Subpoena to attend for examination and produce documents (International Arbitration Act 1974) (Form 55C)

Section 23 of the International Arbitration Act 1974 (Cth) lets a party to arbitral proceedings, with the arbitral tribunal's permission, ask a court to issue a subpoena requiring a person to attend for examination before the tribunal, to produce documents to it, or both. The court must not issue one to a non-party unless it is reasonable in all the circumstances (s 23(5)), and no one can be compelled to answer a question or produce a document they could not be compelled to in court (s 23(4)). In the Federal Court, the party applies in Form 54 with a draft subpoena and an affidavit (r 28.46). Form 55C is the draft subpoena for both attendance and production (r 28.46(3)(c)).

When you need it

• You are a party to an arbitration and need a witness to attend before the tribunal and bring documents.
• The arbitral tribunal has given permission for the application (IAA s 23(2)).
• Use Form 55A for attendance only and Form 55B for production only.

1. 1

   Complete the heading and addressee

   Insert the proceeding details and the name and address of the one person the subpoena is addressed to.

2. 2

   Leave the issuing details for the Court

   The date and the signature of the officer acting for the District Registrar are completed when the Court issues it. Insert the last date for service and the issuing party's address for service.

3. 3

   Set the examination details

   Insert the date and time, and for the place, the name of the arbitral tribunal and its address.

4. 4

   Set the production details

   Insert the date, time and place for production and the address of the tribunal to which documents may be delivered at least 2 clear business days beforehand.

5. 5

   List the documents

   Complete the Schedule of documents, describing each document or thing with reasonable particularity. Attach a list if needed.

6. 6

   Add a schedule of parties if needed

   Use the schedule at the end for any second and later parties, or delete it.

• File an application in Form 54 with the draft subpoena and an affidavit stating the parties to the arbitration, the arbitrator, where and what the arbitration is, the terms of the tribunal's permission, and the conduct money and witness expenses to be paid (r 28.46(1), (2)).
• The Court may fix an amount for the addressee's reasonable loss and expense of complying and direct the issuing party to pay it, in addition to conduct money and witness expenses (r 28.46(4), (5)).
• Serve the issued subpoena on the addressee by the last date for service, with conduct money a reasonable time before attendance.
• The Subpoenas Practice Note (GPN-SUBP) does not apply to these subpoenas.

• Documents go to the arbitral tribunal, not to a Court Registrar. Objections to inspection are also notified to the tribunal.
• Get the tribunal's permission in writing first, because the affidavit must set out its terms.
• If a person fails to attend or produce, IAA s 23A allows a further application to the Court for orders.