Better Subpoenas (Part Two)
This is the second article in which Suzanna Sheed and Alexander Sheed-Finck of SMR Legal explore the use of subpoenas in the family law context. Suzanna is a Family Law Specialist and has acted as an Independent Children’s Lawyer for many years. Subpoenas are an important part of the toolbox of an Independent Children’s Lawyer.
In the last article we wrote, we covered the legal issues associated with subpoenas including the Legislation, Rules and some of the cases.
In this article, we provide the practical information we have put together over many years of practice, which may assist the reader. We have referred to the Rules of the Federal Circuit Court of Australia in references throughout this article.
Preparing the Subpoena
The form is reasonably straight forward. Refer to FCC Rules Reg 15 A .02. Remember to address the subpoena to a person not just an organisation i.e. The Proper Officer, The Practice Manager, the name of the doctor. Also include a street address.
Be clear about whether you want the person to attend to give evidence, to attend to give evidence and to produce documents or just have the documents produced at Court for inspection. The latter is the most usual course. You should not assume that because you have subpoenaed the documents to the Court that they are admissible simply because they are there, you should turn your mind to how any of the documents you have subpoenaed, and which you may seek to rely upon, can be put into evidence.
The Court will complete the filing date, the date by which documents must be produced to the registry and also complete those details on page 2 of the subpoena in the relevant parts A, B or C.
In the Schedule you will set out what documents you are seeking and create a list. Number 1 will be “a copy of this subpoena.” Thereafter the documents you seek should be clearly articulated. For instance, for a bank you could be specific if you only want limited documents i.e.
1. a copy of this subpoena;
2. all bank statements for the past three years/five years/seven years for any accounts held in the name of JOE BLOGGS born 13 March 1963.
An alternative and more comprehensive subpoena for a bank might call for something along the following lines:-
2. in relation to ABC Pty Ltd:-
a) manager’s diary notes;
b) notes of interviews;
c) interbank memoranda;
d) loan applications;
h) bank files;
i) bank statements from XYZ date to the present date.
It is often sensible if you are serving a subpoena interstate to ring the relevant department or organisation, ask for their subpoena compliance section and find out to whom the subpoena should be addressed, their fax number and the conduct money required. Some large organisations also have information about their subpoena compliance section on their website, which may save you time. As a general practice we fax or email the subpoena with covering letter to the relevant organisation indicating that the original and the cheque for conduct money will be following immediately by post. This enables the organisation to commence work immediately particularly if there is limited time for compliance with the subpoena.
When you subpoena Victoria Police seeking police records you will normally get the LEAP computer printout. However, there may be occasions when you want to subpoena a particular local police station because of reports or incidents dealt with there. In such a case you should address the subpoena as follows i.e.
Officer in Charge
Benalla Police Station
Bridge Street West Benalla VIC 3672
You could consider requesting the following documents:-
– station records relating to JOE BLOGGS born 13 March 1963;
– records of all callouts, attendances/incident reports concerning the said JOE BLOGGS;
– all entries in any daybook or logbook kept by you or officers that your station, relating to any attendance or incident regarding the said JOE BLOGGS;
– any other documents, files, records, reports, briefs of evidence or LEAP records in relation to the said JOE BLOGGS.
If there is something in particular you want to inspect, specify it as best you can.
Filing This Subpoena with the Court
When you have prepared your subpoena you must forward it to the Court for issuing. We usually send three copies to the Court, one to be retained on the Court file, the other to be served and one for your file and/or brief to counsel. There is a $50 fee chargeable for the filing of a subpoena. However, you should consider whether your client is eligible for a fee exemption. If so, the appropriate form should be completed and sent with the letter to the Court when you are filing the subpoena. An Independent Children’s Lawyer is exempt from payment of the filing fee.
The present practice is that there is usually a limited period between the date when the subpoena is issued until the date for the return of the documents to be produced at the Court. This means you should act immediately to serve the subpoena as service is required 7 days (for attendance at Court) and 10 days before the production date for documents (FCC Rules Reg 15 A .04). Again, faxing a copy of the subpoena and covering letter to the relevant organisation is a good idea. Many government organisations such as Victoria Police and Department of Human Services will accept service by post. In other circumstances where personal service on an individual or local organisation is required you should arrange for a process server to do so immediately. In this case to conduct money an Affidavit of Service should be provided to the process server to complete.
