Federal Court of Australia

Issue and service of subpoenas
(Q2/01, 31 May 2001)
NB: This Notice to Practitioners is superseded by Subpoenas dated 4 March 2004 and Subpoenas dated 23 February 2005)

The attention of practitioners is drawn to the provisions of Order 27 of the Federal Court Rules in respect of the issue and service of subpoenas.

Pursuant to subrule 6(1) a subpoena shall not issue without the leave of the Court or a Judge given generally or in relation to particular subpoenas. An application for leave may be made without notice to, and decided by, the Court or a Judge sitting in Chambers in the absence of the person named in the subpoena and the parties to the proceeding.

The power to grant leave to issue subpoenas now has been delegated to registrars pursuant to section 35A of the Federal Court Act as has the power under subrule 8(4A) to order that a subpoena may be served later than 5 days before a specified date.

A party who presents to the registry for issue a subpoena in the prescribed form must also provide a request in writing setting out the following information:-

(a) Details of the connection of the person or documents sought to be subpoenaed to the proceedings before the Court;

(b) an explanation of why a subpoena addressed to a non-party is the preferred and appropriate course as opposed to non-party discovery pursuant to Order 15A.

Subrule 8(4A) provides that if a subpoena requires the attendance of a person or the production of documents on a specified date, the subpoena must be served not later than 5 days before that date unless the Court otherwise orders. Practitioners are reminded of the provisions of Order 3 rule 2, which relates to the reckoning of a period of time. Subrule 2(2) provides that where time is reckoned by reference to a given day, the given day shall not be counted. Subrule 2(3) provides that where the period in question is a period of 5 days or less and includes a day on which the registry is closed, that day shall be excluded.

If a subpoena is presented to the registry for issue with a return date that does not allow sufficient time for service as prescribed by the rules it will not be issued unless an adequate explanation is provided in writing for the delay in seeking the issue of the subpoena

District Registrar