See the full series on Subpoenas for Production and Notices of Non-Party Disclosure: Part 1 – Introduction; Part 2 – Relevance and Privilege; Part 3 – Using Documents for Other Purposes; Part 4 – Recovery of Costs and Negotiations.
The rules are slightly different across Australian jurisdictions in relation to making requests to third parties for documents, and it is the jurisdiction of the litigation between the parties, not the location of the recipient of the subpoena, which determines the rules which apply. Confusingly, there can be multiple different rules a party can use to seek documents from a third party, including a separate process for a notice of non-party disclosure[1] and a subpoena for production.[2]
For parties to litigation, the ability to issue a subpoena requiring a third party to produce relevant documents is an important avenue to obtain evidence that the litigants themselves may not have. For recipients a subpoena can be a burdensome process. Where a subpoena is received by someone within a business who is not legally trained, it can appear that the court has already approved the scope of the documents requested and ordered their production, which potentially leads to a failure to consider whether the subpoena is properly issued. Where documents are commercially sensitive, privileged or contain personal information, concerns may arise with respect to whether the information is being sought for an ulterior purpose, not the least of which will be the threat of being joined to proceedings as a defendant. The costs involved in complying are material, and the rights of parties to claim such costs are rarely well understood.
The reality is that although a subpoena is a Court order and sealed by the Court, it is issued at the request of a party to the proceedings. Solicitors for a party prepare the subpoena, and the Court does not endorse or approve the description of the documents required to be produced by the subpoena. As a result a subpoena, despite being a court order, can be set aside an abuse of process.[3]
The Distinction between Discovery or Evidence
It is helpful to keep in mind the distinction between a document obtained in the pre-trial phase of litigation (normally referred to as disclosure or discovery) versus a document sought for production at a hearing as evidence (being the traditional purview of a subpoena). In Queensland it has been held that issuing a subpoena under Rule 414 during the pre-trial phase, rather than the available avenue of a notice of non-party disclosure under Rule 242, is an abuse of process: Re: Leighton Contractors Pty Ltd v Western Metals Resources Limited [2000] QSC 027. The rules of disclosure impose higher obligations on the party seeking documents than apply through a subpoena, including requiring the documents sought are directly relevant and that service of other the other parties takes place giving them an opportunity to object. If an objection is raised, the notice is stayed until decided by a court by application brought by the party seeking the documents.[4]
The New South Wales rules have similar discovery processes during the pre-trial phase, including discovery to ascertain a prospective defendant’s identity,[5] discover of documents from a prospective defendant,[6] or discovery of documents from other persons.[7] Such applications all normally require an affidavit to be submitted to the court stating the facts on which the applicant relies.
These rules are quite different to those which apply to the issue of a subpoena for evidence. A subpoena is issued by the registry without the need for an application to court,[8] and compliance is compulsory unless a party objecting to production makes an application to challenge the validity of the subpoena.[9] The attraction of the subpoena process for those seeking document is clear, in that it is simpler and cheaper to issue a subpoena and the recipient is the on who needs to apply to court to set it aside if the scope of the subpoena is challenged.
In practice, applying the test in Leighton Contractors, anecdotally it would seem that subpoenas are used in an inappropriate way on a regular basis.
[1] Rule 242 Uniform Civil Procedure Rules 1999 (Qld) (“UCPR(Q)”)
[2] Rule 414 UCPR(Q)
[3] Hera Project Pty Ltd v Bisognin (No 4) [2017] VSC 270 at [37]
[4] Rules 246 and 247 UCPR(Q)
[5] Rule 5.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR(NSW)”)
[6] Rule 5.3 UCPR(NSW)
[7] Rule 5.4 UCPR(NSW)
[8] See Rule 414 UCPR(Q) and Rule 33.2 of UCPR(NSW)
[9] See Rule 416 UCPR(Q) and Rule 33.4 of UCPR(NSW)