What is a subpoena?

A subpoena is a legal document issued by the Court at the request of a party to a case. A subpoena compels a person to produce documents or give evidence at a hearing or trial.

There are 3 types of subpoena:

1. a subpoena for production

2. a subpoena to give evidence, and

3. a subpoena for production and to give evidence.

You can request a subpoena if a person refuses or is unable, of their own free will, to give evidence in your case or to provide documents to the Court that are relevant to your case.

Before you request a subpoena, you should try to get the document or evidence by, for example, asking the person to provide it to you.

You should not request a subpoena for production and to give evidence if production of the document/s and/or thing/s alone would be sufficient.

The rules covering subpoenas are set out in Part 16 of the Federal Circuit and Family Court (General Federal Law) Rules 2021 (the Rules).

How do I apply for a subpoena?

You will need to complete the Subpoena - General Federal Law and Migration form and file it with the Court.

You cannot request a subpoena to be issued to a person under 18 years of age unless the Court otherwise orders.

Unless you have permission from the Court, you must not request the issue of more than 5 subpoenas in a case.

To request the issue of a subpoena by the Court, take the following steps.

STEP 1: COMPLETE THE SUBPOENA FORM

When completing the Subpoena - General Federal Law and Migration form, keep in mind that:

• A subpoena must identify the person to whom it is directed by name or by description or office or position (person subpoenaed). If you wish to subpoena an organisation, the subpoena should be directed to a person authorised to act on behalf of the organisation, for example:

  The Officer
  
  XYZ Pty Ltd
  
  Some Street
  
  Some Town NSW 0000

• A subpoena may be directed to two or more persons if the subpoena is to give evidence only or if the subpoena requires the production of the same documents from each person subpoenaed.

• A subpoena for production must identify the specific document/s or thing/s to be produced. The document/s or thing/s should be properly described so the person subpoenaed knows what to produce.

• A subpoena must always require the production of document/s or thing/s which are known to already exist; that is, it cannot require the person subpoenaed to create a document to comply with the subpoena.

• A subpoena cannot be written in a way that requires the person subpoenaed to make a decision about whether a document or thing needs to be produced. For example, the subpoena should not ask for 'all documents relating to any account in a false name held by [the person subpoenaed]'.

• You cannot request the issue of a subpoena requiring the production of a document or thing in the possession of the Court or any other court. To seek a document/s or thing/s in the possession of a court you must give written notice to the court.

• The date for production of documents in a subpoena requiring production only will be fixed by the Court and will usually be two weeks from the date of filing. A subpoena requiring attendance of a person must be made returnable to Court when the case is listed for a hearing.

STEP 2: FILE THE SUBPOENA

Once you have completed the Subpoena form, you will need to file it with a court registry, using eLodgment. For instructions on how to use eLodgment, see the Federal Court website.

There is a filing fee for issuing a subpoena. You may be entitled to an exemption if, for example, you hold certain government concession cards or you can show financial hardship.

The Court will complete the details and add the Court's seal before sending it back to you for your records and to serve.

STEP 3: SERVE THE SUBPOENA

Service of subpoenas requiring attendance

If the subpoena requires the person subpoenaed to attend to give evidence, you must arrange to have the subpoena served by hand to the person subpoenaed. You should give the person subpoenaed as much notice as possible of the hearing or trial date but the person must be served not less than 7 days before they are required to attend. If the subpoena is not served personally, the person subpoenaed does not have to comply with the subpoena.

At the time of serving a subpoena, conduct money must also be served.

Service of subpoenas requiring production

If the subpoena requires the person subpoenaed to produce documents, you need to serve the subpoena at least 10 days before the date they are required to attend or produce the documents.

You do not need to serve a subpoena for production only by hand. Subpoenas for production only may be served on the person to be subpoenaed by ordinary service.

Service of copies of the subpoena on parties and interested persons

You must also notify the other parties involved in the proceedings and any other interested persons (named or affected by a subpoena) by serving a copy of the subpoena within a reasonable time before the date of production or court attendance. These copies can be served by ordinary service. If the subpoena requires production of document/s only, copies of the subpoena should be served at least 10 days before the date for production.

Note: You must serve a subpoena within three months of it being issued by the Court.

Does a person have to comply with a subpoena?

Yes. A person must comply with a subpoena unless:

• the subpoena was not served on the person in the way that the Rules require, or

• conduct money was not provided.

If a person does not comply with a subpoena, the Court may:

• issue a warrant for the person's arrest, and/or

• order them to pay any costs caused by the non-compliance.

Can a person object to attendance or producing a document?

Yes. A person can object to the production of documents required by a subpoena for reasons such as:

• the documents requested are irrelevant 

• the documents are privileged (for example, documents which came into existence as a result of a lawyer/client relationship), or

• the terms of the subpoena are too broad.

