This is the first of two articles in which Suzanna Sheed and Alexander Sheed-Finck of SMR Legal explore the use of better subpoenas in the family law context. This month is part one; an introduction to family law subpoenas. Next month; tips for practitioners issuing subpoenas and some common bodies they may want to consider subpoenaing in family law matters and what to ask for.

There are many ways for family law practitioners to obtain knowledge. Complete instructions from clients, thorough searches and ensuring all parties comply with their obligation of full and frank disclosure go a long way. However, sometimes the picture remains incomplete; sometimes practitioners will require documentary and oral evidence that is not within the parties’ control or the clients’ knowledge. That kind of evidence is obtained by subpoena.

The subpoena is an important tool for family law practitioners. Its power and effectiveness should not be overlooked. Rule 15.36 of the Family Law Rules and Rule 15.23 of the Rules of the Federal Circuit Court provide that non-compliance with the a Subpoena may lead to the issue of a warrant for arrest of the person who has failed to comply, as well as an order for costs.

The subpoena process can be used for three purposes:

  1. to require a person to physically attend Court for the purposes of giving evidence, until excused by the Court;
  2. to require a person to physically attend the Court and to produce specified documents; or
  3. to require a person to produce documents only.

Usefully, particularly in property proceedings, documents obtained by subpoenas are, if they constitute “business records”, easily admitted into evidence (section 69 of the Evidence Act 2005 (Cth).

However, in using the subpoena process, practitioners must be careful not to get carried away.

Practitioners must ensure that subpoenas are drawn to avoid unnecessary expense. Moreover, subpoenas must be drawn to avoid the Court deciding to set the subpoena aside.

In terms of drafting time, subpoenas can be drawn quite quickly. However, practitioners should think: “penny-wise and pound-foolish”. A poorly drawn subpoena may cast the net too widely, which will attract the following unnecessary costs:

  1. A practitioner may find themselves wading through a morass of irrelevant documents to find that piece of information they are after—an activity that may have been avoided if the subpoena had been drafted in a more considered way (an unfair cost to the client in any time-based billing practice).
  2. A subpoenaed person or entity is entitled to be adequately compensated for the time and attention they, or its agents, spend in complying with a subpoena. The Court recognise that it would be an injustice if strangers to a proceeding were forced to meet the financial burden of attending Court and producing documents. A subpoenaed person will be entitled to be compensated for:
  •  their time in searching out, collating and copying documents (which is not to be calculated only by their hourly rate of pay but also by reference to add-on costs of their employment).
  • photocopying costs (if necessary); and
  • arguably, the actual expense of legal advice reasonably obtained by the subpoenaed person from a solicitor regarding questions of privilege and confidentiality.

Accordingly, a sloppily drafted subpoena could lead to a demand by the subpoenaed person or entity for substantial costs referable to compliance with a subpoena.

Moreover, practitioners must be cognisant of the various circumstances in which a subpoena may be set aside and draft accordingly. Such circumstances include where:

  1. a subpoena is improperly used for the purpose of discovery;
  2. the documents described in the subpoena are not described with reasonable particularity;
  3. the terms of the subpoena are so wide so as to be oppressive because it imposes an onerous task on a stranger to the litigation to collect and produce documents, many of which have no relevance to the issues in dispute;
  4. the subpoena is not for the purposes of the litigation but for some alternative, perhaps spurious purpose, such as the inspection of documents for the purpose of other proceedings;
  5. the material sought has no relevance to the issues in the principal proceeding;
  6. the subpoena has been served on a party in pursuit of a fishing exercise and in effect to obtain non-party discovery from a stranger to the litigation. A memorable form or words used to explain this ground is set out in Associated Dominions Assurance Society Pty Ltd v John Fairfax and Sons Pty Ltd (1955) 72WN (NSW) 250 where it was found:

    “…a distinction will always be drawn between fishing in a pool for fish of a particular kind and dragging the pool to find out whether there are any fish there or not.”

Given the potential pitfalls and costs consequences, solicitors should always plan and carefully draft their subpoena.

Practitioners should familiarise themselves with the various rules relating to subpoenas. Some of the key rules to keep in mind are as follows:

  1. Permission of the Court is required where a party seeks to issue more than five subpoenas in the Federal Circuit Court Rule 15a.05.
  2. There is no restriction on the number of subpoenas that can be issued in the Family Court (Rule 15.21), but pursuant to the Trial Management Rules of the Family Law Rules, permission of a Judge is required before a party can issue a subpoena where proceedings are for final and not interim orders (Rule 16.04(1)(a)(iv)).
  3. The time for service of a subpoena is specified at Rule 15.28 of the Family Law Rules and Rule 15.14(3) of the Rules of the Federal Circuit Court.
  4. Rule 15.28 of the Family Law Rules and 15.16 of the Rules of the Federal Circuit Court provide how a subpoena is to be served.
  5. If the subpoena is issued under the Family Law Rules, the person served must also be served with a brochure (Rule 15.28(1)(a)(iii)).
  6. Unlike some other jurisdictions, Rule 15.30 of the Family Law Rules provide a procedure whereby parties (including the ICL) are automatically entitled to inspect and copy documents without the need to first attend on the return date of the subpoena and make an application for leave to inspect and photocopy documents.

Next month we will continue with our topic of better subpoenas as we cover some of the agencies that practitioners will find themselves subpoenaing on a regular basis and some practical tips for issuing those subpoenas.

Jump to Part Two of Better Subpoenas here.