I've Been Served A Subpoenasubpoena!

Imagine the following scenario - you are a HR Manager and you have been served with a subpoena to appear in Court to produce documents and to give evidence in relation to a former employee. Now what? Must you abide by the subpoena? Do you really have to go to Court? The answer is yes, unless there are suffi-cient grounds to support otherwise, which will be dis-cussed below.

Introduction

A subpoena is a summons issued by the Court based on the request of a party whereby the person named in the subpoena would be required to produce rele-vant documents and/or to give evidence in Court. The purpose of a subpoena is clearly explained in the case of Lucas Industries Limited v Hewitt & Ors (1978) 18 ALR 555, FC at 570 as follows:

"The purpose of the process of the 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 togeth-er 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 evi-dence."

Types of Subpoena

With the recent amendments to the Rules of Court 2012, the names of the Writ of Subpoenas are known as a Subpoena to Testify, a Subpoena to Pro-duce Document and a Subpoena to Testify and Pro-duce Document and this is seen under Order 38 Rule 14 of the Rules of Court 2012.

A Subpoena to Testify may contain the names of two or more persons, however a Subpoena to Produce Document, can only contain the name of one person.

Two persons can be called to give evidence under one Subpoena but two persons cannot be called to produce documents under one Subpoena for other-wise, each would leave it to the other to comply and in the end the documents might not be produced. Under a Subpoena to Produce Documents, the per-son may not even have to attend Court but is per-mitted merely to cause the documents to be pro-duced in Court.

Service of Subpoena

Each and every Writ of Subpoena must be served personally on the recipient within 12 weeks of it be-ing issued. Once a subpoena is properly served, the subpoena has full effect until the conclusion of the trial, at which, the witness' attendance is required unless the witness is released sooner.

Do you have to accept a subpoena?

The answer is certainly yes. If a subpoena is properly addressed to you and...