23 Jan The Humble Subpoena – Part 1
Sometimes, family lawyers can become a little Subpoena slap-happy, filing a raft of Subpoena when alternate options are available.
Subpoena serve their purpose, but usually only after either a request for the provision of documents has been made of the other party and that request unanswered and/or a Court Order for disclosure of particular documents not complied with.
In some cases, Subpoena will be necessary to obtain information from third parties to assist a litigant in furthering their case, but in most instances the disclosure process will be sufficient (being the mandatory requirement for each party to provide copies of all documents relevant to the case to the other party).
Occasionally, a lawyer (often on their own volition, given clients are usually guided by their lawyer in respect to whether to seek to issue a Subpoena) will file a baseless or “too broad” Subpoena.
Both the third party to whom the Subpoena is directed and the other litigant to the dispute are entitled to object to the Subpoena for various reasons.
Two examples where recently our Legal Practitioner Director has successfully objected to Subpoena are summarised below.
In a recent case, a general practitioner (i.e. not a specialist family lawyer) issued a raft of Subpoena including to the Immigration Department and to Medicare.
The Immigration Subpoena sought all documents relating to the Wife’s parent’s immigration matters.
The lawyer had then only sent a copy to the Wife, care of her lawyer by email. The service requirements for Subpoena are very clearly set out in the Rules of Court[i], which makes it mandatory that the Subpoenaed party be served in person (by hand) and a copy of the Subpoena to provide to all other parties to the litigation and any interested person.
The Immigration Subpoena was not served on the Wife’s parents, the subject of the Subpoena.
The Subpoena was objected to on two (2) bases – that the Subpoena had not been properly served and that the documents sought under the Subpoena were not relevant to the matter.
The Judge agreed and dismissed the Subpoena with a costs Order in favour of the Wife, which the Husband was required to pay (and subsequently did) despite the mistake seemingly being made by the lawyer and, presumably with little to no involvement from the Husband himself.
The Medicare Subpoena sought “all documents relating to the Wife”. No date range was provided and there was no particularity as to what information was being sought.
The Subpoena was objected to on the basis it was too broad, lacked particularity and the information sought was not relevant to the case. In that matter there was no allegation the Wife suffered ill health, whether on her own evidence or as alleged by the Husband.
After hearing submissions from both
lawyers, the Judge agreed the Subpoena was too broad and adjourned compliance
with the Subpoena to allow the Husband’s lawyer to refine it, including
requiring that the Husband’s lawyer provide further
details at the next Court event as to why the documents were relevant to the
proceedings. The Husband’s lawyer ultimately did not press the matter further.
[i] Rule 15A.06 Federal Circuit Court Rules 2001