FCFCOA Special Measures Information Notice – COVID-19 Electronic Subpoena Inspection

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(SMIN-COVID)

1. Introduction

1.1 This Special Measures Information Note (SMIN) sets out arrangements for the continued operation of subpoena inspections in the Adelaide, Brisbane, Cairns, Canberra, Dandenong, Darwin, Dubbo, Hobart, Launceston, Lismore, Melbourne, Newcastle, Parramatta, Rockhampton, Sydney, Townsville and Wollongong registries (the affected registries).

1.2 Due to the coronavirus (COVID-19) pandemic, the Federal Circuit and Family Court of Australia (the Court) has modified its practices in order to limit the number of staff, practitioners and litigants travelling to the affected registry buildings and minimise in-person attendance at the affected registries.

1.3 The cooperation of all court users and court staff is required in this regard.

1.4 This SMIN applies to all proceedings commenced on or after 1 September 2021. This SMIN will also apply to proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.

2. Registry operations

2.1 Whilst limited staff are on site in the affected registries, practitioners and parties should only request to inspect material that is of an urgent or priority nature, and directly relevant to, or necessary for, a court event to proceed.

2.2 This may include material required for:

  1. a Final Hearing listed within 8 weeks of the date of the request;
  2. an Interim Hearing listed within 4 weeks of the date of the request;
  3. a Dispute Resolution Conference scheduled within 4 weeks of the date of the request; or
  4. the preparation of an expert report scheduled within 4 weeks of the date of the request.

2.3 Material of an urgent or priority nature required for a Final Hearing or Interim Hearing will be prioritised. Material for a Dispute Resolution Conference or the preparation of an expert report will be accommodated as far as is possible.

3. Requesting access to material

3.1 When requesting access to material which is of an urgent or priority nature, parties and practitioners must provide the following information in their request:

  1. file number;
  2. date and type of court hearing, conference or expert report;
  3. specific material that access is being requested to, and whether it is 'inspect only' material (as defined in rule 6.37(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021);
  4. confirmation that a Notice of Request to Inspect has been filed;
  5. why the request is of an urgent or priority nature/the material is necessary for the event to proceed; and
  6. a copy of photo identification (such as a current driver's licence or passport) or confirmation that they are a lawyer acting on behalf of a party, and the law firm at which they work.

3.2 Requests should be made by email to:

  1. Adelaide – Adelaideviewingrequests@fcfcoa.gov.au
  2. Brisbane – Brisbane.subpoena@fcfcoa.gov.au
  3. Cairns – cairns@fcfcoa.gov.au
  4. Canberra – canberra@fcfcoa.gov.au
  5. Dandenong – dandenong@fcfcoa.gov.au
  6. Darwin – darwin@fcfcoa.gov.au
  7. Dubbo – dubbo@fcfcoa.gov.au
  8. Hobart – hobart@fcfcoa.gov.au
  9. Launceston – launceston@fcfcoa.gov.au
  10. Lismore – lismore@fcfcoa.gov.au
  11. Melbourne – melbourne@fcfcoa.gov.au
  12. Newcastle – newcastle@fcfcoa.gov.au
  13. Parramatta – parramatta.subpoena@fcfcoa.gov.au
  14. Rockhampton – rockhampton@fcfcoa.gov.au
  15. Sydney – sydney.subpoena@fcfcoa.gov.au
  16. Townsville – townsville@fcfcoa.gov.au
  17. Wollongong – wollongong.subpoena@fcfcoa.gov.au

4. 'Photocopy access' material

4.1 If the information is not 'inspection only', and 'photocopy access' is permitted, it will be emailed directly to the party or practitioner requesting the material, where onsite staff have the capacity to email these documents.

4.2 Consideration will be given to the volume of the material relevant to such requests and whether any practical or technical difficulties arise for large volume requests.

5. 'Inspection only' material

5.1 If the material sought to be inspected is police or child welfare agency records that relate to the investigation of allegations of child abuse in the form of sexual assault of a child or involving a child in a sexual activity, including in cases in the Magellan List, electronic inspection will not be permitted unless there are exceptional circumstances. Instead, arrangements will be made for this material to be inspected in a registry.   

5.2 If all parties are legally represented, the following procedure will apply:

  1. upon receipt of a request to inspect material, a Registry officer will refer the request to a Judge or Judicial Registrar who will confirm release and require that an appropriate undertaking be given by the legal representative to the Court that the material will be destroyed once inspected;
  2. once the undertaking is received, the material will be scanned and emailed to the requesting practitioner with 'limited security' settings applied;
  3. the practitioner must promptly confirm with the Court by return email that the material has been not been disseminated and has been destroyed; and
  4. the suggested form of the undertaking is as follows:

    I, [INSERT FULL NAME], Australian Legal Practitioner at [INSERT NAME AND ADDRESS OF FIRM], undertake to the Court that:

    I will not provide, disseminate or otherwise distribute electronic copies of the subpoenaed documents produced by [INSERT SOURCE] (either electronically, in printed format, or otherwise) to my client or any other person, save for my agent [INSERT NAME] or such other person [INSERT NAME] directed by me to complete the inspection on my behalf; and

    Upon inspecting the subpoena documents, I will take all reasonable steps to ensure to the best of my ability and knowledge that they are destroyed and permanently deleted from any storage or retrieval system (whether held by email, cloud storage or otherwise) within 7 days.

    In the event I fail to comply (or reasonably suspect that I have failed to comply) with this undertaking (even as a result of circumstances entirely beyond my control), I will immediately notify the Registrar of the Court in writing.

    I acknowledge that this undertaking has the same effect as an order of the Court. I acknowledge that if I breach this undertaking I may be guilty of contempt of court and punished by a fine or imprisonment.

5.3 Practitioners must refrain from taking photos of, or otherwise disseminating, 'inspection only' material.

5.4 If at least one party is not legally represented:

  1. The request will be referred to a Judicial Registrar or the chambers of the presiding Judge for consideration.
  2. The Judge will then consider whether it is essential that the hearing proceed as listed, or if it can be adjourned for a period until the current COVID-19 impacts are lessened.
  3. If it is essential that the hearing proceed, a Registry officer will be in contact with the requesting party to discuss arrangements for inspection at the relevant affected registry building.

 

The Honourable Justice William Alstergren

Chief Justice (Division 1) | Chief Judge (Division 2)

Federal Circuit and Family Court of Australia

Re-issued: 1 September 2021

Updated: 4 October 2021; 28 January 2022

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