Application for a subpoena under the International Arbitration Act 1974 (Form 54)

Section 23 of the International Arbitration Act 1974 lets a party to arbitral proceedings commenced in reliance on an arbitration agreement apply to a court, including the Federal Court, to issue a subpoena requiring a person to attend for examination before the arbitral tribunal, to produce documents to it, or both. The application needs the arbitral tribunal's permission (s 23(2)), and section 23 applies unless the parties have agreed in writing that it will not (s 22(2)). Rule 28.46 of the Federal Court Rules 2011 requires the application to be in accordance with Form 54, with a draft subpoena and an affidavit.

When you need it

• You are a party to an international commercial arbitration to which the Act applies and need a witness to give evidence or documents produced to the tribunal.
• The arbitral tribunal has given permission for the application (s 23(2)).
• The arbitration agreement has not excluded section 23 (s 22(2)).
• If a person has refused to comply with a subpoena already issued, an order under section 23A is sought instead (r 28.47).

1. 1

   Heading and addressees

   Complete the District Registry, Division and parties, and in the 'To' line name each party who may be affected.

2. 2

   Hearing details

   Leave the time, date and place blank for the Registry.

3. 3

   Orders sought

   The form records that you, as a party to arbitral proceedings commenced in reliance on an arbitration agreement, apply for a subpoena under section 23(3). Adapt it to the subpoena you need.

4. 4

   Prepare the draft subpoena

   Use Form 55A to attend for examination, Form 55B to produce documents, or Form 55C for both (r 28.46(3)).

5. 5

   Service option, date and sign

   Choose the service option, then date and sign as the party or its lawyer.

• File Form 54 with the draft subpoena and an affidavit stating the parties to the arbitration, the arbitrator, the place and nature of the arbitration, the terms of the tribunal's permission, any conduct money and the witness expenses payable (r 28.46(2)).
• File through eLodgment or at a District Registry. A filing fee may apply; check the fee schedule.
• The Court may fix an amount for the addressee's reasonable loss and expense in complying and direct the issuing party to pay it, in addition to conduct money and witness expenses (r 28.46(4), (5)).

• Attach the tribunal's permission or quote its terms exactly in the affidavit.
• For a non-party addressee, show why it is reasonable in all the circumstances to issue the subpoena (s 23(5)).
• A subpoena cannot compel an answer or document that could not be compelled in a proceeding before the Court (s 23(4)).