District Court of Western Australia s2

District Court of Western Australia Circular to Practitioners CIV 2008/3 Date of issue: 26 November 2008 Revised: 7 August 2009, 11 November 2009, 23 May 2011

SUBPOENAS

Summary: The District Court has put in place procedures to ensure that applications for the issue of subpoenas are dealt with efficiently and cost effectively.

1. Subpoenas returnable at trial

Where a party seeks to issue a subpoena returnable at trial:

(a) they should file three copies of the proposed subpoena in the form of RSC Form 22;

(b) the issuing officer of the Court will review the file to determine whether a subpoena may be issued as set out in RSC Order 36B rule 2(2); and

(c) if the subpoena can be issued, the issuing officer will affix the Court seal and return two sealed copies to the party.

Praecipes for the issue of a subpoena are now no longer required.

2. Subpoenas returnable prior to trial

If a party seeks to issue a subpoena returnable prior to trial, or seeks an order varying the ordinary application of RSC Order 36B, the party will need to apply to the Court on chamber summons.

Three copies of each subpoena should be annexed to the chamber summons, with the desired return date completed. Unless there are compelling reasons to the contrary (eg a pending trial), the return date should be not less than 35 days from the date of the application. This will allow 7 days for the application to be determined, and then a further 28 days for the subpoena to be served and complied with.

In drafting the subpoena, practitioners are requested:  To identify any party by name rather than by party type (eg refer to Mary Jane Smith not ‘the plaintiff’).  Where medical records are being sought, to include the patient’s date of birth. 2

 Where police crash records are being sought, to include the date of the accident, the registration numbers of both vehicles and any known police reference numbers.

Where the documents are being sought from a corporate entity, it is sufficient if the subpoena is addressed to the corporate entity, for example, “Smith Pharmaceuticals Ltd”. It is not necessary to refer to the “Proper Officer” of the corporation. If the corporate entity has published specific guidance as to how it would like subpoenas to be managed, this may also be used, for example, “Smith Pharmaceuticals Limited (Attention General Counsel)”.

Where the documents are being sought from a government department or agency, the subpoena may be addressed in accordance with any published guidance from the department or agency as to addresses for service of legal documents. For example, documents sought from Medicare Australia may be addressed to “Medicare Australia (Attention Privacy and Information Release Section)”.1

The application may be made ex parte, unless there are particular issues which the solicitors for the applicant are aware of that make it appropriate to serve the summons on other parties. The usual orders will give the other parties limited liberty to apply.

The application need not be supported by an affidavit. If one is required, the Registrar will make orders to that effect at the first return date.

The Court will endeavour to deal with the application on the papers, and will only convene a hearing if that is necessary.

Practitioners are advised that the Court will usually issue orders in the form of Annexure A.

The Court’s usual practice is to fix the amount of the fees payable to the witness pursuant to RSC O36B r 11 at $80, without prejudice to the right of the witness to apply to the Court for a higher amount to be fixed. If, in a particular case, a party considers that the Court should not adopt this approach, the party should set out the reasons for this position being taken in short written submissions accompanying the application.

Practitioners are also advised to review Circular to Practitioners GEN 2008/2, Obtaining Documents from the WA Police Service under Court Order, when considering issuing a subpoena to produce documents from the WA Police Service.

3. Inspection and copying of documents or things subpoenaed

Where a practitioner or their clerk wishes to inspect or copy documents or things that have been subpoenaed, the officers of the Registry will require the practitioner or clerk to sign an undertaking in the form attached in Annexure B.

1 “Subpoenas and notices of non-party disclosure”, available online at http://www.medicareaustralia.gov.au/about/information/files/2312-1-subpoenas-and-notices- of-non-party-disclosure.pdf, viewed 23 May 2011. 3

4. History

This Circular supersedes Circulars CIV 2005/1, CIV 2005/6 and CIV 2006/3.

MICHAEL GETHING Principal Registrar

Annexure A – Usual subpoena orders

UPON THE APPLICATION of the [party type] (“Applicant”) by summons dated [dated] (“Summons”) and UPON HEARING [name] for the Applicant IT IS ORDERED that:

1. the documents required to be produced pursuant the subpoena addressed to [name of witness] and annexed to the Summons be produced to the District Court Registry, Ground Floor, District Court Building, 500 Hay Street Perth on [date] at 10.00am;

2. the last date for service of the subpoena[s] in paragraph 1 is not less than 21 days prior to the return date;

3. the subpoenaed documents be returned to the witness within 28 days of production;

4. the parties be at liberty to inspect the subpoenaed documents and, with the approval of a Registrar, copy the documents;

5. the Applicant pay the reasonable costs of the witness of production of the documents fixed at $80 to be tendered with the subpoena, without prejudice to the right of the witness to apply to the Court for a higher amount to be fixed and to any agreement to the contrary between the applicant and the witness;

6. the Applicant do serve the witness with a copy of this order at the same time as service of the subpoena;

7. within 7 days of the date of this order, the Applicant do serve each other party with a copy of this order and a copy of any subpoena referred to in paragraph 1;

8. the costs of the application, including any costs payable pursuant to paragraph 5, be costs in the cause;

9. each party other than the Applicant have liberty to apply in relation to these orders, that liberty to be exercised within 7 days of service of this order.

BY THE COURT

` REGISTRAR 5

Annexure B

UNDERTAKING IN RELATION TO INSPECTION AND COPYING OF DOCUMENTS OR THINGS SUBPOENAED

Proceedings: CIV ….... / …….

Witness name: ……………………………..

Date of subpoena: ……………………………… (“Subpoena”)

Name of person signing undertaking:………………………………………………

Firm name: ...... (“my Firm”)

Contact Details (Phone): ...... (For confirmation of approval to copy etc)

Party acting for :……………………………………………………………………..

1. 2I certify that a copy of the order was served by my Firm on each other party to the action.

2. I undertake that, neither I nor any representative of my Firm, will divulge, communicate or refer to any person any information obtained from inspection of any document or thing produced to the Court pursuant to the Subpoena or a copy of any document or thing so produced to and inspected by me: (a) otherwise than for the purpose of the Proceedings; or (b) except with the leave of the Court.

3. I undertake that neither I nor any representative of my firm will recopy any of the documents produced by the Court to me except for the purposes of the Proceedings.

4. I undertake that neither I nor any representative of my firm will divulge, communicate or refer to any person, any copies I have made of the documents produced otherwise than for the purpose of the Proceedings

SIGNED: ......

DATE: ......

Office use only APPROVAL TO COPY DOCUMENTS: YES / NO

Registrar: …………………………….. Date: …………………………..

2 If the party inspecting the documents was not the party which applied for the subpoena, this paragraph is not applicable and a line should be drawn through it.