You should remember when a subpoena is issued to a bank, accountants or other private organisations you must always pay conduct money. The Rules currently provide a payment of $25.00 (FCC Rules Reg 15 A .07) for a subpoena but many organisations charge differing amounts. A bank for instance may contact you to advise you that the documentation you have subpoenaed is very substantial and may cost a considerable amount of money. We have had letters back from the bank indicating amounts in the vicinity of $300.00, $500.00 to $3,000.00 by way of response to a subpoena. In your covering letter to such an organisation you should ask them to email or telephone you to give an indication of the costs they will be seeking for complying with the subpoena.
As long as there is no basis for objection, an organisation is required to comply with a subpoena upon provision of conduct money. However, that organisation is entitled to ask the Court for reimbursement of the reasonable costs of complying with the subpoena and is likely to be successful upon such an application (provided the claim is reasonable). Think about the scope of the subpoena. If you expect there to be a substantial amount of documentation be sure and ask for a quote in your covering letter before the person or organisation subpoenaed complies with the subpoena. You will often get an email or telephone call in response to such a request.
Many other organisations have set fees they require for compliance with subpoenas. For instance, the Victorian Police Commissioner will accept the $25.00 payment of conduct money. The Department of Human Services in Victoria similarly accepts that amount. A subpoena to the Queensland Commissioner of Police on the other hand requires payment of $72.45 and in New South Wales on the last subpoena we issued the fee was $71.00 with a higher amount if served on shorter notice.
Advising the Other Party or Affected Person of Issue of Subpoena
The Rules require that the other party/parties to the proceedings must be given notice of the subpoena. Prepare a letter to the other parties’ lawyers or directly to the other party if unrepresented enclosing a copy of the subpoena (see FCC Rules Reg 15 A .06).
When serving subpoenas you should remember that if you are seeking information in the subpoena about another person listed on the subpoena such as the mother, father, de facto partner, being a person who is not a party to the proceedings, they must also be served with a copy of the subpoena so that they have the opportunity to object (FCC Rules Reg 15 A .14) to the release of any material about them. In this case, a letter to the relevant person enclosing a copy of the subpoena will be required.
Release of Subpoenaed Material
When the date for return of the subpoenas to the Court has expired you should prepare and file your Notice of Requests to Inspect. These documents can be e-filed and thereafter the documents are made available for inspection unless an objection has been filed. Department of Human Services’ records cannot be photocopied unless the specific leave of the Court is granted. This is generally the case in relation to medical and police records. Financial and other documents in property proceedings can generally be copied. In certain instances the Independent Children’s Lawyer will be given leave to photocopy police and health records. It would be very rare for leave to be granted to photocopy Department of Human Services’ files. The subpoenaed records can be inspected at the Commonwealth Courts Building 380 William Street, Melbourne. There is an inspection room with desks and photocopying facilities available. A photocopying card can be purchased from the cashier, the current rate being $0.20 per page.
If you have a Court case coming up and want the subpoenaed documents to be available at a regional Circuit Court you can assume that if it is a final hearing the subpoenaed documents will be brought to the Court. However, if it is for any directions or interim hearing you should contact the Judge’s Associate at least 10 days before the first day of the circuit requesting that specific documents be brought to the Court for inspection.
The above information has been collated over time and we hope it will be useful to you. It is always a good idea to retain precedents and a folder containing the full details of to whom a subpoena should be addressed, complete address, phone number, fax number and conduct money required for each such organisation. Our personal assistants maintain and update this information and it is an invaluable resource for saving time in the preparation of subpoenas.
Most importantly, remember to read the legislation. In relation to subpoenas in the Federal Circuit Court, ensure that you read Rule 15A of the Rules of the Federal Circuit Court of Australia. In the Family Court of Australia and State Magistrates Court you should refer to The Family Law Rules, and in particular Rules 15.16 and following in relation to subpoenas.
Suzanna Sheed and Alexander Sheed-Finck
SMR Legal at Shepparton.