Subpoenas

Question 1

In deciding whether to issue subpoenas, Magistrate is acting in an administrative, not judicial capacity.

Answer 1

Amman v Wegener (1972) HCA

Magistrate ordered subpoena to attend to give evidence at criminal committal hearing.

Question 2

It is not contempt to correctly advise someone that they need not produce a document under subpoena, even if you have an ulterior motive.

Answer 2

Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) [1981] HCA 35

Lane found guilty of contempt for advising Bank of Tokoyo whether a document needed to be produced.

Question 3

Subpoena for company documents should be served on the company via its proper officer – otherwise, employee can say “I have no authority to produce these documents”.

Answer 3

Rochfort v Trade Practices Commission (1982) HCA per Mason J

Subpoena served on an employee of company - fraught with difficulty.

Question 4

The ability of a State or Territory to serve, in other parts of Australia under SEPA Act, a summons to appear before a tribunal (including a criminal investigative commission), was upheld

Answer 4

Dalton v NSW Crime Commission [2006] HCA

P in Victoria and served with notice to attend - argued that subpoena to attend NSWCC went beyond constitutional power as not a “civil or criminal proceeding”.

Question 5

The Evidence Act does not apply to subpoenas, as they are not “adducing evidence”

Answer 5

Northern Territory of Australia v GPAO (D172-1997) [1999] HCA 8

Argued that NT Act re subpoenas was inconsistent with Evidence Act 1995 - Evidence Act has no applicability to subpoenas

Question 6

Failure to comply with subpoena is contempt of court and can result in imprisonment

Answer 6

James v Cowan [1929] HCA

D refused to produce documents because Minister told him not too.