A party to the proceedings or an interested person may object to the material that is the subject of the subpoena being inspected or copied. They may also seek an order that a subpoena be set aside in whole or in part. They must complete and file a Notice of objection - Subpoena.

If there is an objection, you will receive a copy of the Notice of objection and the objection will be heard and determined by the Court.

How do I inspect or copy documents produced?

If the subpoena is for production only, and you as the issuing party have served the subpoena in compliance with the Rules and the person subpoenaed has complied with the subpoena and there is no objection made to the production, inspection or copying of the documents, you may on or after the production date, file a Notice of request to inspect.

The notice should be filed electronically with the Court, using eLodgment. For guidance on how to use eLodgment, see the Federal Court website. Contact the Court registry if you are unsure how to file the documents.

Once filed, the notice will be processed by the Court as soon as practicable.

There may be restrictions imposed on the copying or inspection of police and medical records (rule 16.13).

A copy may be provided to you. Alternatively, you may make an appointment with the registry to inspect the documents produced and take copies. Each party to the proceedings may also receive a copy of the subpoenaed material upon request.

If permission has been given only to view the documents, you will need to make an appointment with the Court registry.

How long does a subpoena remain in force?

A subpoena remains in force until the first of the following events occurs:

• the person subpoenaed complies with the subpoena 

• the issuing party or the Court releases the person subpoenaed from the obligation to comply with the subpoena, or

• the hearing or trial is concluded.

Are there any restrictions in using a subpoenaed document?

Yes. A person must only use documents obtained by subpoena for the purposes of the case and must not disclose the contents or give a copy of any documents subpoenaed to any other person (except the lawyer representing them in the case) without the permission of the Court.

Requesting documents from another court

If you wish to seek the production of document/s or thing/s in the custody of another court you must make a request in writing to the registry manager, setting out:

• the name and address of the court having possession of the document

• a description of the document to be produced

• the date when the document is to be produced by, and

• the reason for seeking production.

See rule 16.02 of the Rules.

What do I do if I am served with a subpoena?

When served with a subpoena, you must comply with it. If you do not comply with a subpoena, the Court may issue a warrant for your arrest, and order you to pay any costs caused by your non-compliance. The Court may also find you guilty of contempt of court.

Conduct money and payment for loss or expense incurred in complying with subpoena

If a subpoena requires you to attend court to give evidence, the person serving the subpoena must give you conduct money sufficient for return travel between your place of residence or employment (as appropriate) and the Court. The amount of conduct money must be at least $25. If you are not given this money, you do not need to comply with the subpoena.

If you are not a party in the proceeding and you will incur substantial loss or expense in properly complying with the subpoena, you may apply to the Court (in writing) for an order that the party who has issued to subpoena pay you an amount (in addition to the conduct money) for the loss or expense. If you wish to make such an application, you must, before complying with the subpoena, give notice to the issuing party that substantial loss or expense would be incurred in properly complying with the subpoena, including an estimate of the loss or expense.

Any claim for costs in attending court or producing a document under the subpoena must be met by the party issuing the subpoena and not the Court.

Complying with the subpoena

Subpoena to give evidence

If the subpoena requires you to give evidence, you must attend court on the date specified on the subpoena. If you object to the subpoena you may make an application to the Court to have the subpoena set aside in whole or in part.

Subpoena to give evidence and produce documents

If the subpoena requires you to give evidence and produce documents, you must attend Court on the date specified on subpoena and produce the documents set out in the schedule to the subpoena. If you object to the subpoena, you may make an application to the Court to have the subpoena set aside in whole or in part.

Subpoena for production of documents only

If the subpoena requires you to produce documents only, you (or an agent on your behalf) must produce the document/s or thing/s set out in the schedule to the subpoena (together with a copy of the subpoena).

It is preferable that you provide documents electronically (via email) if the issuing party has indicated this is acceptable.

If you cannot email the documents, you should either:

• attend the registry on or before the date and time for production, as set out in the subpoena, or

• post or deliver the document/s or thing/s not less than two days before the date fixed for production in the subpoena.

Do not send subpoenaed documents to the person who asked for the subpoena to be issued. The documents must be produced to the Court.

Can I object to producing the subpoenaed document/s or thing/s?

Yes. You can object to producing the document/s or thing/s subpoenaed for reasons such as:

• the documents requested are irrelevant

• the documents are privileged; for example, documents which came into existence as a result of a lawyer/client relationship, or

• the terms of the subpoena are too broad.

If you do not object to producing the documents, the parties and any interested person may have an automatic right to inspect the documents. If the documents are not criminal records, medical records or police records, they may also be copied.

Even if you have no objection to the documents being inspected or copied, a party or interested person may object.

If there is an objection, you will be advised in writing.

Can I produce copies of documents?

