Service of Interstate Subpoenas
The Service and Execution of Process Act 1972 (Cth) (SEPA)at part 4 sets out a number of requirements for service of process and subpoenas by or on behalf of Tribunals. When serving subpoenas interstate, section 57 of SEPA requires that leave from “a court of a State in which a subpoena is issued” be obtained to serve the subpoena outside the State. Section 57 goes on to set out the procedures that need be complied with to obtain this leave.
Serving an ACAT Subpoena outside the ACT – special procedure to be followed
The ACT Civil and Administrative Tribunal Act 2008 (“the ACAT Act”) at section 41 and Direction 20 of the ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1) Notifiable Instrument NI2010-551) empowers the ACAT generally to issue subpoenas, and sets out the rules relating to subpoenas generally.
Section 57 of SEPA requires that a court give leave to serve a subpoena issued by the ACAT on a person or entity outside the ACT. Application for leave will need to be made to the Supreme or Magistrates Court.
The Joint Rule-making Committee of the Supreme Court and Magistrates Court (JRAC) has made procedural rule 6615,Court Procedures Rules 2006 dealing with applications for leave and has approved two forms (Form 6.23 and Form 6.24) that must be completed and submitted when an application is made.
In practical terms, you must prepare the subpoena, an affidavit setting out details relating to the subpoena and the recipient, and a draft order to be signed by the judge or magistrate granting leave. The following is a suggested process to follow to have the ACAT to issue a subpoena that has to be served outside the ACT. (Note that this applies only to subpoenas to be served outside the borders of the ACT.)
1. Make sure you know what the ACAT Act, procedural directions and Rule 6615 of the Court Procedures Rules 2006 say about subpoenas.
2. Complete the approved form for the ACAT Subpoena. If the subpoena is for someone to give evidence at a hearing, show the date and start time of the hearing as the time the person must appear. If the subpoena is to produce documents, you may make it “returnable” at 10am most Monday mornings. If you are not certain as to the date you should put in the subpoena ask staff at the ACAT registry.
3. Complete the approved form 6.23 AF2009-287 (affidavit in support of your application for leave to serve the subpoena outside the ACT). Make sure that your affidavit has all the information required by rule 6615.
4. Complete the approved form 6.24, AF2009-288 (draft order for leave).
5. Check the current ACAT fee for issuing a subpoena (This changes from time to time).
6. Send or take one original and two copies of each of the subpoena, the affidavit and the draft order (a minimum of 6 documents) to the ACAT registry with the filing fee.
7. An ACAT registrar will check the subpoena and seal it if it meets the legislative and procedural requirements of ACAT. The registrar may not be able to do this straight away so you may need to leave the paperwork with the ACAT.
8. If your paperwork is in order, ACAT will arrange for your application for leave to serve the subpoena outside the ACT to be taken to either the Supreme Court or the Magistrates Court and for it to be considered.
9. ACAT registry staff will contact you when advised of the Court’s decision. You will need to collect the subpoena from the Registry and arrange to serve it. You will note that for service to be valid, a form in accordance with the SEPA has to be annexed to the final document. You should check the SEPA Act for the correct form, and complete it as appropriate. It will usually be Form 5, if your interstate subpoena is to obtain documents, but look at the Act to ensure that this is the appropriate choice.
10. Subpoenas are served by giving a sealed or stamped copy of the subpoena personally to the addressee. That may not be necessary if the addressee is represented by a lawyer or is a medical expert.
11. The subpoena when served must have annexed to it the form provided by ACAT. Failure to include this form invalidates service and the subpoena itself, and you cannot rectify this problem in any way. You would have to reserve the document.
12. It is a requirement of subpoena service that the reasonable expenses of compliance with the subpoena are tendered to the recipient at the time of service. This is also called “conduct money”. You should ensure you pay the addressee’s reasonable expenses of complying with the subpoena. For interstate travel you are not obligated to supply a first class airfare, but enough money to get to the hearing and home again, e.g., by bus, should be considered. Generally, this is negotiated with the recipient of the subpoena before service.
IMPORTANT NOTES: Make sure that there is enough time before the return date to serve the subpoena within the relevant time limit.
If you are not certain of what you should do at any stage, please contact an ACAT Registrar by telephone, facsimile or email.
ACT Civil and Administrative Tribunal
Level 4, 1 Moore Street
Telephone: (02) 6207 1740
Fax: (02) 6205 4855