Documents – discovery, subpoenas and FOI
For litigation between parties to be a fair contest all cards need to be on the table. There are several procedures available to you to ensure that other parties and non-parties disclose documents or information in their possession that are relevant to your dispute.
The most important procedures to obtain documents from another person are discovery of documents, subpoena of documents and applications under the Commonwealth, State and Territory Freedom of Information Legislation.
Discovery of documents
Discovery is a process where parties involved in litigation or arbitration allow other parties to view and obtain copies of all relevant documents in their possession. The objective is to ensure you are not surprised or ambushed in a court case or arbitration and to facilitate settlement. The various courts in Australia all have rules on how a party must comply with the discovery process.
Types of documents that you must disclose include electronically stored documents such as emails, tape or video recordings and photographs or pictures.
Generally, after commencing proceedings and filing their pleadings, the court or an arbitrator will require parties to provide a list of the relevant documents in their possession to other parties. The other parties can then request to inspect and make copies of the documents they require. If you believe that your opponent has failed to discover a specific document, you can apply to the court for an order that the document be discovered.
In exceptional circumstances, the court will allow discovery before commencing proceedings. This will be where you have a claim against another party but do not have sufficient information concerning the party to commence proceedings.
You can legitimately refuse to allow other parties access to documents that are irrelevant to the dispute, correspondence containing offers to settle and privileged documents or communications between you and your lawyer.
Subpoena of documents
When you want to obtain documents from a non-party to the proceedings, you can apply to the court for a subpoena. An example of where a subpoena may be used is if you are suing a director for using company information to make a secret profit. You can subpoena the other party to the transaction to produce communications and documents regarding the transaction.
A subpoena is a court order requesting the addressee to provide a document or thing to the court. The subpoena needs to comply with the relevant court’s rules and be in a specific format. It should specify what documents or things are requested and provide sufficient time to comply with the subpoena.
The court can order the party issuing the subpoena to pay the costs of the addressee in complying with the subpoena, which can be substantial. This may include the cost of legal advice concerning the subpoena’s validity and scope.
If you receive a subpoena, you may object on the basis that the documents requested are irrelevant, amount to a fishing expedition or are subject to privilege. If you receive a subpoena, it is advisable to approach a lawyer for advice on whether and to what extent you should comply. Failure to comply with a subpoena can have serious consequences, such as a prosecution for contempt of court.
Freedom of Information Act
The Commonwealth and the various States and Territories have all passed legislation allowing the public access to Government documents. For instance, the Freedom of Information Act 1982 (Cth) (‘Cth Act’) regulates public access to Commonwealth documents and the Freedom of Information Act 1992 (WA) (‘WA Act’) regulates access to Western Australian Government documents.
For example, under the WA Act, a person can access their hospital records to claim damages resulting from a negligent medical procedure.
Freedom of Information Act 1982 (Cth)
Under the Cth Act you can access commonwealth documents subject to certain limitations.
Documents exempt from disclosure are documents relating to national security, Cabinet documents and documents relating to the Australian Government Solicitor’s activities.
The application must be in writing, state that it is made under the Cth Act, describe the documents requested with particularity and provide a return address. The application may come at a cost, and you will be given an estimate if this is the case.
The department dealing with the request will respond within 30 days or apply for an extension. If your application is unnecessarily delayed or refused you can apply for an internal review of the decision.
Freedom of Information Act 1992 (WA)
Under the WA Act, the public can access government documents subject to certain limitations. Documents held by public hospitals, Ministers, Police, public Universities and other Government Departments can be accessed.
You can request documents, plans and drawings, photographs, movies and information electronically stored. Certain information cannot be requested such as personal information of an individual, business information of third parties such as trade secrets, confidential deliberations of government in a decision-making process, documents evidencing privileged communications between government and its legal advisors and information obtained in confidence unless it is in the public interest.
You must make the application in writing, specify the documents requested with particularity, pay the prescribed fee and supply a return address. The fee can be substantial depending on what information you request.
The government agency must comply with the request as soon as practicable, but in any event within 45 days. If the government agency does not provide the documents in time, they are deemed to have refused the application and you can apply for a review of their decision. This normally speeds up the process.
Douglas Cheveralls Lawyers are experienced in assisting clients to obtain documents necessary to enforce or protect their rights. Douglas Cheveralls Lawyers can act for you when you receive a subpoena and are unsure whether and what to produce.