NTP 2-2012
GUIDE TO SUBPOENAS
There are three types of subpoenas that can be issued in the County Court.
· Form 42A Subpoena to produce documents and / or give evidence
Rule 42
· Form 42AA Subpoena for Production to the Registrar
Rule 42A
· Form 1D Criminal subpoena
County Court (Chapter III Criminal Subpoenas Amendment) Rules 2012
GENERAL INFORMATION
A subpoena shall not be addressed to more than one person.
An addressee must be indentified by name or position description.
A subpoena must identify the document to be produced (in the Schedule) and specify the date, time and place of production and the last date for service.
A subpoena shall not be issued if it is requiring the production of a document or thing in custody of the Court or another Court.
From 1st September 2011, the Rule 42 and 42A relating to subpoenaed material will be amended. Essentially, the notes at the rear of the Subpoena will alter allowing photocopies or PDF format on a CD of documents to be filed. Also, a new form being a “Notice to addressee and declaration’ must be attached to the front of each subpoena at the time of issue and for service. These forms enable the addressee to consent to the destruction of the copied documents at the conclusion of the trial.
For civil subpoenas
A form 42A subpoena must have attached a Form 42B (Notice to addressee and declaration)
A form 42AA subpoena must have attached a Form 42AB (Notice to addressee and declaration)
(See County Court (Chapter 1 Amendment No.3) Rules 2011 )
For criminal subpoenas
A Form 1D subpoena must have attached a Form 1E (Notice to addressee and declaration)
(From 17th September 2012 this new form must be used when issuing subpoenas in a criminal
matter. See County Court (Chapter III Criminal Subpoenas Amendment) Rules 2012)
DOCUMENTS IN THE CUSTODY OF THE COURT Refer to Rule 42.13
A court file cannot be subpoenaed but can be requested (in writing) by the solicitor to the Registrar as per Rule 42.13. The Registrar will then request the other court to send the document or thing to the Registrar. Once the documents have been received, they are not to be viewed without order of a Judge before the hearing.
CONFISCATION ACT MATTERS
Under S133 of the Confiscation Act 1997, “ Proceedings on an application under this Act at are civil in nature except as otherwise provided by this Act”. Therefore, 42AA subpoenas can be issued in Confiscation Act proceedings.
ORDER 42 - FORM 42A SUBPOENAS
A form 42A subpoena may require an addressee to –
£ to attend to give evidence;
£ to produce documents; or
£ to attend to give evidence and to produce documents
Only one box can be ticked.
Can only be used in civil proceedings.
The documents being subpoenaed cannot be viewed without an order of a Judge.
The date on the subpoena is the date of the trial or any other date ordered by the Court.
The last day for service of the subpoena is 5 business days before the date to produce documents or to attend to give evidence
Form 42B ‘Notice to addressee and declaration’ must accompany a Form 42A subpoena when it is issued and served. (except when the subpoena is to give evidence)
When issuing subpoenas, at least three copies of each subpoena must be filed. One copy is kept by the Court, one copy is served on the addressee and the third copy retained by the issuing party.
AFFIDAVIT OF SERVICE Refer to Rule 42.05
A 42A Subpoena must be served personally on the addressee. An affidavit of service should then be filed by the party who served the subpoena, with the Court. This affidavit should also make reference to Form 42B (i.e. Notice to addressee & declaration) being served
ORDER 42A - FORM 42AA SUBPOENAS
A Form 42AA subpoena is a “Subpoena for Production to the Registrar”
Applies where a party who has a solicitor in the proceedings seeks to require a person not a party to produce a document for evidence before either an interlocutory hearing or the trial date
Can only be used in civil proceedings.
Documents produced under 42AA subpoena can be inspected and photocopied in accordance with the Rules.
Before issuing subpoenas, both the production and last day of service dates must be included on the subpoena. These dates are to be entered by the solicitor issuing the subpoenas.
Compliance date
Must be at least 21 days from the date of issue (to allow sufficient time for service)
Last day for service
Five working days before the production date (Rule 42.03(8) and Rule 3.01(4))
Eg . If today is 1st August and subpoenas are issued this day, then the production (or compliance) date is 22nd August. The last day for service is therefore 5 working days before
22nd August being 15th August.
