Steps to Take When Served With a Subpoena

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What is a Subpoena

A subpoena is an order from a court requiring the addressee to attend court to give evidence, produce a record or thing or to do both. [1]

How to Comply with a Subpoena

As a subpoena is an order of a Court, it is important that the addressee complies with it. Failure to comply with a subpoena may result in the court issuing a warrant for the addressee’s arrest or order them to pay the costs incurred for non-compliance. Further, if the addressee does not comply with a subpoena they may be found guilty of contempt. [2]

Notwithstanding the above, an addressee may not need to comply with a subpoena where:

  • the addressee has not been provided with conduct money within a reasonable time prior to the date on which attendance is required;
  • the subpoena is served after the date specified in the subpoena as the last date for service;
  • the party issuing the subpoena has undertaken that they no longer need the addressee to comply with the subpoena; or
  • the court has made a subsequent order.

How to Object to a Subpoena

An addressee may object to a subpoena where they claim:

  • privilege against self-incrimination;
  • legal professional privilege; or
  • public immunity or confidentiality.

The first two-grounds are self-explanatory. However, the public immunity and confidentiality objections can be more difficult to rely upon. Confidentiality is not itself a ground to refuse inspection or production of any relevant document. This is due to the public interest in the administration of justice superseding the interest in confidentiality of the information. [3] However, confidentiality is an important consideration in determining the relevance of the document subpoenaed and whether the court should exercise its discretion to permit inspection.

Steps to take in Setting Aside a Subpoena

There are a number of reasons why a subpoena may be set aside. An application to set aside a subpoena will be determined by analysing whether:

  1. the production of the document is necessary and proper for disposing fairly of the proceedings; [4] or
  2. the process of the subpoena being issued has been abused. [5]

Abuse of Process

A subpoena will be set aside where it is an abuse of process. Circumstances which constitute an abuse of process include:

improper purpose:

Where a subpoena has been issued in circumstances that lack good faith or without the object and reasonable expectation of obtaining evidence that is relevant to the proceeding, it will be set aside. [6]

legitimate forensic purpose:

A subpoena may be set aside where the party who issued the subpoena cannot establish the legitimate forensic purpose for which the subpoena was issued. [7]

tantamount to discovery:

Where a document can be produced through discovery, a subpoena issued for the same document is tantamount and will be set aside as an abuse of process. [8]

 fishing expedition:

A subpoena will be considered a ‘fishing expedition’ where the subpoena is served for a purpose other than that which requires the production of specific documents or a specific class of documents which the addressee can be reasonably expected to hold and which are likely to advance the issuing party’s case. [9]

Oppressive

A subpoena may be set aside where it is oppressive for example when it is unduly burdensome due to the volume of documents requested that are insufficiently relevant to the issues in dispute. [10]

How to Recover Costs for Compliance with a Subpoena

Where the addressee of a subpoena is successful in setting it aside, the court may order the issuing party to pay the addressee’s costs. The scope of these costs include all costs associated with applying to have the subpoena set aside. [11]

Key Takeaways

At face value, compliance with a subpoena is of paramount importance. However, compliance does not necessitate that the documents requested on the face of the subpoena be produced. When served with a subpoena, the addressee should seek legal advice at the earliest opportunity if they have any questions or concerns relating to compliance.

 

[1] Rules of the Supreme Court 1971 (WA) Order 36B Rule 1.

[2] Rules of the Supreme Court 1971 (WA) Order 36B Rule 12(1).

[3] Apache Northwest Pty Ltd (379); Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996].

[4] Arhill Pty Ltd v General Terminal Co Pty Ltd (1990).

[5] Purnell Bros Pty Ltdv Transport Engineers Pty Ltd (1984).

[6] R v Baines [1909].

[7] NSW Commissioner of Police v Tuxford [2002].

[8] National Employers’ Mutual General Assn Ltd v Waind [1978].

[9] Alister v R (1983).

[10] Commissioner for Railways v Small (1938).

[11] Rules of the Supreme Court 1971 (WA) Order 36B Rule 11.

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