Annex A1 - Consequences of mishandling a subpoena

Date Published

Anyone handling a response to a subpoena must be aware that if it is incorrectly handled, they may become personally liable for any contempt of court.  The following is from a circular from the Australian Government Solicitor issued in 1990:

The (NSW) Court of Appeal found a former officer of a department guilty of contempt of court for an answer he arranged to be given to a subpoena addressed to his department.  The Court of Appeal was also critical of another officer involved.

... The subpoena required the production of documents relating to certain communications between Australia and a foreign Government.  The subpoena reached the responsible officer in Canberra on a Friday morning, and required a response the following Monday morning.  The responsible officer conducted a search of documents held in Canberra.  No enquiries were made about documents held overseas.  The responsible officer arranged for the Court to be informed that there were no documents that fell within the scope of the subpoena.  In subsequent proceedings it was revealed that that response was wrong.  There were documents caught by the subpoena held in an Australian Embassy overseas.  The responsible officer was found guilty of contempt of court.

While the Court found that the failure to produce the subpoenaed documents was not deliberate it was severely critical of the actions of two Commonwealth officers.  The officer found guilty of contempt was ordered to pay the costs of the claimant in the contempt proceedings ($5,000). The officer will be required to pay half that amount personally with the remainder being met by the Commonwealth.  In imposing the penalty the Court clearly intimated that if it had found that the contempt was deliberate, a more severe penalty (which could include a term of imprisonment) may have been warranted.

The Court emphasised the fact that a subpoena is a Court Order and stressed the need for a proper response, which would include:

a. a full and thorough search for all documents covered by the subpoena anywhere in the department where such documents may be held and production of those documents to the court; or

b. if time does not permit a full and thorough search, a statement to that effect with a request for further time if more documents than those produced are required.

If it is considered that it would be oppressive to carry out the work necessary to conduct a full and thorough search, the possibility of seeking to have the subpoena set aside could be examined.  Also if there are any objections to producing the documents, the possibility of making a claim of privilege could be considered.

The above case is reported as Ditfort v Calcraft (1989) 98 FLR 158