$89 AUD + GST

per month - minimum 3 month subscription

Train Your Staff Affordably

Reduce Your Practice Risks

Access on Desktop,
Phone or Tablet

Defamation & Protecting Reputation

A complete guide to acting in defamation and related areas of the law including privacy, breach of confidence, injunctive relief, injurious falsehood, and misleading and deceptive conduct.


Recent publication updates can be viewed on Obiter - our News & Updates site.



MATTER PLAN
  • This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
  • This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ While references to legislation and courts in this guide are NSW based, unless otherwise stated, the general law relating to subpoenas does not differ between states – only the procedure in some respects. In some Australian jurisdictions the term ‘summons’ is used instead of ‘subpoena’, as in ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ Uniform evidence law applies in NSW, Victoria, Tasmania and the Territories. However there are variations between the various Evidence Acts in these jurisdictions. There is a useful comparative chart prepared by the Commonwealth Attorney-General’s Department regarding differences between the ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, is ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which jurisdiction/court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Technically, documents should be produced to the court, subject to the objection: see Objections below. Where the nature of the ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ In criminal cases s 225 of the Criminal Procedure Act 1986 (NSW) provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ The leading NSW civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’s Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek documents ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R [1984] HCA 85 and has frequently been claimed, considered and applied ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
      • “ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. See: Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 at [11]. Both forms ... ”
        This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ If the subpoena is pressed over your objection you will need to file the appropriate document to bring the objection before the Court. If unsure, check the rules of the Court in which the subpoena is issued or ask the Court registry. The procedure varies not just from state to state, but from court ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ A subpoena is a court order requiring production of stated documents to the court. Even if there is an objection, unless the objection is for oppression or relates to public interest immunity, then the documents should be produced, subject to the objection. The way to deal with this is to produce ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.
    • “ Access to, or inspection of, documents produced under subpoena is governed by the rules of court applicable to the various jurisdictions and always at the court’s discretion - see, for example, r 33.8 Uniform Civil Procedure Rules 2005 (NSW). It is important to know how access orders are dealt with ... ”
      This excerpt is a preview of the full publication. You can Subscribe Now and gain immediate access to the complete publication.

Disclaimer

$89 AUD + GST

per month - minimum 3 month subscription

Train Your Staff Affordably

Reduce Your Practice Risks

Access on Desktop,
Phone or Tablet