Subpoena - Family Court of Western Australia

FAMILYCOURTOFWESTERNAUSTRALIASubpoenaInformation for a person requesting issue of a subpoenaPart 15.3 Family Law RulesThis brochure provides information about the use of a subpoena in the Family Court.The information is set out in the following parts:PART 1 General information about a subpoena.PART 2 Information for the person requesting the Court to issue the subpoena.PART 3 Compliance with a subpoena.PART 4 Return of exhibits and documents that are produced.PART 5 Further information and your rights.The Act, the Rules, the forms and the brochures referred to in this brochure can beobtained from the Family Court website. The forms and brochures can also be obtainedfrom any registry of the Court.Part 1General informationWHAT IS A SUBPOENA?A subpoena is issued by the Court at therequest of a party to a case when a personrefuses, or is unable of their own free will,to produce documents or give evidence ata hearing or trial.in a case started by An Applicationin a Case (Form 2), Application forDivorce (Form 3), Application –Contravention (Form 18),Application – Contempt (Form 19),Notice of Appeal (Form 20), afterthe hearing date has been fixed.There are three types of subpoena:a subpoena for production;a subpoena to give evidence;a subpoena for production and togive evidence.The Court’s Subpoena (Form 14) is the onlydocument the Court will issue as asubpoena.A subpoena must not be served on aperson under 18 years of age without theCourt’s permission.WHEN CAN A SUBPOENA BEREQUESTED?As a general rule, a party to a case can onlyrequest the Court to issue a subpoena:in a case started by An Applicationfor Final Orders (Form 1), after theTrial Notice has been issued.The Court will not issue a subpoena:at the request of a self-representedparty, unless the party has firstobtained the Registrar’s permissionto make the request; orfor production of a document orthing in the custody of another court(there is a process to seek adocument or thing from anothercourt, under Family Law Rule 15.34);before the issue of a Trial Notice in acase started by An Application forFinal Orders (Form 1) unless the Courtorders otherwise on the basis thatthere are exceptional circumstances.A party can only request three subpoenas forthe hearing of any of the following applications: an application for interim orprocedural orders; a child support application or appeal; a maintenance application.www.familycourt.wa.gov.au

Part 2A summary of the stepsto take when requesting thatthe Court issue a subpoenaSee Parts 1 & 2 of this brochure for detailsComplete the Subpoena (Form 14) to: produce existing documents; give evidence; or do both.Note the limits on what may be requested,when and how many subpoenae may berequested.Make copies of the completed Subpoena.File the Subpoena at the Court, which will‘seal’ it and set a time and place for theobligations in it to be met (court date).Arrange for service of the Subpoena.If subpoena toproducedocumentsonly, noteRule 15.30procedurewhich is setout on page 3opposite.NOTE: You maynot need toappear incourt.All othersubpoenas –attend Courton date andtime specified.STEP 1Completing the SubpoenaObtain a Subpoena (Form 14) from the FamilyCourt’s website at www.familycourt.wa.gov.auor any Registry of the Court. When completingit, keep in mind that:A subpoena must identify the person towhom it is directed by name or bydescription of office or position. If youwish to subpoena an organisation, thesubpoena should be directed to a personauthorised to act on behalf of theorganisation, for example:The Proper OfficerXYZ Pty LtdSome StreetSome Town, NSW 0000A subpoena may be directed to two ormore persons if the subpoena is to giveevidence only or if the subpoenarequires the production of the samedocuments from each person named.A subpoena for production must identifythe specific document or thing to beproduced.A document or thing requested in asubpoena should be properly describedso that the person subpoenaed knowswhat to produce.A subpoena must always require theproduction to the Court of a document orthing which already exists (that is, it cannotrequire a person/organisation to create adocument to comply with the subpoena).A subpoena cannot be written in a waythat requires the person/organisation toform a conclusion as to whether adocument or book is relevant. Forexample, the subpoena could not ask for‘all documents relating to any accountheld by the wife/husband in a false name’.2

