This article explores subpoenas and subpoena objections including when you can object to a subpoena and the considerations of the Court when determining whether to uphold or set aside a subpoena, in whole or in part.
What is a subpoena?
A subpoena is issued to a person, business or entity to attend court and be cross examined, to attend court to give evidence and to produce documents, or to produce documents.
The most common form of subpoena issued is a subpoena to produce documents and the primary reason for issue is usually because a party to the proceedings refuses or is unable to give evidence in relation to certain issues relevant to the dispute.
How do I object to a subpoena? Subpoena Objections explained
A person has a right to object to producing a document under a subpoena.
A person objects to producing a document subpoenaed by, before the date specified on the subpoena for production of the documents, giving filing a notice of objection which includes the grounds of objection and serving it on each of the parties and the Independent Children’s Lawyer: r6.38 Family Law Rules.
The person objecting may inspect the documents first to determine whether to object to inspection of the documents.
I don’t think the subpoena is relevant
When subpoena objections are filed, a subpoena may be set aside if the documents requested are not relevant to the issues in dispute in the proceedings.
A party cannot embark on a fishing expedition in order to secure documents that they think will be helpful for their case.
Previously, the elements that ought to be satisfied to establish relevance, as set out in Alister & The Queen [1984] HCA 85, were:
- The Applicant must identify a legitimate forensic purpose for which access to the documents is sought; and
- It is on the cards that the documents will materially assist the Applicant’s case.
However, a substantial body of authority now makes clear that whilst establishing the above two elements will demonstrate relevance and a legitimate forensic purpose for issuing the subpoena, an inability to demonstrate the second element, i.e., that it is ‘on the cards’ that the documents sought will materially assist the subpoenaing party’s case will not automatically require that the subpoena be set aside or that access to the documents be refused: Hatton & Attorney-General [2000] FamCA 892; Trade Practices Commission v Arnotts Limited (No 2) [1989] FCA 340; Sharp & Dalton FamCA.
As described in Hatton, “production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or another, to the relevant evidence of the case.”
It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case.
More recently, the Courts have simplified the test and the above two elements are simply used as a guide to assist the Court to determine whether the applicant has demonstrated that there is apparent relevance in relation to the documents sought to be produced: Waterman and Waterman [2017] FamCA 394.
What is a legitimate forensic purpose and whose legitimate forensic purpose?
In Secretary of the Dpt of Planning, Industry & Environment v Blacktown City council [2021] NSWCA 145, the Court considered the meaning of legitimate forensic purpose and whether it was fatal that it cannot be shown that the documents subpoenaed will be likely to assist the case of the party issuing the subpoena or whether it is sufficient that the documents sought are ‘apparently relevant.’
The Court held that it is sufficient to justify a subpoena as having been issued for a legitimate forensic purpose if the documents specified are apparently relevant to the case, that is, there is a reasonable basis beyond speculation that it is likely that the documents subpoenaed will materially assist on an identified issue, as opposed to assisting in the issuing party’s case.
Thus in summary of the principles espoused in Blacktown:
- a subpoena will be issued for a legitimate forensic purpose if the documents sought are ‘apparently relevant’ to the issues in the proceedings.
- Documents will add in some way to the relevant evidence and be sought for a legitimate forensic purpose if they are capable of providing a legitimate basis for cross-examination or go to credit, irrespective of whether they are admissible documents according to the rules of evidence.
- An issuing party’s inability to show that the subpoenaed documents are likely to assist its case will not necessarily mean that the subpoena lacks a legitimate forensic purpose; however
- the absence of any apparent relevance of the subpoenaed documents to the issues in dispute may warrant the conclusion that the subpoena lacks a legitimate forensic purpose.
What about third party’s rights to privacy?
In determining subpoena objections, the Court must balance the competing right of the party seeking the production of documents relevant to issues in dispute, with the right of the third party to privacy where the documents may only be tangentially relevant, as opposed to materially relevant, to the issues in dispute.
The court will not require the production of documents which would only have a bearing upon an issue on an unreal, fanciful or speculative basis.
In Sharp & Dalton [1990] FamcA 63, the Family Court held:
“In many instances a mere consideration of the nature of perusal of documents in such a subpoena will disclose that they have or may well have relevance to the issues in the litigation. On the other hand consideration of the nature of the documents sought in such a subpoena may indicate with equal clarity that on the face of the subpoena the documents do not and cannot bear any relevance to the issues in the litigation. There is a significant area between these two extremes which is the area in which, it would appear, there is no simple guideline to follow. What is required, as I have stated, is a balancing of the competing and generally conflicting interests of the parties to the proceedings and the stranger to the proceedings. The Court will consider the nature of the documents specified and will determine as best it can the issues likely to arise. If it appears an issue may arise in litigation to which the documents may relate then I believe the right of the litigant should prevail over the right of the witness. Unless it appears that an issue may arise to which the documents may relate then the right of the witness will prevail…”
In summary, when the Court is determining subpoena objections, the rights of third parties are subordinated to the right of the litigant and the public interest of the preservation of the integrity of the Court’s process, where the documents are relevant to an issue in dispute.
Is the subpoena too broad / Oppressive to comply with?
