Subpoena. Information for a person requesting the issue of a subpoena

Transcription

1 FAMILY COURT OF AUSTRALIA Subpoea Iformatio for a perso requestig the issue of a subpoea This brochure is for people who wat a court to issue a subpoea. It provides iformatio about, the use of ad compliace with, subpoeas i the Family Court. What is a subpoea? A subpoea is a legal documet issued by a court at the request of a party to a case. A subpoea compels a perso to produce documets or give evidece at a hearig or trial. There are three types of subpoea: a subpoea for productio a subpoea to give evidece, ad a subpoea for productio ad to give evidece. You ca request a subpoea if a perso refuses to give evidece or provide documets to a court, or is uable of their ow free will, to do so. Before you request a subpoea, you should make all attempts to get the required documet or evidece. This may iclude askig the perso to provide the documet to you or prepare a affidavit i support of your case. How do you apply for a subpoea? You eed to complete the form titled Subpoea that is approved by the Family Court of Australia. Uless a court orders otherwise, a subpoea must ot be served o a perso uder 18 years of age. I some situatios, you will eed to prepare a letter to support your request for a subpoea. For example, where there are less tha seve days before the court hearig date or where the request is made by a self-represeted litigat. For more iformatio about whe you eed to prepare a supportig letter, speak to registry staff. A party ca request a subpoea to produce documets for the hearig of ay applicatio seekig iterim, procedural, acillary or other icidetal orders. A subpoea for the hearig or trial of a applicatio seekig fial orders or i a appeal will ot be issued uless a judge or registrar gives permissio. A subpoea will ot be issued: for a self-represeted litigat, uless a registrar has give prior approval, or for a party seekig productio of a documet or thig i the custody of aother court (for the process to make this request see Rule of the Family Law Rules 2004). Note: there are special rules coverig subpoeas to be served i New Zealad. They ca be foud i Divisio of the Family Law Rules family court of australia This brochure provides geeral iformatio oly ad is ot provided as legal advice. If you have a legal issue, you should cotact a lawyer before makig a decisio about what to do or applyig to the Court. The Family Court caot provide legal advice.

2 Iformatio for the perso requestig a subpoea STEP 1 Complete the subpoea Whe completig the subpoea, keep i mid that: A subpoea must idetify the perso to whom it is directed by ame or by descriptio or office or positio (the amed perso). If you wish to subpoea a orgaisatio, the subpoea should be directed to a perso authorised to act o behalf of the orgaisatio, for example: The Officer XYZ Pty Ltd Some Street Some Tow NSW 0000 A subpoea may be directed to two or more persos if the subpoea is to give evidece oly or if the subpoea requires the productio of the same documets from each amed perso. A subpoea for productio must idetify the specific documet or thig to be produced. The documet or thig should be properly described so the amed perso kows what to produce. A subpoea must always require the productio of a documet or thig which already exists; that is, it caot require a perso/orgaisatio to create a documet to comply with the subpoea. A subpoea caot be writte i a way that requires the perso/orgaisatio to form a coclusio as to whether a documet or thig is relevat. For example, the subpoea should ot ask for all documets relatig to ay accout held by the applicat/respodet i a false ame. STEP 2 File the subpoea Oce you have completed the subpoea, you eed to file it at a family law registry. You will eed to file the origial ad at least two copies. The Court keeps the origial subpoea. The first copy is sealed (stamped) ad must the be served o the perso or orgaisatio beig subpoeaed. The secod copy is for you. If it is a subpoea for productio, you will eed eough copies to make sure that there is a copy for service o each other party, icludig the idepedet childre s lawyer (if appoited). STEP 3 Serve the subpoea As the perso who requested the subpoea to be issued, you must arrage for the subpoea to be persoally haded to the amed perso. You should give the amed perso as much otice as possible of the hearig or trial date. If the subpoea is ot served persoally, the amed perso is ot required to comply with the subpoea. At the time of service of a subpoea, the followig must also be served: coduct moey (page 3) if a subpoea for productio a copy of the brochure Subpoea iformatio for amed perso (served with a subpoea), ad a writte otice if you seek to ispect ad copy without the eed to atted the court date (see the otice o page 5). 2 Subpoea for productio oly I some cases, all parties ad the idepedet childre s lawyer (if appoited) may be automatically permitted to ispect ad copy ay documets produced uder a subpoea without the eed to atted o the court date. This situatio ca oly occur if: The subpoea is issued more tha 21 days before the court date. The amed perso, all parties ad the idepedet childre s lawyer (if appoited) are served with: ~ the subpoea, ad ~ a writte otice* that the perso requestig the subpoea iteds to rely o this provisio at least 21 days before the court date. You file a affidavit of such service, at least seve days before the court date. The amed perso produces the documets more tha seve days before the court date ad does ot object to ay party ispectig or copyig the documets. No party or idepedet childre s lawyer (if appoited) objects to ay party ispectig or copyig the documets by te days prior to the court date. If a perso objects to the ispectio or copyig of the documets that perso ad the party issuig the subpoea must atted the court date. At the court hearig the judge or registrar to decide whether to allow ispectio or copyig. * You may use the otice o page 5.