Information for the person requesting the Court issue the subpoenaSTEP 2Have the Subpoena ‘issued’by the CourtOnce you have completed the Subpoena, youneed to ‘file’ it with the Court. To do this youneed to:Provide the Court with the original of theSubpoena and at least 2 copies.The Court keeps the original Subpoena. Thefirst copy is ‘sealed’ (stamped) by the Courtand must then be ‘served’ on the person ororganisation being subpoenaed. Thesecond copy is for you.If it is a subpoena for production you willneed enough copies to make sure thatthere is a copy for service on each otherparty (see below under Step 3,‘Additional requirements for a subpoenafor production’).The Court will give you two copies of thebrochure Subpoena – information for namedperson (served with a subpoena).Subpoena for production only –special procedure – Rule 15.30All parties and a child representative (if any)may be automatically permitted to inspectand copy any documents produced under asubpoena without the need to attend thecourt date, only if the following all occur: The subpoena is issued more than 21days before the court date.The named person and all other partiesand the child representative (if any) areserved with:~ the subpoena;~ a written notice that the personrequesting the subpoena intends torely upon Rule 15.30;*at least 21 days before the court date.You file an affidavit of such service, atleast 7 days before the court date.The named person produces thedocuments more than 7 days before thecourt date and does not object to anyparty inspecting or copying thedocuments.No party or child representative (if any)objects to any party inspecting orcopying the documents by 10 daysprior to the court date.If a person objects to the inspection orcopying of the documents that person andthe party issuing the subpoena must attendthe court date for a judicial officer to decidewhether to allow inspection or copying.* YOU MAY USE THE DETACHABLE NOTICE AT THEBACK OF THIS BROCHURE FOR THAT PURPOSE.CONTINUED PAGE 4 >>>>>>>>>>>>>>>>>>>3

CONTINUED FROM PAGE 3 >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>STEP 3‘Serving’ the Subpoena (with conduct money) and informing theother partyAs the person who requested the subpoena to be issued, you must arrange for the subpoena to bepersonally handed to the named person. You should give the named person as much notice aspossible of the hearing or trial date.At the time of service of a subpoena the following must also be served: conduct money (see below) if a subpoena for production – a copy of the brochure Subpoena – information for namedperson (served with a subpoena); and– a written notice if you seek that Rule 15.30 apply(see attachment).If necessary you should read the Court’s Service Kit as it may help you carry out service. If thesubpoena is not served personally, according to the Court’s Rules, the person you are asking theCourt to subpoena is not required to comply with the Subpoena.Additional requirements for a subpoena for production A person or organisation required by a subpoena to produce documents to the Court must begiven at least 14 days notice. In some circumstances a Registrar of the Court may givepermission for a Subpoena to be filed inside this 14 day period but generally would only dothis if there is written consent from the person named, stating that they will be able to complywith the subpoena within the shorter time period.A copy of the subpoena for production must be served on the named person and all partiesto the case and a child representative (if one has been appointed). If Rule 15.30 is to applyyou must also serve a copy of the notice and immediately file an Affidavit of Service (Form 7)to prove that this has been done.See also the specific requirements below about ‘conduct money’.Conduct money and witness feesYou are required to pay ‘conduct money’ to the person you subpoena. If you do not provide thismoney, the person is not required to comply with the subpoena. The amount to be paid is set outin Schedule 4 of the Family Law Rules. For a subpoena to give evidence or a subpoena to giveevidence and produce documents, the conduct money covers:Return travel by public transport from the person’s place of work or residence to the Court.A reasonable allowance for accommodation and meals during the estimated time of personalattendance at the hearing or trial.You must also pay witness fees for each person you subpoena to attend Court, as follows:All witnesses – $75 for each day, or part of a day, that the person is absent from their place ofemployment or residence, in order to meet the requirements of your subpoena.Expert witnesses – such further amount as agreed or the Court allows.4For a subpoena for production the person served must receive:Conduct money in a sum sufficient to meet the reasonable expenses of complying with thesubpoena. For example, the cost of identifying, copying and collating the documents required.This will be at least the minimum amount of $10 or such other sum as agreed or ordered.

Part 3Compliance with a subpoenaA person who has received a subpoena, must comply with it, unless Rule 15.24 applies(see below). Failing to comply with a subpoena is a serious offence.How long a subpoena remains in forceA subpoena remains in force until the first of the following events occurs: the subpoena is complied with; the issuing party or the Court releases you from the obligation to comply with thesubpoena; the trial or hearing is concluded.When compliance with the subpoena is not required (Rule 15.24)The person named in a subpoena, is not required to comply with the subpoena if: the subpoena was not served on the person by hand; or conduct money has not been provided.Objections to a subpoena for productionA person may object to the production of documents required by a subpoena for reasonssuch as: the documents requested are irrelevant; the documents are ‘privileged’ (eg. documents which came into existence as a resultof a lawyer/client relationship); the terms of the subpoena are too broad.If a person wishes to object in this way the person must complete, file and serve Part F ofthe subpoena at least 10 days before the court date, and attend court on that date.Setting aside the subpoena or other ordersOn application by a party, a person affected by a subpoena or a named person, the Courtmay order that: a subpoena be set aside in whole or in part; and a party pay the loss or expense relating to the attendance of a person or productionof a document in compliance with a subpoena.Use of documents obtained by subpoenaA person must only use documents obtained by subpoena for the purposes of the caseand must not disclose the contents or give a copy of a document to any other personwithout the Court’s permission.Part 4Return of exhibits and documents that are producedThe Registry must return a document produced in compliance with a subpoena to thenamed person: not less than 42 days after the order finally determining the application or appeal (if any);or earlier, provided 7 days written notice has been given to the party who filed thesubpoena of the intention to return the document.5

