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Recent amendments to the Uniform Civil Procedure Rules 1999 (Qld) regarding Subpoenas

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The Uniform Civil Procedure (Subpoenas) Amendment Rule 2018 brings the Uniform Civil Procedure Rules 1999 (Qld) into alignment with Part 24 of the Federal Court Rules 2011 (Cth) in relation to subpoenas.

The UCPR is now more responsive to changing technologies, as it accommodates electronic methods in the issuing of subpoenas and production of documents and seeks to minimise arguments about costs of compliance.

Key amendments include:

  • Rule 414: A party may file a single request for a subpoena for the issuing of more than 1 subpoena. The court may also issue a subpoena electronically.
  • Rule 415: The formal requirements for subpoenas are more clearly enumerated. Also there is now a requirement that a subpoena must state the “last date” for service of the subpoena. The last date for service of a subpoena means the date fixed by the court by which the subpoena must be served, or, if no date is fixed, 5 days before the earliest compliance date as stated in the subpoena.
  • *Rule 415A:A party on whose behalf a subpoena is issued can, via written notice to the person to whom the subpoena is directed, postpone the date or time stated in the subpoena to give evidence or produce a document or thing. Once that notice is given, there is no requirement to amend the issued subpoena.
  • Rule 417: The court may order the party on whose behalf a subpoena was issued to pay the amount of any reasonable loss or expense incurred by the person to whom the subpoena is directed in complying with the subpoena. That order must fix the amount payable or direct that it be fixed by assessment. This amendment mitigates the court’s previous discretion to make an order for the payment of “any loss or expense incurred in complying with a subpoena”.
  • Rule 420: Production by a non-party or its agent can now be effected by delivering or sending the subpoena, or a copy of it, and the document or thing required to be produced to the registry, so that they are received not less than 2 clear business days before the earliest date stated in the subpoena.
  • *Rule 420A:If a subpoena requires a person to produce a document, the person may comply with the subpoena by producing a copy of the document. This copy can be a paper copy or an electronic copy in a format approved by the registrar. However, this subrule does not apply if the subpoena states the original document must be produced.
  • Rule 421: If a subpoena was issued electronically, the subpoena may be served by being emailed to the person, or, if the subpoena was issued in any other way, by emailing an imaged copy of the subpoena to the person. However, in order to enforce compliance with a subpoena, the subpoena or the imaged copy has to be received by the person, and they must have actual knowledge of the subpoena. This is a departure from the previous rule which required personal service of a subpoena.
  • *Rules 422-422D: The most significant amendment is the insertion of rules 422 to 422D. These new rules more precisely outline the procedure in relation to inspection, objection and removal of documents or things produced in response to a subpoena.
    • 422A: Parties to the proceeding can request in writing to the registrar to know whether production in response to a subpoena has happened. They can also inspect the document or thing unless a relevant person objects under rule 422A(3)(a)-(c).
    • 422B: If the person producing the document or thing objects to it being inspected by a party to the proceeding, they must, when producing the document or thing, give the registrar written notice of the objection and the grounds of the objection. In contrast, if a party to the proceeding, or a person having a sufficient interest in the document or thing, objects to the document or thing being inspected by a party to the proceeding, they may give the registrar written notice of the objection and the grounds of the objection. On receipt of a notice of objection, the registrar must then notify in writing the party on whose behalf the subpoena was issued of that objection, and must not allow any person to inspect or further inspect the document or thing. That party may then, on reasonable notice to the objector, apply to the court for a decision about the objection.
    • 422C: Documents or things can be removed from the registry only on an application in writing signed by the solicitor for a party to the proceeding. That solicitor is taken to undertake that the document or thing will be kept in the personal custody of the solicitor or of counsel briefed by the solicitor in the proceeding; and that it will be returned to the court in the same condition, order and packaging in which it was removed.
    • 422D: A party to a proceeding may ask the registrar to produce a document or thing in the custody of the court or another court. The request must be made in writing and identify the document or thing. The registrar may inform the party that they should apply to the court for directions. If the court holds the document or thing, the registrar must produce the document or thing as required by the party or as the court directs. If another court holds the document or thing, the registrar must arrange for the other court to provide it.

If you have any queries in relation to the amendments or require any assistance regarding a subpoena, please do not hesitate to contact Paula Freeleagus, Assistant Crown Solicitor of the Commercial Dispute Resolution team on 3006 8141 or be email on paula.freeleagus@crownlaw.qld.gov.au

*Denotes the insertion of a new rule.