If a subpoena is in terms which are too broad, it is liable to bet set aside. The Subpoena must specify with reasonable particularity the documents which are required to be produced.
If the subpoena is too broad, the party who has been subpoenaed may correspond with the issuing party’s solicitors to seek an agreement to narrow the scope of the subpoena, to enable compliance with the subpoena more easily. If agreement is not forthcoming, it may be necessary to apply to have the subpoena set aside or narrowed by the Court.
This can be done at the Subpoena Hearing, that will be listed following a notice of objection to the subpoena being filed.
The cost and inconvenience of locating the documents needs to be considered, and parties are well advised to take a pragmatic approach to the resolution of subpoena objections, by negotiating an agreement to reduce the scope of the subpoena, so that it covers only documents which are of material relevance, to enable compliance with the subpoena to be less expensive and inconvenient.
It is also in the interest of the issuing party not to put the recipient of the subpoena to considerable expense in producing documents which are irrelevant to the issues in dispute, given the issuing party will be required to meet the costs of the recipient for the purposes of production of the documents (known as ‘conduct monies’ paid to the recipient for compliance with the subpoena).
Are there other ways of obtaining the documents?
If the subpoena scope is appropriate, the next question to ask is whether the documents may be obtained directly from a party to the proceedings or from another source.
Part 6.1 of the Family Law Rules sets out the duty of disclosure of parties to proceedings. Under Rule 6.1 and 6.3 of the Rules, each party to a proceeding has a duty to the court and to each party to give full and frank disclosure of all information and documents relevant to the proceeding which are in that party’s possession or control. The duty of disclosure is ongoing until the proceedings are finalised.
In a family law proceeding, parties are required to file an undertaking prior to the first court event confirming they have complied with their duty of disclosure and acknowledging that breach of the undertaking may be contempt of court: r6.02 Family Law Rules.
If the document you request is not in the possession of another party to the proceedings, some other methods of securing the document are:
- Making a request to the source by joint correspondence from the parties;
- Seeking a section 69ZW order from the Court, where the documents sought are from Queensland Police and the Department of Child Safety;
- Asking the Independent Children’s Lawyer (if appointed) to request the documents
- Seeking an order from the Court, for production of a document or thing in possession of another Court: Rules 6.28 Family Law Rules.
The court is not permitted to issue a subpoena if the document is in possession of another court, and the appropriate method is through a request to the Court for the production of the document in possession of another Court.
When an Independent Children’s Lawyer (ICL) is appointed in family law proceedings, the first step is for the ICL to have the parties sign authorities to access records from different sources, for example, the children’s school and medical practitioners. The ICL can also issue a subpoena, and once appointed, it is generally preferable by the Court that the issuance of subpoenas is left to the ICL.
Are there criteria for issuing subpoenas / limits on the number of subpoenas I can issue?
A self-represented party may not request the issue of a subpoena without permission of the Court: Rule 6.27 Family Law Rules.
A party is at liberty to issue up to 5 subpoenas for production of documents and thereafter, must seek permission of the Court .
The Independent Children’s Lawyer can also issue of unlimited subpoenas without having to seek permission of the Court.
Setting aside all or part of a subpoena
Subpoena objections will be listed for Hearing and determination of the objection. The third party objector and all parties will be required to attend the Subpoena Hearing and after hearing from the parties, the Court will make a determination as to whether the subpoena should be upheld or set aside, having regard to the relevance of the documents to the issues in dispute.
The Court may make an order upon application of a party, setting aside all or part of a subpoena: Rule 6.33 Family Law Rules.
In X Pty Ltd v Merhi [2015], Justice McClelland held the court has the power to vary the terms of a subpoena as an alternate to setting it aside.
In Rigby & Kingston [2021], the proceedings involved the husband, the wife, the wife’s 2 brothers and 8 corporate entities.
The companies and trustees objected to production of some of the documents.
The named persons argued that the subpoena objections could be addressed by striking out certain words and entities from the subpoenas.
Her Honour Justice Carew referred to other Judges of the Court expressing a view that the Court has the general power to amend a subpoena but expressed she was skeptical that power existed, stating that the power to amend a subpoena pursuant to the rules only exists prior to the subpoena being served (interestingly also this is not in the new Family Law Rules updated in 2021).
Ultimately, Her Honour was not required to form a concluded view on the issue as the objections were dealt with by Her Honour making orders that the objection be upheld by relieving the named persons from producing particular documents pursuant to the issued subpoenas.
If the Court is unsure of the relevance of the documents to a particular proceeding, at a Subpoena Hearing, the Court may decide to make orders for the production and inspection of the documents and that such documents be viewed in chambers by the Court to determine the relevance of the documents and will subsequently make orders allowing or not allowing those documents to be inspected.
Use of documents only for the purpose of proceedings
A person who inspects documents under a subpoena may use the document only for the purpose of proceedings and must not disclose the contents of the document to any other person without permission of the Court: Rule 6.36 Family Law Rules.
The only exception to this is disclosing the documents to a party’s solicitor/barrister.
More questions about subpoena objections?
If you have been issued with a subpoena in a family law proceeding, and you are concerned about your right to privacy and relevance, contact our office to book an appointment with one of our experienced Brisbane Family Lawyers to have a discussion about the specific circumstances of your case.
