Question
of the week Question of the week

Curious. Interesting. Informative.

01 December 2017

I object

Litigation
Victoria

Asked

County Court - Objection to subpoena for production

Hi Mentor,

This query relates to responding to a subpoena for production at the County Court - form 42AA.

1. When making an objection to produce is there a particular form to use? Can the objection be in a form of a written letter?

2. Is it the practice to list the documents being objected to, or provide them in a sealed envelope with a clear heading to that effect?

3. What will generally happen upon objection?

Thanks in anticipation.

Answered

Thank you for your question.

There is no prescribed form for objection. Under r 42.07 the objection needs to be in writing and can be in the form of a letter. The letter needs to state the grounds of the objection. The notice must be given to the Registrar before the day for production specified on the subpoena. If the objection covers only some documents but not others, the documents that you object to producing should be listed.

The procedure is then that the Registrar will list a hearing before a judge or associate judge for the objection to be heard and determined: r 42.09. The Registrar will notify the party who has issued the objection and they must then inform the other parties. At the hearing the party objecting must produce sufficient evidence to support the objection - for example, evidence supporting a claim of privilege or evidence of the oppressive amount of work that will be required to answer the subpoena.

As to whether the objected documents need to be provided, there is no express requirement in the rules. It depends on the grounds of the objection.  If the objection is that the subpoena is oppressive or too wide, then usually the documents would not be produced as the process of producing them would defeat the purpose of the objection. If the documents are privileged, they are often brought to the hearing of the objection in a sealed envelope as the court may wish to inspect them before making a determination.

Regards

Mentor