Form 42AB ‘Notice to addressee and declaration’ must accompany a Form 42AA subpoena when it is issued and served.
When issuing subpoenas, at least three copies of each subpoena must be filed. One copy is kept by the Court, one copy is served on the addressee and the third copy retained by the issuing party.
AFFIDAVIT OF SERVICE (ON ADDRESSEE) Refer to Rule 42A.04
A 42AA Subpoena must be served personally on the addressee. An affidavit of service should then be filed by the party who served the subpoena, with the Court. This affidavit should also make reference to Form 42AB (i.e. Notice to addressee & declaration) being served
AFFIDAVIT OF SERVICE PURSUANT TO RULE 42A.04 Refer to Rule 42A.04(2)
Once a subpoena has been served on an addressee, the issuing party must serve a copy of that subpoena on all other active parties. Service of the copies of these subpoenas (as opposed to service of a Subpoena on an addressee which must be personal service) can be personal, by mail or faxed. An ‘Affidavit of service pursuant to Rule 42A.04’ must then be sent to the Court as soon as practicable.
Appointments for inspection and photocopying of subpoenaed documents cannot be made until an Affidavit of Service pursuant to Rule 42A.04 has been filed
OBJECTIONS Refer to Order 42A.08 and 42A.09
An objection to subpoenaed material may be filed by a party or ‘other interested party’ to the proceeding. This objection must be in writing and specify which subpoena is being objected to (i.e. which addressee) and also the grounds of the objection
i.e. RELEVANCE, PRIVILEGE or NON-COMPLIANCE.
Objections on the grounds of relevance or privilege
Once processed, these objections will be listed on the next available date before the appropriate Judge. All parties will be advised in writing by the Court of that date.
Objections on the grounds of non- compliance
An objection on the grounds of non compliance will not be listed before the court.
If an objection is filed on the grounds of non compliance, this objection should be withdrawn as soon as possible once the documents are received by the court and the objecting party has had an opportunity to inspect those documents. If there are further grounds for objection, a new objection should be filed with the grounds.
Medical files
If a subpoena has been issued by a party other than the plaintiff and relates to ..‘production of any hospital or medical file or record concerning the plaintiff or his or her condition’ then the plaintiff has 14 days exclusively to view and copy the file and, if necessary, make an objection within that period to the Registrar. If no objections are filed, then any other party can view and photocopy the documents.
(Note – previously 7 days to view and copy medical files which was changed to 14 days in County Court (Miscellaneous Amendments) Rules 2012 (Part 2 – 5 ))
Non-medical files
For subpoenaed documents which are not medical, any parties must file their objection to the subpoena before the date of production. If no objections are made, all parties are able to view and photocopy the documents once the production / compliance date has past.
FORM 1D – CRIMINAL SUBPOENAS
A Form 1D subpoena may require an addressee to –
£ to attend to give evidence;
£ to produce documents; or
£ to attend to give evidence and to produce documents
Only one box can be ticked.
Can only be used in criminal proceedings.
The documents being subpoenaed cannot be viewed without an order of a Judge.
The date on the subpoena is the date of the trial or any other date ordered by the Court.
The last day for service of the subpoena is 5 business days before the date to produce documents or to attend to give evidence
Form 1E ‘Notice to addressee and declaration’ must accompany a Form 1D subpoena when it is issued and served. (except when the subpoena is to give evidence)
When issuing subpoenas, at least three copies of each subpoena must be filed. One copy is kept by the Court, one copy is served on the addressee and the third copy retained by the issuing party.
COURT CONNECT
Court connect is a link through the County Court website. www.countycourt.vic.gov.au and allows parties to view when subpoenaed documents have been received by the Court.
Court Connect is a ‘mirror image’ of the court computer system. If the subpoenaed documents are not viewable on Court Connect, they have yet to be received by the Court.
Go to www.countycourt.vic.gov.au
Click on the ‘Court Connect’ icon (right hand side of the screen)
Click on display case information
Enter Case ID
Submit
Scroll down to Subpoenas received – Includes the date received, the location, subpoenaed party, description (i.e. whether documents are medical MDRD or other documents DOCT) and whether they are 42A or 42AA subpoenas.
