Australia: Subpoenas in Queensland: recent changes and practical tips

WHO SHOULD READ THIS

• Parties who may wish to request for subpoenas to be issued by Queensland courts, and non-parties who may be or have been served with subpoenas that have been issued by Queensland courts.

THINGS YOU NEED TO KNOW

• There have been important changes to how subpoenas are issued and operate in Queensland.

WHAT YOU NEED TO DO

• Be aware of your rights and responsibilities in respect of any subpoena you request or are served with.

On 24 August 2018, amendments to the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) came into effect, changing the way subpoenas are issued and operate in Queensland.

Background

In Queensland, subpoenas are orders of the court that compel a witness to:

• appear in court to give evidence;
• produce documents or things; or
• both.

Subpoenas may be issued by the court on the request of a party to the proceeding. Practically, this requires the issuing party to:

• prepare and file the request for subpoena; and
• serve the sealed copies of the subpoena.

Key changes

Recent amendments to the UCPR have resulted in significant changes to how subpoenas may be requested, issued and served, and how a recipient must comply with them.

The Uniform Civil Procedure (Subpoenas) Amendment Rule 2018 amends Chapter 11, Part 4 of the UCPR to:

• streamline online requests and allow for electronic issuing and service;
• clarify how documents can be produced and inspected under a subpoena; and
• specify how costs of complying with a subpoena are to be ordered.

Online processes

Prior to these changes, the process for requesting a subpoena required physical documents to be filed in and returned by the registry, and personal service to be effected on the witness. Although ordinary service was permissible under the rules, in practice personal service was required to ensure that the subpoena was received by the witness or came to the witness's attention and could therefore be enforced.

The process for preparing requests for subpoenas was also quite labour intensive, in that each subpoena required a separate form.

The recent amendments allow for subpoenas to now be issued electronically by the court (rule 414(3)). Although requests for subpoenas must still be filed in hard copy at the registry, a single request for subpoena form can now be used to request the issuing of multiple subpoenas (rule 414(3A).

However, it is important to bear in mind the amendments provide that a single subpoena can no longer be directed to more than one person (rule 415(2)), which was previously the case in respect of subpoenas to give evidence (now omitted rule 414(6)).

Subpoenas can also now be served by email (rule 421(2)). However, consistent with the previous position under the rules, for email service to be effective and enforceable, it must be proved that the subpoena was received or there was actual knowledge of it (rule 421(3)).

Production of documents

Previously the rules were largely silent on the process by which a subpoenaed party should provide documents to the registrar.

The changes clarify that a copy (including an electronic copy) of a document is adequate unless the subpoena states the original must be produced (rule 420A).

If more than one document is to be produced, a subpoenaed non-party must provide a list or index of documents on request by the registrar (rule 420(6)). Requests and objections to requests for inspection must be in writing, and the court has wider powers to make directions about the use, inspection and copying of subpoenaed documents held at the registry.

In order to avoid attending court when producing documents, a subpoenaed non-party now has to provide documents to the registry with two clear business days (as opposed to by the day before under the previous regime) (rule 420(4)).

Costs

The previous form of the rules allowed the court to make an order for the payment of any loss or expense incurred in complying with a subpoena. In practice, this often resulted in confusion and uncertainty about the scope of an order for payment to a subpoenaed witness.

Under the amended rules, any order made by a court requiring the issuing party to pay a witness's reasonable costs and expenses of complying with a subpoena must fix the costs in an amount or direct that they are fixed by assessment (rule 417). It is important to note that any order of this nature is in addition to:

• conduct money, being an amount that must be paid to a witness sufficient to meet their reasonable expenses for travel and accommodation for complying with the subpoena (rule 419(1)). Conduct money must be paid within a reasonable time before attendance is required; and
• any amounts payable as normal witness expenses (rule 419(2)), which include:
  • the attendance allowance payable under sections 13-21 of the Uniform Civil Procedure (Fees) Regulation 2009, to meet 'any loss of earnings or additional expenses incurred by a relevant person when the relevant person is necessarily absent from the person's place of employment, practice or residence to attend court' (section 13(1)(c)); and
  • in relation to a subpoenaed witness who is not a party to the proceeding, their costs of compliance under rule 418.

Practical tips

While the rules have changed the formal requirements regarding how subpoenas are to be issued, served and responded to, the substantive effect of subpoenas remains the same. Below we set out some practical tips for both issuers of subpoenas, and persons served with subpoenas.

A person who requests a subpoena should:

• ensure that the subpoena is properly addressed and directed to the appropriate person. If a subpoena is issued to a corporation, the appropriate entity must be named as well as a relevant person to whom it is to be directed (e.g. 'The Proper Officer'). If a subpoena is improperly addressed, the recipient can request that it be reissued, resulting in additional expense for the issuer;
• include an adequate description of:
  • the date, time and place for attendance and/or production of the documents; and
  • in the case of a subpoena to produce documents, the document or thing requested in the subpoena;
• ensure service has been properly effected, particularly if sent by email. To enforce a subpoena, it must be proved that:
  • the subpoena, or an imaged copy of the subpoena, has been received by the person to whom it is directed; or
  • the person to whom the subpoena is directed has actual knowledge of the subpoena.

We recommend only serving a subpoena by email if you are satisfied that it will come to the recipient's attention. You may not be satisfied of this if, for example, the subpoena is sent to a generic or shared inbox. In those circumstances, it may be preferable to personally serve the subpoena to ensure that it is enforceable.

A person who is served with a subpoena should:

• check that all formal requirements have been satisfied (e.g. addressed to the appropriate person). If any formal requirements have not been satisfied, you will not be required to comply with it in its current form. You may request that the subpoena be reissued in those circumstances, rather than run the risk that the subpoena is enforceable and therefore you are non-compliant;
• if the subpoena is for production of documents:
  • provide them to the registry at least two clear business days ahead of the date for compliance;
  • include an index if you are producing more than one document; and
  • only provide documents that fall within the scope of the request, and seek legal advice if you are unsure if a document should be provided;
• review the scope of the subpoena and consider whether there is any basis to object (e.g. on the basis of legal professional privilege, fishing expedition or oppressiveness). If there is, you may wish to immediately write to the party on whose behalf the subpoena was issued to request that it be withdrawn;
• be aware that subpoenas usually only give a relatively short time frame for compliance, and failure to comply could amount to contempt of court;
• if the requesting party changes the time and date for attendance and/or production, insist that change is in writing; and
• begin negotiating with the issuing party early about recovery of costs and expenses, having regard to the availability of orders for costs and expenses of complying with a subpoena, and any conduct money and normal witness expenses which may be payable.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.