3 Coduct moey ad witess fees You are required to pay coduct moey to the amed perso. If you do ot provide this moey, the amed perso is ot required to comply with the subpoea. For a subpoea for productio, you must give the amed perso: Coduct moey sufficiet to meet the reasoable expeses of complyig with the subpoea. For example, the cost of idetifyig, copyig ad collatig the documets required. This will be at least the miimum amout of $10 or such other sum as agreed or ordered. For a subpoea to give evidece or a subpoea to give evidece ad produce documets, the coduct moey covers: Retur travel by public trasport from the perso s place of work or residece to court, ad A reasoable allowace for accommodatio ad meals durig the estimated time of persoal attedace at the hearig or trial. You must also pay witess fees for each perso you subpoea to atted court, as follows: All witesses: $75 for each day, or part of a day, that the perso is abset from their place of employmet or residece, i order to meet the requiremets of your subpoea. Expert witesses: such further amout as agreed or the Court allows. Note If a perso icurs a substatial loss or expese greater tha the set coduct moey or witess fee, a court may order that the issuig party reimburse these expeses. Does a perso have to comply with a subpoea? Yes, a perso must comply with a subpoea uless: the subpoea was ot served o the perso by had, or coduct moey was ot provided. If a perso does ot comply with a subpoea, a court may: issue a warrat for the perso s arrest, ad order them to pay ay costs caused by the ocompliace. A court may also fid the perso guilty of cotempt of court. Retur of exhibits ad documets that are produced The registry maager must retur a documet produced i compliace with a subpoea to the amed perso: Ca a perso object to producig a documet? Yes, a perso ca object to the productio of documets required by a subpoea for reasos such as: ot less tha 42 days after the order fially determiig the applicatio or appeal, or earlier, provided that seve days writte otice has bee give to the party who filed the subpoea of the itetio to retur the documet (this is oly for documets that have ot bee tedered ito evidece at a court hearig or trial). the documets requested are irrelevat the documets are privileged (for example, documets which came ito existece as a result of a lawyer/ cliet relatioship), or the terms of the subpoea are too broad. I this case, a party or a perso (amed or affected by a subpoea) may seek a order that a subpoea be set aside i whole or i part. How log does a subpoea remai i force? A subpoea remais i force util the first of the followig evets occurs: the perso complies with the subpoea the issuig party or a court release the perso from the obligatio to comply with the subpoea, or the hearig or trial is cocluded. Are there ay restrictios i usig a subpoeaed documet? A perso must oly use documets obtaied by subpoea for the purposes of the case ad must ot disclose the cotets or give a copy of a documet to ay other perso without the permissio of a court. The rules I the Family Court, the rules coverig subpoeas are set out uder Part 15.3 of the Family Law Rules

4 More iformatio Legal advice For more iformatio, icludig access to the Family Law Act, the Rules of the Courts ad ay of the forms or publicatios listed i this brochure: go to call , or visit a family law registry ear you. AUSTRALIAN CAPITAL TERRITORY Caberra ~ Cr Uiversity Ave ad Childers St caberra ACT 2600 If you have ay legal questios about subpoeas, you should get legal advice. You ca get legal advice from a: legal aid office commuity legal cetre, or private law firm. Court staff ca help you with questios about court forms ad the court process, but caot give you legal advice. NEW SOUTH WALES Albury ~ Level 1, 463 Kiewa St Albury NSW 2640 Dubbo ~ Cr Macquarie ad Wigewarra Sts Dubbo NSW 2830 Lismore ~ Level 2, Molesworth St Lismore NSW 2480 Newcastle ~ 61 Bolto St Newcastle NSW 2300 Parramatta ~ 1-3 George St Parramatta NSW 2150 Sydey ~ Goulbur St Sydey NSW 2000 Wollogog ~ Level 1, 43 Burelli St, Wollogog NSW 2500 NORTHERN TERRITORY Alice Sprigs ~ Level 1, Cetrepoit Buildig Hartley St Alice Sprigs NT 0870 Darwi ~ 80 Mitchell St Darwi NT 0800 QUEENSLAND Brisbae ~ 119 North Quay Brisbae Qld 4000 Cairs ~ Level 3 ad 4, 104 Grafto St Cairs Qld 4870 Rockhampto ~ 46 East St (Cr Fitzroy St) R rockhampto Qld 4700 Towsville ~ Level 2, Commowealth Cetre 143 Walker St Towsville Qld 4810 SOUTH AUSTRALIA Adelaide ~ 3 Agas St Adelaide SA 5000 TASMANIA Hobart ~ Davey St Hobart Tas 7000 Laucesto ~ Level 3, ANZ Buildig cr Brisbae ad George Sts Laucesto Tas 7250 VICTORIA Dadeog ~ Robiso St Dadeog Vic 3175 Melboure ~ 305 William St Melboure Vic 3000 WESTERN AUSTRALIA Perth ~ Family Court of Wester Australia 150 Terrace Rd Perth WA The Family Law Courts respect your right to privacy ad the security of your iformatio. You ca read more about the Courts commitmets ad legal obligatios i the fact sheet The Family Law Courts ad your privacy. The fact sheet icludes details about iformatio protectio uder the privacy laws ad where privacy laws do ot apply. 4 BRSUB V2

5 Notice to the amed perso To (prit ame of perso beig subpoeaed) With this otice you have bee served with a subpoea to produce documets. If: 1 you comply with the subpoea ad lodge the documets required by the subpoea at the Court specified i the subpoea at least seve days before the court date, ad 2 you do ot object to a party or idepedet childre s lawyer ispectig or copyig the documet, ad 3 o other party or perso objects to the documet beig ispected ad copied by the parties or the idepedet childre s lawyer the each party ad idepedet childre s lawyer is etitled, without a court order, to ispect ad take copies of the documets from seve days before the court date util the documets are retured to you, destroyed or the Court orders otherwise. A perso who ispects or copies the documet must: a) use the documet for the purpose of the case oly, ad b) ot disclose the cotets of the documet or give a copy of it to ay other perso without permissio of the Court. 5