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What about disclosure, subpoena and summons?

Disclosure

Each Court has its own set of rules that set out the way in which information relevant to a Court case can be obtained from the parties to the dispute and from third parties or non-parties as they are often known. The idea behind disclosure is that there should be no trial by ambush and each party should have the opportunity to see all relevant evidence. Disclosure takes the form of mutual disclosure of documents and the answering of written questions about the matters at issue in a legal proceeding.

In Queensland the rules of disclosure for each of the Courts can be found in the Uniform Civil Procedure Rules 1999. Issues that should be noted include the following:

the rules differ for parties to court proceedings and those that are not parties to court proceedings
disclosure of documents is subject of certain rules
interrogatories is subject of certain rules.

Disclosure of documents can occur where the following criteria are met:

the person is a party to the proceedings
failure to disclose is contempt of Court
disclosure is subject to documents being in the possession and control of a party
disclosure is subject to documents being directly relevant to an allegation in issue on the pleadings
disclosure is subject of privilege
there are no reasons why documents need not be disclosed.

Third party or non party disclosure occurs where a party seeks the documents held by a third party. This is in addition to the power to issue a subpoena against documents held by a third party. Non party disclosure occurs where:

the document sought must be directly relevant to an allegation at issue in the pleadings
the document sought must be in the possession or under the control of the respondent
the document must be one that could be required to be produced at trial.

Non party disclosure canít be used if there is another simpler way of obtaining the documents such as administrative access, privacy release or freedom of information release. Non party disclosure occurs through a series of steps:

a notice of non party disclosure is drafted which states the allegation about which the document is directly relevant, certification that there is no other way to obtain the documents
the notice is served on the non party
if no objection successful production and/or copying.

The non party can object on a number of reasons such as:

the expense or inconvenience of production
the irrelevance of the document
lack of particularity
confidentiality
effects of disclosure on any person
failure to effect proper service.

Subpoena

A subpoena to produce documents differs from non party disclosure. Subpoenas are a legal document issued by the Court to produce documents, give evidence (or both).

A subpoena requires attendance before the Court. A subpoena can be requested by either party or be issued by the Court of its own accord. Like disclosure, a subpoena can be set aside for a range of reasons:

the request is irrelevant
the information or documents are privileged
responding would be oppressive, including substantial expense
failure to comply with the rules.

Subpoenas must be accompanied with conduct money and must be properly served. Failure to comply with a subpoena is contempt of Court.

As an example, consider a community worker who works in a community organisation that provides counselling and support for families who have experienced child sexual abuse. This worker will receive a request for non party disclosure. Likewise, womenís organisation such as shelters, support and counselling centres, health services, domestic violence services often receive requests for non party disclosure in family law proceedings.

Questions to ask around the topic of disclosures and subpoenas include:

Does your organisation undertake the sort of work that may be subject to disclosure, including non-party disclosure?
Does your organisation undertake the sort of work that may be subject to subpoena?
Do you have policies in place relating to disclosure?
Do you have policies in place relating to subpoena?
Are there any service agreement issues with disclosure or subpoena?
Are there any client confidentiality or privacy issues with disclosure or subpoena?
Are there any ethical or conduct issues with disclosure or subpoena?
Do you have access to legal representation and advice?