Unless the subpoena specifically requires the production of the original documents or things, you can comply with the subpoena by producing a copy of the documents.

Will the exhibits and documents that are produced be returned to me?

When producing subpoenaed documents, you may inform the Court that any document produced need not be returned and may be destroyed. In this case, the Court will destroy the document instead of returning it to you.

Otherwise, the Court must return to you any documents produced in compliance with the subpoena.

Information for person receiving a copy of the subpoena

The party issuing the subpoena must provide a copy of the subpoena to all other parties to the proceeding and all persons who may be interested in the subject matter of the subpoena.

If you have received a copy of the subpoena and are not the person subpoenaed, you do not have to do anything unless you want to object to another party or interested person's inspection or copying of the documents listed in the schedule to the subpoena.

You may have a right to inspect or copy the documents subpoenaed.

Objecting to the production or inspection or copying of subpoenaed documents

As the person subpoenaed to produce documents, you may object to producing the documents. As a person receiving a copy of a subpoena to produce documents, you may object to the documents subpoenaed being inspected or copied.

If you wish to object, you must complete a Notice of objection - Subpoena form. This notice needs to be filed with the Court before the date for production set out in the subpoena, together with a copy of the subpoena.

If you are a party to the proceedings, you can eLodge the completed notice of objection form via eLodgment. You can follow these instructions on how to use eLodgment or see the Federal Court website.

If you are not a party to the proceeding, you should submit the completed notice via email. If you are unable to email, you can file by either posting to the registry or attending in person. See the registry locations.

Once filed, the notice will be processed by the Court as soon as practicable. The Court will complete the details on the notice, including providing a Court date, and return it to you. You must then serve a copy of the notice of objection, together with a copy of the subpoena, on the issuing party, and all other parties in the case.

You must attend Court on the court date assigned to have your objection heard and determined.

What can I do if my medical records have been subpoenaed?

If your medical records have been subpoenaed, you may seek to view your records before deciding whether you want to object to them being inspected. In this case, you will need to notify the Court in writing before the date for production set out in the subpoena. If you object to your records being inspected, you should file your notice of objection within seven days after the date for production in the subpoena.

Right to inspect or copy documents

If there is no objection to the production of the subpoenaed documents, and no court order has been made to set aside the subpoena, after the date for production set out in the subpoena has passed, the parties to the proceedings can inspect those documents. Documents, other than criminal records, medical records, and police records, may also be copied.

If the documents subpoenaed are medical records, the person whose records have been subpoenaed may give notice to the Court that they wish to inspect their records before deciding whether to object to their inspection by other parties or interested persons. In this case, any other party or interested person, will not be allowed to inspect the documents until 7 days after the date for production has passed or, if an objection has been made, until the objection has been determined by the Court.

Getting help

If you have any legal questions about subpoenas, you should get legal advice. Court staff cannot give you legal advice but they can help you with questions about court forms and the court process. For more information, contact the Court.

Overview

After the Federal Circuit and Family Court of Australia (the Court) makes final orders in your proceeding, if a person does not comply with those orders, you can take further steps to ‘enforce the judgment’.

If a person has been ordered to pay you money, the money owed is a ‘judgment debt’.  

Recovering a judgment debt may involve:

• seeking financial information about the person who owes you money

• having the Sheriff seize and sell some types of property that the person owns to satisfy the debt to you, or

• directing that some or all of the person’s earnings or income from a bank or other financial institution be paid to you.

You will need to use a state or territory court process to recover the judgment debt.

If a person has been ordered to do, or not to do, an act or thing (distinct from an order to pay an amount), but they have not complied, you may also be able to take steps to enforce that order.

Enforcing a judgment debt

You will have the same remedies for enforcing a judgment debt as exist in the supreme court of the state or territory in which the judgment is made. You will have to use the enforcement procedures of the relevant supreme court.

While the terminology may differ between states and territories, the following methods of enforcing a judgment debt are broadly available:

Examination notice

This document is served on the person who owes you money, requiring them to answer questions about their financial circumstances and provide copies of documents to you.

Examination order

If the person who owes you money does not provide sufficient answers or documents as specified in the examination notice, you can apply to the Court for an examination order directing the person to attend court for examination under oath as to their financial capacity to satisfy the judgment debt.

Writ / warrant for seizure and sale of property

The writ authorises and directs the Sheriff’s Office to go to the address of the person who owes you money, seize property owned by that person and sell it at auction to satisfy the judgment debt. This requires a court order.

Redirection / attachment / garnishee of debts or earnings / instalment order

This is an order from a court, directed to a third party (for example, a bank or employer), to have a certain amount of money taken from the person who owes you money and given to you to satisfy the debt to you. This kind of order will usually be served on either a bank (usually requesting money from a business account) or an employer (requesting part of an employee’s wage).

The order bypasses the judgment debtor, but it only helps if you know whom to serve the order on. Also, if there is no money in the account, or less than a certain amount, no money will be deducted. If the judgment debtor is an individual receiving Centrelink, it may be difficult to recover any substantial amount through this method.

Each method has its own procedural requirements, which can differ, depending on the state or territory where the judgment is being enforced.

The time limit for enforcing a judgment debt varies between the states and territories. In some jurisdictions, it is 6 years; in others it is 12 years.

The procedures and forms for each state and territory can be found on the relevant court’s website.

• Supreme Court of the Australian Capital Territory

• Supreme Court of New South Wales

• Supreme Court of the Northern Territory

• Supreme Court of Queensland

• Supreme Court of South Australia

• Supreme Court of Tasmania

• Supreme Court of Victoria

• Supreme Court of Western Australia

It may also be possible to commence bankruptcy proceedings (against an individual debtor, for debt equal to or exceeding $10,000) or serve a creditor’s statutory demand for payment of debt (against a company) to enforce a judgment debt. You will need to apply to a court to take these steps.

In deciding which enforcement method to pursue, consider:

• how long it will take to pursue enforcement, including recovery of the debt

• the cost involved in the particular enforcement method, taking into account court fees and other costs (such as when the Sheriff must execute a writ)

• the difficulty of the process

• the suitability of the method (consider the judgment debtor’s financial position and means),

• whether the judgment debtor is an individual, a company, or some other legal entity.

It is recommended that you seek legal advice before trying to enforce a judgment debt.

Enforcing an order to do, or not to do, an act or thing

If a person has been ordered to do, or not to do, an act or thing, such as transfer property or deliver goods, and they do not comply with the order, you may be able to apply to the Court for certain orders that would compel the action through arrest of the person (committal) or seizing of the property (sequestration).

You can also sometimes get an order from the Court that another person, appointed by the Court, can do the act or thing that has not been done.

In some circumstances, you may be able to apply to the Court for the person who has not complied with the order to be dealt with for contempt, which may lead to the person’s arrest.

Committal, sequestration and contempt are complicated processes. It is recommended that you get legal advice before trying to file an application for any such order.

Failure to comply with a subpoena

If a person does not comply with a Subpoena - General federal law and migration to produce documents or things or to attend court to give evidence, and has no lawful excuse for not complying, the Court or a Registrar may issue a warrant for the person’s arrest.

Advice

Enforcement is a complex area of law. If you have any legal questions about enforcement, you should get legal advice.

What is an appeal?

If you think the judge in your case has made a legal mistake in deciding your case, you can appeal to the Federal Court of Australia, asking it to set aside the decision made. Your appeal is likely to be heard by a single judge unless a judge thinks the appeal should be heard by a Full Court (three Judges).

An appeal is not a re-hearing of the original dispute. Rather, it is an examination of whether the law was applied correctly in your case.

The judge hearing the appeal:

• does not consider any new evidence or information that was not presented in the original case (except in special circumstances)
• does not call witnesses to give evidence
• does read all the relevant documents filed by the parties for the original case
• does read the relevant parts of the transcript of the original case, if available, and
• does listen to legal argument from both parties to the appeal.

To succeed in your appeal, you must show that the judge who heard your original case, made a legal mistake and that the mistake was of such significance that the decision should be overturned. For example, the judge who heard the original case might have applied an incorrect principle of law.

See the Federal Court of Australia website for more information about appeals to the Federal Court.

Do I need a lawyer to appeal?

You are strongly encouraged to get legal advice before you begin an appeal. Court staff are not permitted by law to provide legal advice. Only a lawyer can give you independent, expert legal advice. Lawyers are trained to interpret the law and apply it to individual cases. Lawyers also know the law, and its practices and procedures.

A lawyer will:

• define whether you have a legal issue suitable for consideration on appeal
• provide practical options available to you, and
• explain the costs involved in appeal litigation.

Appeals can be costly. You will need to pay a filing fee when you file your notice of appeal and a separate ‘setting down’ fee. The current fees are set out in regulations. If you lose the appeal, you will probably be ordered to pay the other party’s legal costs as the Court normally awards costs to a successful party in general federal law proceedings. So, even if you plan to run the appeal yourself, it is important to get legal advice on whether you have valid grounds on which to appeal.

Will my appeal be successful?

An appeal will only be successful if the judge has not applied the law correctly. Therefore, to be successful, you must be able to convince the appeal court of how the law should have been interpreted. This will mean you have to develop an argument that may be quite technical and complex and will have to present the essence of it in your notice of appeal.

It is difficult to draft a notice of appeal, so it is strongly recommended that you get legal assistance to prepare your notice of appeal.

If you do not have a lawyer, there are organisations that may be able to give you free or low-cost legal advice or assistance.