Federal Magistrates Court Subpoena Rules Changes

The Federal Magistrates Courts Rules have been amended from this Monday 30 November to substantially change the manner in which procedural aspects of subpoenas are dealt with in that court:

1. There are new forms of subpoenas. Don’t comply with those, and you won’t get your subpoena issued.
2. The timeframe for issuing subpoenas has changed. The rules now provide that a subpoena for the production of documents needs to be issued without leave 14 days before production. In reality, this will probably be 15 days. A subpoena to give evidence, without leave, needs 7 days before the court date. For medical records, a new special rule applies. Again, the reality is that this will probably be 8 days. Previously for family law subpoenas, the Federal Magistrates Court adopted the Family Court approach: without leave 7 days for production of documents, and 2 days for giving evidence. Due to an arcane view by registry staff of the 7 day rule, in practice this was always 8 days.
3. Respondents to subpoenas have a new notice of objection.
4. For medical records, the person whose medical records they are may, before the date stated for production, notify the Registrar in writing that they want to inspect the records for the purpose of determining whether to object to the inspection or copying of the document by any other party. If that notice is given:
   (a) that person may inspect the medical records and may, within 7 days after the date stated in the subpoena for production, object to inspection or copying of a document described in this subpoena by completing filing and serving the attached Notice of Objection –Subpoena, and
   (b) unless otherwise ordered, no other person may inspect the medical records until the later of 7 days after the date stated in the subpoena for production or the hearing and
   determination of the objection.
5. This may mean careful consideration of when subpoenas for medical records are returnable. The temptation is to have them issued 22 days before court. The difficulty is that some registries, such as Brisbane, have been making subpoenas returnable on the day of court, even if that is a month or more away. This could prove problematic.
6. Subject to any objection being upheld or an order of the Court and subject to the issuing party filing a notice of request to inspect in the approved form, each party and any independent children’s lawyer may, by appointment, inspect all documents produced in response to this subpoena and may take copies of all documents produced in response to this subpoena (other than a child welfare record, medical record, criminal record or police record).
7. There is now explicitly stated that the documents can only be used for the proceedings, reflecting in black and white the common law position:
8. A person who inspects or copies a document produced in response to this subpoena must:
   (a) use the document for the purpose of the proceeding only; and
   (b) not disclose the contents of the document or give a copy of it to any other person
   without the Court’s permission.
9. Child welfare records, medical records, criminal records and police records produced in
   response to this subpoena will be available for inspection by each party and any independent
   children’s lawyer, but these records will not be available for copying.
   Child welfare records are records relating to child welfare held by a State or Territory agency mentioned in Schedule 9 to the Family Law Regulations 1984.
   Note: For child welfare records, there may be restrictions on inspection imposed by protocols entered into between the Court and the relevant child welfare department.
   Criminal record means a record of offences for which the person has been found guilty.
   Medical record means the histories, reports, diagnoses, prognoses, interpretations and other data or records, written or electronic, relating to the person’s medical condition, that are maintained by a physician, hospital or other provider of services or facilities for medical
   treatment.
   Police record means records relating to the person kept by the police, including statements, police notes and records of interview.
10. Presumably the rules change now overrides the Brisbane subpoena rules, which have now been removed from the court’s website.