Subpoena - Declaration by addressee. Notice to addressee (Form 44)

When someone produces documents to the Federal Court under a subpoena, they must declare whether the documents are originals (r 24.17(7A) of the Federal Court Rules 2011). Copies not declared to be originals may be destroyed 4 months after the proceeding ends once they are no longer needed, including on appeal (r 24.21(3)), while originals are returned. Form 44 explains this to the recipient and contains the declaration. The Subpoenas and Notices to Produce Practice Note (GPN-SUBP) says the issuing party must attach a Form 44 to the front of a subpoena requiring production. The January 2023 versions of Forms 43B and 43C now include a declaration by the addressee within the subpoena itself.

When you need it

• You are an issuing party serving a subpoena to produce documents and need to attach the notice and declaration (GPN-SUBP paras 6.3 and 6.4).
• You have received a Federal Court subpoena to produce with a Form 44 attached and are returning documents to the Court.
• You are using a subpoena form that does not contain its own declaration by the addressee.

1. 1

   Issuing party: complete the heading

   Insert the proceeding number, District Registry, Division and parties, matching the subpoena, and attach the form to the front of the subpoena before it is served.

2. 2

   Recipient: read the notice

   The notice explains that you may produce copies unless the subpoena asks for originals, that a copy may be a photocopy or an electronic form the issuing party has said is acceptable, and what will happen to the material afterwards.

3. 3

   Tick one box

   Tick 'All copied documents' if everything you are producing is a copy and may be destroyed, or 'Some original documents' if any of it is an original that you want back.

4. 4

   Give a return address for originals

   If you ticked the originals box, write the address the Court should return all the material to.

5. 5

   Sign and date

   Sign as the addressee and date the declaration. A company signs through an appropriate officer (r 24.13(9)).

• Return the completed declaration attached to the subpoena or a copy of it, with the documents, to the Registrar at the address given in the subpoena, so they arrive at least 2 clear business days before the production date, or bring them on that date (r 24.17(4)).
• GPN-SUBP also asks for a cover letter saying whether the subpoena has been fully complied with and setting out any objections (para 6.11).
• If you object to anyone inspecting a document, tell the Registrar in writing, with your grounds, at the time of production (r 24.20(5)).

• Keep a copy of everything you produce. The Court encourages this.
• Produce to the Court, not to the party that issued the subpoena, unless the Court orders otherwise (GPN-SUBP para 6.10).
• If the subpoena you received already contains a declaration by the addressee, complete that one; if it has both, make sure the answers match.