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Clubs are frequently served with subpoenas by courts and tribunals requiring the production of documents in proceedings in which the club is not a party. This article provides an overview of the steps which a club should take when served with a subpoena.

Types of Subpoenas

There are usually three types of subpoenas which are issued by courts and tribunals. These include:

  • A subpoena to produce documents and other material;
  • A subpoena to give evidence; and,
  • A subpoena to give evidence and to produce documents and other material

This article focuses on the procedures involved with subpoenas to produce as these are the most common form of subpoenas served upon clubs. This article also looks at the practice which applies in relation to subpoenas to produce issued from the Supreme Court of New South Wales in light of recent changes to the procedure for subpoenas issued from that court.

There are differing procedures which apply in relation to subpoenas issued by other courts and tribunals. As such, it’s recommended that the explanatory notes which form part of those subpoenas (and these are usually comprehensive) be read carefully to ensure that the club responds appropriately to the subpoena. If in any doubt, contact the court or tribunal in question, or seek legal advice.

Proper Officer

So, who should deal with a subpoena on behalf of a club? Failure to comply with a subpoena to produce constitutes a contempt of court and may be dealt with by substantial penalties, including imprisonment. It’s therefore important to ensure that a club served with a subpoena promptly appoints the appropriate person to deal with the subpoena.

Subpoenas issued to corporations (including registered clubs) are commonly addressed to the ‘Proper Officer.’ If the subpoena is addressed simply to a corporation by name, the court rules mandate that the corporation comply with the subpoena by its “appropriate or proper officer.” Although that term isn’t defined, it’s recommended that this be a person holding a senior position within the club and possessing sufficient knowledge of the club’s operations and affairs so as to ensure that appropriate investigations are conducted of the club’s records in order to comply with the subpoena. In most cases it will probably be the club’s secretary who will be the appropriate or proper officer.

Should a club’s response to a subpoena be called into question, this will be the person who may be required to be examined before the court as to the adequacy of the club’s compliance with the subpoena.

When to Produce

A subpoena will specify the date and time by which documents are required to be produced to the court. This is known as the “return date” and can be as little as five days from the date that the subpoena is served on the club. If a club is unable to comply with the subpoena by the return date, contact should be made with the lawyers for the party who issued the subpoena to arrange an extension of time. Otherwise, it will be necessary for someone to appear at court on behalf of the club on the return date and request the court to extend the time for compliance with the subpoena.

What to Produce

A subpoena should identify the documents or things required to be produced with precision. If the items are described in a manner which is too broad or ambiguous, the court can set aside the subpoena. If, however, a club doesn’t have any documents to produce in answer to the subpoena, a letter stating this should be sent to the Registrar of the Court which issued the subpoena, together with a copy of the subpoena. A copy of that letter should also be sent to the issuing party’s lawyers.

It’s important to note that any documents produced in answer to a subpoena must be sent to the court and not to the issuing party or their lawyers. It’s possible that other parties in the proceedings may object to access to those documents being granted to the issuing party, or to any other parties in the proceedings. If that’s the case, the court will decide whether the party who issued the subpoena or any other parties in the proceedings can have access to those documents.

It’s acceptable to produce copies of the documents required, rather than originals, unless the subpoena specifically requires original documents to be produced. The issuing party can also specify in the subpoena whether electronic copies of the documents can be produced by the addressee, instead of hard copies. Electronic copies can be provided on a DVD, CD, or a USB device.

When a subpoena is served, the recipient is asked to complete a declaration stating whether the documents being produced are copies and, if so, acknowledging that they may be destroyed by the court when they are no longer required. Documents produced on a DVD, CD, or a USB device that have been identified as copies will not be returned to the producing party and will be destroyed or deleted by the court unless it’s been specifically requested that they be returned.

Challenging a Subpoena

A club served with a subpoena has the right to apply to the court to set aside the subpoena on a number of grounds. A common ground is that the subpoena is oppressive in that it imposes an unduly onerous obligation upon the club to collect and produce the documents sought. A court can also set aside a subpoena if it appears to be in the nature of “fishing.” This can occur when it’s apparent that the purpose of the subpoena isn’t to obtain evidence to support the issuing party’s case but rather to ascertain whether they have a case at all.

If a club wishes to challenge a subpoena, it’s recommended that the issuing party’s lawyers be firstly approached with a view to negotiating a withdrawal of the subpoena, or narrowing the scope of the items required to be produced.

Privileged Documents

It sometimes occurs that a subpoena requires a club to produce documents which may include confidential written communications between the club and its own lawyers. Such communications are generally protected by legal professional privilege and extreme caution should be exercised to ensure that this privilege isn’t waived. Clubs should seek legal advice if served with a subpoena which requires the production of any communications with the club’s own lawyers.

Expenses

Finally, a court can order the issuing party to pay the reasonable costs of a club in complying with a subpoena, including the cost of obtaining legal advice. Again, agreement should initially be sought with the lawyers for the issuing party in relation to the amount of costs to be paid. If agreement cannot be reached, the club can apply to the court for an order for costs on the return date of the subpoena.

For more information contact Chris Sydes on c.sydes@pigott.com.au or Daniel Fleming on d.fleming@pigott.com.au.

This article is intended to provide general information in summary form on a legal topic, current at the time of publication.  The contents do not constitute legal advice and should not be relied on as such. Formal legal advice should be sought in specific circumstances.