SUBPOENAS
CPA Power to issue Subpoena
UCPR 33
Issuing Subpoenas Procedural Requirements
-
By Motion with supporting affidavit
-
UCPR
-
Subpoena must be in approved form 33.3(1-9)
-
Generally Subpoena is issued without leave however leave is required in some jurisdictions (eg Small Claims)
-
In Federal Court, Generally leave is required to grant a subpoena FCR 24.01
-
In Local and District Court subpoena need not be served personally UCPR 10.20
Calling on a Suboena to give evidence
-
Ask person to be called
-
Swear them in as a witness
-
Ask them to state their name and address
-
Ask "Do you produce in answer to subpoena served on XXX the documents referred to in the subpoena
If yes:
-
The person hands to the Court
-
Asked "Do you have an objection to the parties having access to these documents ?"
-
If No then parties have access (need to seek particular forms of access)
If NO (There is an objection)
-
The Court will determine the objectionin light of the permissible objections to production.
-
Objections
-
Must be issued for a proper purspose otherwise may be set aside
NOT FOR PROPER PURPOSE
-
Where there in so pending trial
-
Not Relevent
Commissioner of Railways v Small
OPPRESSIVE
-
Unduly onerous
NO LEGITIMATE FORENSIC PURPOSE
-
NEMGA v Waind
FISHING
-
need reasonable particularity
Commissioner Railways v Small
-
Can use "referring to" or "relating to"
-
not fishing if you know what fish are in he sea
Saleem
-
"must be something beyond mere speculation, common ground for belief to take beyond fishing"
Air Canada
-
Privilege UCPR 1.9
-
Public Interest