By Hayley Hitch, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.
Have you ever wondered about the difference between a subpoena and a notice to produce? These can be confusing and sometimes cause delays in proceedings or result in significant additional legal costs.
Both a subpoena and a notice to produce are court forms used once proceedings have been commenced, to obtain documentation from a specific individual or entity. A subpoena can also be issued to require a witness to attend Court and give evidence at a hearing.
In simple terms, a subpoena is issued by the Court to request documents from someone who is not a party to the proceedings. On the other hand, a notice to produce is issued by a party to the proceedings to request documents from another party.
Subpoena
Most courts have rules about how to obtain a subpoena. Under the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) for instance, the Court will issue a subpoena if requested by a party. However, if that party is not represented by a solicitor, leave of the court is required (Rule 7.3).
A subpoena is used to order a specified individual/entity to:
- Attend court to give evidence; and/or
- Produce documents or other items.
A subpoena is required to be served personally on the recipient. However the person receiving the subpoena does not need to comply with it unless sufficient conduct money has been provided (Rule 33.6). Conduct money is an amount sufficient to sum of money provided as reasonable compensation of the addressee’s costs of attending Court to produce the documents (or to give evidence). Failing to provide conduct money is a common error with subpoenas and can cause significant delay in proceedings or prevent a party from obtaining the necessary documentation they require prior to a hearing. This is because the person who has received the subpoena can lawfully refuse to produce the documents to the Court if insufficient conduct money has been provided.
It is important to remember that conduct money is not the same as the reasonable expenses which might be incurred in complying with the subpoena. If you have received a subpoena you may be entitled to costs (including legal costs) of responding to a subpoena. However if conduct money has been provided, you may not refuse to produce the documents because the party who requested the subpoena be issued has not also agreed on an amount for your reasonable costs. This can be a tricky area where legal advice can ensure you recover as much as possible of your expenses.
If a subpoena has been served in accordance with the Rules, and the addressee fails to comply with the subpoena (without lawful excuse), the addressee may be found to be in contempt of court. It is therefore important to pay careful attention to subpoenas which have been served and ensure that they are dealt with properly and within the time frame set by the Court
The UCPR now covers issuing subpoenas using the online Court registry. However, parties are required to be represented by a solicitor in order to do this (Rule 3.14(2)).
Notice to Produce
A notice to produce is used by a party to proceedings to request documents or other items.
A reasonable period of time to respond to a notice to produce is 14 days after service of the notice.
Unlike a subpoena, a notice to produce does not require conduct money. However, a person producing documents under a notice to produce may request reimbursement of their reasonable costs incurred for complying with the notice under Rule 34.3.
Similarities of a subpoena and notice to produce
Both a subpoena and a notice to produce can only be issued once proceedings have commenced.
Both a subpoena and a notice to produce should be clear and specific as to the documents being requested. They should not be vague, unreasonable, or confusing. For example, requesting any document written by a party during a period of 15 years is almost certainly oppressive (requesting an excessive amount of documents) and liable to be set aside..
It is important that subpoenas (and also notices to produce) are not used as a ‘fishing expedition’ (that is, hunting for evidence which may exist to support a claim). There needs to be a ‘reasonable possibility’ the documents requested will materially assist the claim.
Both forms are required to be served on the recipient. A subpoena will need to be served personally, and proof provided to the Court if there is non-compliance. However a notice to produce will normally be sent to the lawyer for the recipient or an address for service which the party is required under the Rules to provide. It is important to make sure that the forms are prepared and served in accordance with the Rules so that the addressee is required to comply.
There are many benefits of obtaining legal representation when dealing with proceedings that may require the issuing of subpoenas or notices to produce. To ensure you obtain the documents you need to be successful in your case, contact our office to discuss further.
If you have any queries regarding subpoenas and notices to produce, or require assistance to obtain documents in your proceedings, please do not hesitate to contact our office.
If you would like more information or advice in relation to insolvency, restructuring or debt recovery law, contact Hayley Hitch at hayleyh@matthewsfolbigg.com.au or a Principal of the Matthews Folbigg Insolvency, Restructuring & Debt Recovery Group:
Jeffrey Brown on (02) 9806 7446 or jeffreyb@matthewsfolbigg.com.au
Stephen Mullette on (02) 9806 7459 or stephenm@matthewsfolbigg.com.au
