SCR o 42 – Subpoenas and 42A - Subpoenas for Production to Prothonotary

Question 1

42.02 Issuing of subpoena

Answer 1

The Court may, in any proceeding, by subpoena order the addressee—

• to ATTEND to give evidence as directed by the subpoena (Form 42A);
• to PRODUCE the subpoena or a copy of it and any document or thing as directed by the subpoena (Form 42B); or
• to do BOTH of those things (Form 42C).

Question 2

42.03 Form of subpoena

Answer 2

ALL subpoenas must:

• be addressed to one person ONLY; AND
• identify the addressee by name or by description of office or position.

A subpoena to PRODUCE must:

• identify the document or thing to be produced; AND
• specify the date, time and place for production.

A subpoena to ATTEND to give evidence must:

• specify the date, time and place for attendance.

The last date for SERVICE of a subpoena is the date falling 5 DAYS BEFORE the earliest date on which an addressee is required to comply with the subpoena or OTHERWISE a date fixed by the Court; and shall be specified in the subpoena.

Question 3

42.06 Compliance with subpoena (when need not comply)

Answer 3

SERVICE AND CONDUCT MONEY

An addressee need not comply with a subpoena unless it is SERVED on or before the day specified as the last day for service.

An addressee need not comply with a subpoena to ATTEND to give evidence (Form 42A) or a subpoena BOTH TO ATTEND to give evidence AND TO PRODUCE (Form 42C) unless CONDUCT MONEY has been provided a reasonable time before the day attendance is required.

Question 4

42.11 Costs and expenses of compliance

Answer 4

The Court may order the issuing party to pay any REASONABLE expense incurred in complying with the subpoena (IN ADDITION TO ANY CONDUCT MONEY or witness expenses payable to the addressee).

Question 5

42.12 Failure to comply with subpoena is contempt of court

Answer 5

Failure to comply with a subpoena WITHOUT LAWFUL EXCUSE is a CONTEMPT of court and the addressee may be dealt with accordingly.

An addressee NOT PERSONALLY SERVED may STILL be dealt with for contempt of court IF they had actual knowledge of the subpoena and of its requirements by the last day for service of the subpoena. (i.e. can’t avoid compliance by avoiding formal personal service).

Question 6

42A.01 Application (of Order 42A - Subpoena for Production to Prothonotary)

Answer 6

This Order applies where a party (who has a solicitor) wants a NON-PARTY TO PRODUCE ANY DOCUMENT any document before—

• the hearing of an interlocutory or other application; or
• the trial.

Order 42 also applies so far as is practicable to a subpoena to produce under this Order.

Question 7

42A.02 Issuing subpoena (FOR PRODUCTION TO PROTHONOTARY)

Answer 7

A subpoena issued under O42A shall require the addressee to produce a specified document to the Prothonotary by a specified day.

Form 42AA.

Question 8

42A.04 Affidavit of service

Answer 8

A subpoena under 42AA for production to the Prothonotary must be served personally.

The issuing party shall:

• SERVE a copy of a 42AA subpoena on EACH OTHER PARTY as soon as practicable after the subpoena has been served on the addressee (ordinary service fine); AND
• FILE an affidavit of service.

Question 9

42A.05 Compliance with subpoena

Answer 9

The addressee must COMPLY with the subpoena by producing the document to the Prothonotary by DELIVERING OR SENDING it by the DAY SPECIFIED in the subpoena.

Unless the subpoena specifically requires production of the original, COPY IS OK.

Question 10

42A.07 Objection by addressee or other person

Answer 10

If:

• the ADDRESSEE has any objection to producing a document identified in the subpoena or to its being inspected by any one or more of the parties; or
• a PERSON WITH A SUFFICIENT INTEREST, OTHER THAN A PARTY, has any objection to the production of a document identified in the subpoena or to its being inspected by any one or more of the parties—

that person shall notify the Prothonotary in writing of that objection stating grounds before the day specified in the subpoena.