federal Court Rules generally) is ordinarily done in one of two ways:

  • by attending the Court in person at the relevant date and time; or
  • by delivering or sending the subpoena (or a copy of it) and the documents to the Court so that they are received not less than 2 clear business days before the relevant date and time.

6.10 Unless otherwise ordered, the addressee should comply with a subpoena by producing the required documents to the Court, not to the party issuing the subpoena or any other party.

6.11 When complying with a subpoena an addressee should, subject to appropriate objections (see Part 7 of this practice note), not only produce any documents required to be produced by the subpoena but also provide the Court with the following:

(a) a copy of the relevant subpoena;

(b) the Form 44 notice and declaration (which was attached to the subpoena when served) fully completed by the addressee; and

(c) a cover letter that clarifies whether the subpoena has been fully complied with and clarifies any objections raised (see further Part 7 of this practice note).

6.12 Unless the subpoena specifically requires production of the original document, the addressee may produce a photocopy or electronic copy of the document (r 24.17(6) of the Federal Court Rules).

6.13 In circumstances where it is practicable to do so, production of documents in an electronic form (for example, Microsoft Office or Adobe files on a memory card or stick) is preferred by the Court (see also r 24.17(7)(b) of the Federal Court Rules).[9] 

6.14 By way of guidance and to the extent relevant or applicable, for complex or large production in electronic form, the issuing party, addressee and other parties should give consideration to the matters set out in the Technology and the Court Practice Note (GPN-TECH) concerning discovery in electronic form.

Consent Matters

6.15 The issuing party and the addressee are encouraged to explore ways of resolving disputes relating to subpoenas at the earliest possible opportunity and should also consider the most efficient means for the issues to be heard or determined.

6.16 The Court will consider, in appropriate circumstances, dealing with the subpoena "on the papers" (ie. without the need for an appearance). The Court should be notified as soon as possible before the return of subpoena hearing of any consent orders sought to be made or which may be made without the need for appearances.

7. Applications to Set Aside and Objections to Production

Applications to Set Aside a Subpoena

7.1 Applications to set aside a subpoena or seeking other relief in respect of a subpoena may be heard by the judge or by a registrar. Such applications are required to be made on notice to the issuing party and the Court may order that the person making the application give notice of the application to any other party or to any other person having a sufficient interest (r 24.15 of the Federal Court Rules).

7.2 A fee is not payable in the Federal Court in respect of an application to set aside a subpoena.[10]

Objections to Production or Inspection of Documents

7.3 An objection may be dealt with at the return of subpoena hearing and/or may be listed for hearing at another time considered appropriate by the Court.

7.4 A person objecting to the production of documents arising from a subpoena (the "objector") must never do so frivolously and, wherever practicable, should address the issues the subject of the objection with the issuing party prior to the return of the subpoena in an endeavour to resolve the issues in question.

7.5 Usually, the objector is the addressee. Where that is the case, the objector should notify the Court and the issuing party about the objection as follows:

(a) the objector should set out the nature and grounds of the objection in a letter to the Court ("Objection Letter") together with any documents being produced (see paragraph 6.11 of this practice note;

(b) the Objection Letter should not merely raise blanket objections. It should concisely state the grounds for the objection, but with sufficient explanation or information to allow for the grounds to be clearly understood. It should also clarify whether the objection relates to all or part of the documents the subject of the subpoena and, if the objection extends to inspection of documents, clarify which parties the objection to inspection extends to and why;

(c) on production, documents that are the subject of an objection (eg. documents over which legal professional privilege is claimed) should be produced in a sealed envelope or package that is conspicuously marked with a note clarifying the nature of the documents contained within (eg. "privileged documents") and be accompanied by a descriptive schedule of the documents the subject of the objection ("Objection Schedule");

(d) the Objection Schedule must sufficiently describe each document that is the subject of the objection, including providing the following information, where applicable:

(i) the type and form of the document (eg. email, letter or file note);

(ii) the date and time of the document;

(iii) if correspondence, the author of the document and the recipients;

(iv) any other descriptor necessary to enable the Court and the issuing party to understand the nature of the document;

(v) the basis of the objection (eg. legal professional privilege).

7.6 Where the objector is someone other than the addressee, the objector should:

(a) consider whether any other person or party should be notified of the objection, including the addressee;

(b) to the extent applicable, follow the procedure set out above (for objectors who are addressees) including the use of an Objection Letter; and

(c) make the objection notifications as soon as practicable or, if time does not permit prior notice, by raising the objection at the return of the subpoena. When making the notification to the Court, if the objector is unable to eLodge the Objection Letter, the objector should email the Objection Letter to the presiding judge's / registrar's chambers.

8. Inspection and Uplift of Documents

8.1 Unless the Judge or Registrar otherwise permits, documents produced to the Court pursuant to a subpoena will not be capable of inspection or removal unless the Court has made an order permitting uplift and inspection of the documents.

8.2 The Court has a national procedure in respect of the uplift of documents from a registry. Subject to the Judge or a Registrar otherwise permitting, no uplift should take place unless an Uplift Form (which is available on the Court's website) has been completed by the person seeking to uplift the documents.

8.3 The Court's procedure for uplift has a number of key objectives, including reinforcing the requirement that the documents be kept in safe custody, recording on whose behalf uplift is sought and the identity of the person actually uplifting the documents, and identifying any date and time by which the documents must be returned.

8.4 As to inspection or removal of a document, or objection to inspection more generally, see rr 24.19 and 24.20 of the Federal Court Rules.