Part 5Further information and your rightsIf you want more information about the procedure regarding subpoenas you may phoneany registry of the Family Court of Australia or, if in Western Australia, the Family Court ofWestern Australia.If you want more information on your legal rights or obligations or you wish to obtainindependent legal advice, you need to contact a lawyer. If you have any difficultyobtaining independent legal advice, you might get assistance from a law society, a legal aidoffice or a community legal centre.CONTACT DETAILSRegistriesALBURY (02) 6021 8944ALICE SPRINGS (08) 8952 8222ADELAIDE (08) 8205 2666BRISBANE (07) 3248 2200CAIRNS (07) 4041 2377CANBERRA (02) 6267 0511COFFS HARBOURContact theBrisbane Registry (07) 3248 2200DANDENONG (03) 9767 6200DARWIN (08) 8981 1488DUBBO (02) 6841 5000HOBART (03) 6232 1725LAUNCESTON (03) 6334 2111LISMORE (02) 6621 8977MELBOURNE (03) 8600 3777NEWCASTLE (02) 4926 1255PARRAMATTA (02) 9893 5555ROCKHAMPTON (07) 4921 2939SYDNEY (02) 9217 7111TOWNSVILLE (07) 4722 9333WOLLONGONG (02) 4226 8200WESTERN AUSTRALIAFamily Court of Western Australia (08) 9224 8222Communityadvisory servicesLEGAL AID OFFICES ANDCOMMISSIONSAdelaide (08) 8463 3555Alice Springs (08) 8951 5377Brisbane 1300 651188Burnie (03) 6434 6444Canberra (02) 6243 3411Darwin (08) 8999 3000Hobart (03) 6233 8383Launceston (03) 6336 2050Melbourne (03) 9269 0234Perth 1300 650 579Sydney (02) 9219 5000COMMUNITY LEGAL CENTRESACT WOMEN’S LEGAL SERVICE (02) 6257 4499 ORtoll free: 1800 634 669NSW Redfern (02) 9698 7277Kingsford (02) 9398 6366Marrickville (02) 9559 2899QLD Caxton (07) 3254 1811SATASVICWAWOMEN’S LEGAL SERVICE (07) 3392 0670Noarlunga (08) 8384 5222Parks (08) 8243 5521Hobart (03) 6223 2500Launceston (03) 6334 1577Western Suburbs (03) 9391 2244EASTERN COMMUNITYLEGAL CENTRE (03) 9877 5777Gosnells (08) 9398 1455Northern Suburbs (08) 9440 1663Sussex Street (08) 9470 2676LAW SOCIETIESACT (02) 6247 5700NSW (02) 9926 0333NT (08) 8981 5104QLD (07) 3842 5888SA (08) 8229 0222TAS (03) 6234 7877WA (08) 9322 7877Law Institute of VIC (03) 9607 93116© FAMILY COURT OF WESTERN AUSTRALIA29/03/04BRSubReq~V1

Notice to the named personTo(COMPLETE NAME OF NAMED PERSON)With this notice you have been served with asubpoena to produce documents. Please notethat if you:(i)(ii)comply with the subpoena and lodgethe documents required by thesubpoena at the Court specified in thesubpoena at least 7 days before thecourt date; anddo not object to a party or any child’srepresentative inspecting or copyingthe documents; andif no other party or person objects to thedocuments being inspected and copied bythe parties or any child’s representative;then each party and any child’s representativewill be entitled, without an order of the court toinspect and take copies of the documents from7days before the court date until the documentsare destroyed, returned to you or the Courtorders otherwise.A person who inspects or copies the documentsmust:(a)(b)use the document for the purpose of thecase only; andnot disclose the contents of the documentor give a copy of it to any other personwithout the Court’s permission.✃