Subpoenas
Under the Rules of the Family Court of Western Australia a party to proceedings may request that the Court issue a document directed to another person or company compelling that person or company to:
(a) Attend the Court to give evidence in the proceedings;
(b) Produce documents to the Court;
(c) Produce documents to the Court and attend to give evidence in the proceedings.
This is done by way of a document called a Subpoena.
At the time of service, the person/company receiving the Subpoena must be given sufficient money to enable them to travel between their place of residence or employment (whichever is appropriate) and the Court
A Subpoena essentially is an Order of the Court. It compels the person/company served with the Subpoena to do a certain act by a date and time specified in the Subpoena.
A party/company is not relieved from the obligations under a Subpoena unless excused by a formal Order of the Court.
Penalties for Non Compliance with a Subpoena
Where a person served with a Subpoena does not appear to give evidence, the Court on being satisfied that the person was duly served and tendered expenses, may issue a warrant for the arrest of that person and order that person to pay any costs resulting from their failure to appear.
The Warrant will authorise the arrest of the person and detention in custody until released by the Court. Pending finalisation of proceedings, the Court may direct that the person be released with or without security.
The traditional penalty for non compliance with a Subpoena to Produce documents was contempt of Court. The Family Law Act currently provides specific monetary penalties for failure to comply with a Subpoena to Produce. These include a fine of up to $6,000.00 for a natural person. In addition the Court has the power to imprison in relation to the non-production of documents.
Objections to a Subpoena
A person or company issued with a Subpoena may apply to the Court to have it set aside and be relieved from the obligations imposed by the Subpoena in limited circumstances.
Some (but by no means all) circumstances when a subpoena may be set aside are :
- if the Subpoena is in substance a Notice for Discovery;
- if the Subpoena makes oppressive or improper demands on strangers to the litigation;
- the document to be produced incriminates the person required to produce it;
- the document to be produced is privileged under the rules of Legal Professional privilege;
- The information sought in a Subpoena is wide, vague and ambiguous and amounts to a fishing exercise
- the Subpoena has been issued for a spurious purpose, for example harassment of the other party
Costs in Relation to Subpoenas
Under the Family Law Rules where a person incurs expense in connection with the production of documents pursuant to a Subpoena, that person may apply to the Court for an Order as to the assessment and payment of such expenses and the Court may make such Order as it sees fit. The same principle applies to any costs of appearing in respect of a Subpoena to Give Evidence.
November 2003
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