9. Costs and Expenses of Compliance

9.1 The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with a subpoena by fixing an amount or by directing that it be fixed in accordance with the Court's usual procedure in relation to costs (r 24.22 of the Federal Court Rules).

9.2 Such an order may be made on application by an addressee and the amount fixed will be in addition to any conduct money and witness expenses payable to the addressee (see Part 5 of this practice note).

9.3 Whether particular costs are costs of compliance with the subpoena is a question of fact. By way of illustration, the following categories of costs, if reasonably incurred, are costs that may be ordered to be paid; costs of:

(a) attending the return of subpoena hearing and other hearings where the subpoena is called on or adjourned;

(b) seeking advice as to validity, confidentiality and privilege;

(c) negotiating with the issuing party concerning the scope of the subpoena, the method of compliance with the subpoena or similar considerations.

9.4 The addressee should raise with the issuing party at an early stage in the compliance process any significant costs that are expected to be incurred in complying with the subpoena, including if third-party contractors are proposed to be engaged by the addressee with respect to production of documents.

9.5 The addressee and issuing party should use their best endeavours to reach an agreement concerning the costs and expenses of compliance and seek to do so, wherever practicable, prior to any significant costs and expenses being incurred.

10. Seeking Production of Documents by the Federal Court or Another Court

10.1 A subpoena will not be issued to produce a document in the custody of a court (see r 24.12 of the Federal Court Rules).

10.2 Where a party seeks production of a document that is in the custody of a court (including the Federal Court) the request must be made in writing and the procedures set out in r 24.24 of the Federal Court Rules apply.

11. Notices to Produce

11.1 A Notice to Produce may be issued by one party to a proceeding (the "first party") to another party in that proceeding (the "second party"). Leave of the Court is not required to issue a Notice to Produce.

11.2 A Notice to Produce may be made returnable before a judge or a registrar and shall be managed in a similar manner to the procedure for a return of a subpoena, as set out above.

Notice to Produce Document in Pleading or Affidavit

11.3 A Notice to Produce under r 20.31 of the Federal Court Rules is used in circumstances where the first party seeks production of any document mentioned in a pleading or affidavit filed by the second party. The pleading or affidavit must actually and directly refer to the document sought or it must be sufficiently apparent that the document sought is mentioned.

11.4 A Notice to Produce in Form 39 may be served on the second party, but should not be filed.

11.5 Within 4 business days of being served with a Notice to Produce, the second party should serve the first party with a notice under r 20.31(2) of the Federal Court Rules, addressing the necessary matters, including inspection or control of the documents and any relevant privilege claims.

11.6 If the second party does not give notice as required under r 20.31(2) or claims privilege over the documents the subject of the notice, the first party may apply for orders for production and inspection in accordance with the procedure set out in r 20.31(3). 

Notice to Produce at Trial or Hearing

11.7 The first party may serve on a second party a Notice to Produce in accordance with Form 61, requiring the second party to produce any document or thing in the second party's control at any trial or hearing in a proceeding (r 30.28 of the Federal Court Rules).

11.8 Such a Notice to Produce has the same coercive effect as a subpoena. Accordingly, the first party bears the onus of establishing that the documents sought have an apparent relevance to the issues in the proceedings. This procedure should not be used as an alternative to an application for discovery or for the purposes of "fishing" for evidence or documents.

11.9 The Notice to Produce should not be unduly burdensome. The first party should consider whether the documents sought are described with adequate specificity. The timing of the use of such a notice, particularly if it may impact on the preparation for trial or other hearing, is also an important factor for the first party to consider before issuing the notice.

12. Further Practice Information and Resources

12.1 For further information about Subpoenas and Notices to Produce including the following forms is available from the Court's website:

(a) Request for Leave to Issue a Subpoena;

(b) Uplift Form.

12.2 Further information to assist litigants, including a range of helpful guides, is also available on the Court’s website. This information may be particularly helpful for litigants who are representing themselves.

J L B ALLSOP
Chief Justice
25 October 2016



[1] Subsequent references to a "document" in Parts 2 – 10 of this practice note should be read to intend to refer to a document or thing.

[2] See also, to the extent applicable, Part 5 and following of the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF).

[3] This will usually be the docket judge or the judge who is responsible for dealing with the case management or hearing of the matter. Other than in exceptional circumstances, leave to issue a subpoena should not be sought from a duty judge. Registrars also have the power to issue a subpoena (see s35A of the Federal Court of Australia Act 1976 (Cth) and Schedule 2 powers in the Federal Court Rules) and may do so in certain circumstances.

[4] However, an addressee must comply with the requirements of a subpoena even if it has not been served personally on the addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements, see r 24.17(3) of the Federal Court Rules.

[5] For service generally, see rr 24.13, 24.16 and 1.61 and the definition of "business day" in the Dictionary (Schedule 1 to the Federal Court Rules).

[6] The term "conduct money" is defined in the Dictionary (Schedule 1 to the Federal Court Rules). See also r 24.17.

[7] As to non-party discovery generally, see r 20.23 and following; see also the Federal Court Rules (Division 20.2) and the Central Practice Note (parts 6, 8 and 10) regarding discovery more generally.

[8] A hearing to deal with any issue to do with production of documents in response to the service of a subpoena is commonly referred to as a "return of subpoena hearing".

[9] When producing copies of original electronic documents, the copies should be produced in a form that is as close as possible to the original form of the document and in a text searchable format wherever practicable.

[10] See regulation 2.08 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth).