A subpoena is a legal document issued by the Court at the request of a party to a Family Court proceeding. A subpoena compels a person to produce documents or give evidence at a hearing or trial.
The subpoena, which has the effect of a Court order, requires the person to whom it is addressed to produce the documents which it describes. It assumes that the person named in the subpoena document has the ability or capacity to produce the documents described in the subpoena. The person served is bound to produce any document which is in his possession, custody or control. It binds a person who can produce the documents to do so.
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
The subpoena for production is crucial to the ability of a party to investigate the facts and assemble evidence to prove a case.
The party in the proceedings issuing the subpoena, that is filing the subpoena in the Court, bears the onus of establishing to the satisfaction of the Court the legitimate forensic purpose relied upon in seeking production of documents from the third party named in the subpoena document.
The documents sought by way of subpoena may not ultimately turn out to be relevant. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the person or entity named in the subpoena is bound to produce the documents named in the subpoena. No more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case.
The converse of this, namely the absence of any apparent relevance of the documents sought to be subpoenaed to the issues in the case, may be a sufficient ground to set aside a subpoena or a part of a subpoena.
The Court’ has power to set aside a subpoena where necessary to prevent an abuse of process. A subpoena will constitute an abuse of process if it is not issued for a legitimate forensic purpose. That is, it has not been issued bona fide to obtain ‘apparently relevant’ evidence.
Examples in which a court would exercise its jurisdiction to set aside a subpoena include:
The court will intervene to exercise its jurisdiction to set aside a subpoena if it be issued for an impermissible, or illegitimate, purpose, or if to require compliance with it would be oppressive. A Court must decide between the right of a plaintiff to obtain documents in the hands of a non-party, in the interests of the proper administration of justice, and the private rights of that non-party. A non-party is always entitled to apply to set aside a subpoena, for “oppression”
If you are needing to issue a subpoena or have been served with a subpoenas in Family Court proceedings, please contact the Brisbane Family lawyers team at James Noble Law today for a FREE, no-obligation 20-minute consultation. To schedule an appointment with one of our Qualified and experienced Family lawyers Brisbane.
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