Subpoenas for production – when to object and how to respond to objections

1. Subpoenas for production – when to object and how to respond to objections Legal Aid NSW Care and Protection Conference 23 August 2019 Anthea Tomlin, Crown Solicitor’s Office

2. What is a subpoena? • “under penalty” • order of a court, to be obeyed unless the court makes an order to the contrary • to produce documents and/or things • to attend to give evidence • to produce documents and give evidence

3. Relevant legislation • Children’s Court proceedings: Chapter 6, Part 2, Division 3 of the Children and Young Persons (Care and Protection) Act 1998 and Part 6, Division 6 of the Children’s Court Rule 2000 • District Court appeals: Chapter 6, Part 2, Division 3 of the Children and Young Persons (Care and Protection) Act 1998 and Part 33 Uniform Civil Procedure Rules 2005

4. Relevant legislation • Most civil matters in NSW and, largely, in Supreme Court criminal proceedings: Part 33 of the Uniform Civil Procedure Rules 2005 • Family Law Act 1975 proceedings: Part 15.3 of the Family Court Rules 2004 when in the Family Court and Part 15A of the Federal Circiut Court Rules 2001 when in the Federal Circuit Court

5. Relevant legislation • ADVO and criminal proceedings in the NSW Local Court and District Court: Chapter 4 Part 3 of the Criminal Procedure Act 1986 and relevant Court rules (Part 6 of the Local Court Rules 2009 and Part 53 Division 2 of the District Court Rules 1973)

6. What does it require? • recipient to produce documents or things in: • possession/custody • other people’s documents • control • right or power to command delivery • no obligation to create documents • no obligation to produce what is not caught

7. Whom can a subpoena be issued to? • Generally speaking, a subpoena must be addressed to a person. May be addressed to the person by name or by description of office or position. • Often addressed to the head of an agency (e.g. Secretary of a Department). • May be addressed to the “Proper Officer” of an agency. (Courts have accepted this as an appropriate description of an office or position.) • Agencies have issued guidelines that are reproduced in Ritchie’s Uniform Civil Procedure NSW: • See [33.3.35] for authorities, boards and departments; [33.3.40] for Department of Justice; [33.3.45] for NSW Police Force • A subpoena that is addressed to an agency, and not a person, may not be a valid subpoena.

8. Formal requirements • vary between jurisdictions • approved form • sealed or signed by the court • addressed to a person by name or office • time and place for production • seeks documents, things or objects • not “information about” or “details of”

9. Proper service • personally served – Children’s Court, District Court • special arrangements can be relied on • Ditfort v Temby (1990) 97 ALR 409 • served by the last date for service • orders for short service

10. Conduct money • money or equivalent to meet reasonable expenses of attending and returning • is it required? • when is it to be paid? • is not the same as expense and loss

11. Responding to a subpoena • carefully and promptly read the schedule • what does it require? • “All documents about X including but not limited to:” vs “The following documents about X:” • “document” unlikely to be limited to paper • is it in the addressee’s possession, custody or control?

12. Responding to a subpoena • only required to produce what is caught • implications of “voluntary” production • defamation • breach of statutory confidentiality provisions (s. 254 Children and Young Persons (Care and Protection) Act 1998 • are there potential objections to: • subpoena itself? • production of the documents? • access to the documents?

13. Responding to a subpoena • timeframes vary but are often short • compliance • to apply to set aside and/or object to production or access

14. Objections to subpoenas • first of three stages (Waind v Hill [1978] 1 NSWLR 372) • arise prior to search and/or consideration of documents • legitimate forensic purpose or fishing expedition • An Adoptive Father v Minister for Family and Community Services [2019] NSWSC 878 – considered a number of statements of the test - “All the formulations of the test embody the idea that, ‘what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings’: Rinehart v Rinehart [2018] NSWSC 1102”

15. Objections to subpoenas • oppression • onerousness • calling for a judgement • eg “all documents relevant to the father’s case” • collateral purpose

16. Objections to production • what information is usually required to be withheld from production? • legal professional (client legal) privilege • confidential communication between a lawyer and a client • dominant purpose of legal advice • dominant purpose of proceedings and anticipated proceedings

17. Objections to production • public interest immunity (s. 130 Evidence Act 1995) • protection of the proper functioning of government • ongoing investigations • confidential methods of investigation • existence or identity of an informer, including information that would tend to identify • high level governmental communications eg Cabinet documents

18. Objections to production • public interest immunity • not a privilege • no waiver • balancing exercise

19. Objections to production • statutory privileges • s. 29 Children and Young Persons (Care and Protection) Act 1998 • documents not required to be produced in the Supreme Court: s. 109FChildren and Young Persons (Care and Protection) Act 1998 and r. 1.9 of the Uniform Civil Procedure Rules

20. s. 29 Care and Protection Act • a person cannot be compelled in any proceedings to produce a report or a copy of or extract from it or to disclose or give evidence of any of its contents (s. 29(1)(e)) • a report, or evidence of its contents, is not admissible in any proceedings other than those specified in the provision (s. 29(1)(d) • reporter’s identity may only be disclosed by consent or in certain proceedings if the Court gives leave

21. Objections to production r. 1.9 UCPR • professional confidential relationship privilege • sexual assault communications privilege where same acts in issue as criminal proceedings • self-incrimination • matters of state / public interest immunity • settlement negotiations • information the disclosure / production / admission of use of which would be contrary to any Act (except Evidence Acts)

22. Objections to access • standard access orders • access is discretionary • privacy • relevance • the implied undertaking

23. Complying with a subpoena • Where are the documents stored? • paper and electronic records • backed up records and emails, archives • production without an attendance • copy of the subpoena • retain a copy of everything produced in the form in which it was produced

24. Negotiation points • speak to the person objecting • more time to comply • narrowing the subpoena • payment of expenses • obtain or send written confirmation of any agreement