APPLICATIONS TO REMOVE SUBPOENAED DOCUMENTS
Applications by solicitors to remove subpoenaed material Refer to Rule 42A.11
Documents may only be removed from the custody of the Registrar after an application is made in writing to the Registrar and a written undertaking signed by the solicitor for a party is given to the Registrar. In accordance with the Rules, a party to the proceeding or an addressee of a subpoena may apply to remove subpoenaed material from the Registry to inspect and/or photocopy the documents.
The grounds for such an application are as follows –
That the subpoenaed material is on CD and is unable to be viewed in the registry; or
That the documents received are too voluminous to copy in the registry;
The determination of these applications are at the discretion of the Court and once granted, must be returned by the date in the order.
Applications by an addressee to remove subpoenaed material Refer to Rule 42A.12
This rule refers to addressees who require the documents filed under a subpoena to be temporarily returned to them. The common applicants include medical centres, doctors and hospitals who require their files for ongoing medical treatment or to refer to their file under subpoena to prepare medical reports for Court. These applications are made in writing by the addressee under the subpoena.
BOOKING APPOINTMENTS TO INSPECT / COPY DOCUMENTS Refer to Rule 42A.10
Before calling for an appointment, refer to Court Connect to determine that the subpoenas have been received and that there are no objections filed.
Information required when calling for a booking for inspection or copying:
§ Court reference number
§ Names of the parties
§ Which party your firm represents
§ Which firm issued the subpoenas
§ If you are the issuing party, that an Affidavit of Service (pursuant to Rule 42A04)
has been filed
§ The date for production (compliance date) of the subpoenas
§ If the documents are filed under Order 42 (i.e. 42A subpoenas) when the court order was made allowing your firm access to view / copy the documents
INSPECTION / PHOTOCOPY TIMES
The County Court Registry has two inspection areas for inspection of subpoenaed documents. There are four photocopiers available to copy documents upon appointment.
The appointment times are as follows and are in 90 minute blocks –
9:30 am, 11:00 am, 12:30 pm, 2:00 pm and 3:30 pm
The Court will advise of the next available appointment time.
PHOTOCOPYING FEES
Effective from 1 July 2009, the photocopy fees of $1.50 is charged for each page copied on an inspection. Cash and solicitors trust account cheques are accepted forms of payment and EFTPOS facilities are also available at the Court. Copy cards are available at the counter.
COUNTY COURT (MELBOURNE) CONTACT FOR SUBPOENA INSPECTION
The contact persons for the making of an appointment to inspect at the County Court at Melbourne are:-
Phone : For booking appointments and general inquiries8636 6525
: Subpoena manager
8636 8623
Fax : 8636 6051
QUICK REFERENCE GUIDE TO SUBPOENAS
CIVIL PROCEEDINGS
FORM / ORDER / RULE / DETAILS / ADDITIONAL INFORMATIONForm 42A / Order 42 / 42A subpoena
Includes :
§ Subpoena to give evidence;
§ Subpoena to produce documents; or
§ Subpoena to give evidence and
produce documents.
Place a tick in the appropriate box. Do not delete the other options on the pro-forma / Cannot be inspected without a court order
Apply to civil subpoenas
The production date is the trial date in civil matters and is a hearing date for criminal matters
Form 42B / Order 42
(Chapter 1 (Amendment 3) Rules 2011) / Notice to addressee and declaration
§ Allows copies of documents to be filed as per schedule in the subpoena instead of originals.
§ Enables those copies to be destroyed at the finalisation of the trial, with the consent of the addressee. / To accompany each 42A ‘Subpoena’ at time of issue and for service on the addressee. It is not required when the subpoena requests addressee to give evidence.
Form 42AA / Order 42A / 42AA subpoena
Includes :
§ Subpoena for Production to the Registrar / Apply to civil subpoenas
Can be inspected and copied as per the Rules
Cannot be issued against a party to the proceeding
(Refer to 42A.01)
Form 42AB / Order 42
(Chapter 1 (Amendment 3) Rules 2011) / Notice to addressee and declaration
§ Allows copies of documents to be filed as per schedule in the subpoena instead of originals.
§ Enables those copies to be destroyed at the finalisation of the trial, with the consent of the addressee / To accompany each 42AA ‘Subpoena for production to the Registrar’ at time of issue and for service on the addressee
CRIMINAL PROCEEDINGS