Responding to subpoenas

Use this procedure when responding to subpoenas for open cases and cases that have been closed for less than three months.

Introduction

This procedure applies to open cases or cases that have been closed for less than three months.

For cases that have been closed for three or more months, forward the subpoena to the Child Protection Records Information and Release Team at 50 Lonsdale Street, Melbourne or email a scanned copy to childprotectionsubpoenaunit@dhhs.vic.gov.au.

For additional information see Responding to subpoenas - advice.

Procedure

Case practitioner tasks

  • Accept service of the subpoena.

Service of a subpoena cannot be refused by the department unless:

  • the subpoena was not issued by a court, and/or
  • the subpoena was issued without 'conduct money' (the amount of conduct money required to be paid differs in each court or tribunal. For matters returnable in Victoria it is usually approximately $10 and for matters where the material must be sent interstate it is approximately $50).

Subpoenas can be served by fax (however, conduct money and the issued subpoena would need to follow in the post).

A subpoena that requires a specific child protection practitioner to give evidence has to be served personally on the practitioner who is required to give evidence unless the practitioner agrees someone else can accept service on their behalf.

Subpoenas must have a court stamp and must indicate which party requested that it be issued.

If you are unsure of the validity of a subpoena you should seek legal advice immediately.

  • Read the subpoena carefully to determine exactly what is required.
  • Contact the local officer responsible for dealing with revenue for assistance with lodging conduct money and issuing a receipt.
  • Photocopy and register the subpoena in TRIM. Record the amount of conduct money provided and the receipt number. Contact the local records manager for assistance with TRIM registration.
  • Establish which court has issued the subpoena as this will determine how to respond. Subpoenas from the Family Court require a cover sheet to be provided with requested files. See Family Court and Federal Circuit Court protocol.
  • Make a note on CRIS of the time and date the department received the subpoena and conduct money.

This may be important if it becomes necessary to seek an extension of time from the court in order to comply with the subpoena.

  • Determine whether there are grounds for objection to the subpoena. Objections are complex and rare. See Responding to subpoenas – advice for further information. Grounds for objecting include:
    • relevance
    • width – lack of clarity regarding the request
    • oppression – the request is overly burdensome (generally where a file is more than 500 pages you should consider contacting the person or firm requesting the subpoena and negotiate the scope of material sought)
    • public interest immunity
    • legal professional privilege.
  • If the department cannot meet the subpoena deadline (even if it is made first priority), contact the court that issued the subpoena to seek an extension. Propose an alternative and realistic date to the court.

In some cases, the court will direct the department to contact the party who initiated the subpoena process, requiring the department to explain personally why it cannot meet the deadline.

  • Print the CRIS case notes that relate to each child named on the subpoena.
  • Read the file thoroughly.
  • If the file has been subpoenaed, produce a copy of the original documents and ensure they are securely attached in a file. Do not send loose sheets of paper to the court. Ensure both the CRIS and paper file are included.
  • Keep the original copy of the file, as you will need that material to prepare for court. The court should then destroy their copy of the record when it is no longer required.
  • Place any documents where production would otherwise be prohibited by law, for example reporter details, in a sealed envelope marked with a request that these documents not be released except at the direction of the Judge or Magistrate and the reasons why, including the relevant legislative provisions. A precedent cover sheet can be obtained from the Child Protection Records Information and Release Team at 50 Lonsdale Street, Melbourne. Attach this information to the front of the file.

Examples of information that should be dealt with in this manner include:

  • details that could identify a reporter where the reporter has not consented to such disclosure (ss. 41 and 191 CYFA)
  • documents prepared for the purpose of obtaining or providing legal advice, including any emails between child protection practitioners and Legal Services (as they attract legal professional privilege)
  • court reports prepared for the children’s court where they have been subpoenaed by parties who were/are not parties to the children's court proceedings (s. 552 CYFA)
  • information given in confidence may be removed under s. 209 CYFA, (such as when a person asks for their address to be withheld)
  • conciliation conference evidence, should be removed under s. 226 CYFA
  • personal information that may be removed under information privacy principle 2, such as carer details or assessments or national police history checks
  • health records (such as toxicology screens or psychiatric reports) of persons not mentioned in the schedule, though in some cases this information may be relevant to proceedings and should not be placed in a sealed envelope.

See Responding to subpoenas – advice for additional information.

  • Ensure a copy of the subpoena is placed within the copied file.
  • Record the response to the subpoena in TRIM and CRIS.
  • Transport the file to the registrar or appropriate court official. It is preferable for the file to be delivered in person, couriered or delivered by registered mail so a record of receipt can be obtained. Attach the receipt to the file.
  • Never give the file to the person who initiated the subpoena even if they request it.
  • If the subpoena requests the personal appearance of an individual (for example, the child protection practitioner), it may be sufficient for production of the records only (that is, direct evidence from a staff member may not be necessary). Practitioners can make enquiries of the person or law firm that initiated the subpoena to clarify this and if necessary contact the department's Legal Services.
  • If a file has been sent to court and information about the reporter or legally privileged information has not been removed from the file, contact your solicitor or divisional legal officer immediately to arrange an application to the appropriate court.  Once a file is delivered to court, pursuant to a subpoena, it should not be interfered with, except by order of a Judge or Magistrate.
  • If the subpoena is requesting the personal appearance of a senior member of staff other than the child protection practitioner (such as the Secretary) contact the department's Legal Services.

For cases that have been closed for three months:

Supervisor tasks

  • Provide ongoing supervision and consultation.

Team manager tasks

  • Provide ongoing supervision and consultation.
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