Subpoena to attend for examination (International Arbitration Act 1974) (Form 55A)

Section 23 of the International Arbitration Act 1974 (Cth) lets a party to arbitral proceedings, with the arbitral tribunal's permission, apply to a court to issue a subpoena requiring a person to attend for examination before the tribunal. A subpoena to a non-party can only issue if that is reasonable in all the circumstances (s 23(5)), and the person cannot be compelled to answer anything they could not be compelled to answer in court (s 23(4)). In the Federal Court, the party files an application in Form 54 with a draft subpoena and supporting affidavit (r 28.46). Form 55A is the draft subpoena where only attendance for examination is required (r 28.46(3)(a)).

When you need it

• You are a party to an arbitration and need a witness to give evidence before the tribunal.
• The tribunal has permitted you to seek the subpoena (IAA s 23(2)).
• Use Form 55B if you only need documents produced, or Form 55C for both.

1. 1

   Complete the heading and addressee

   Insert the proceeding details and the name and address of the single person to be examined.

2. 2

   Insert the last date for service and your address

   Insert the last date for service and the name and address for service of the issuing party. The issue date and the officer's signature are completed by the Court.

3. 3

   Set the examination details

   Insert the date and time, and for the place, the name of the arbitral tribunal and its address. The witness must keep attending from day to day until excused.

4. 4

   Add a schedule of parties if needed

   List any second and later parties in the schedule at the end, 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)).
• Once issued, serve the subpoena on the addressee by the last date for service shown on it.
• The addressee need not attend unless conduct money sufficient for reasonable expenses is handed or tendered a reasonable time before the attendance date (Note 4 on the form).
• The Court may also fix an amount for the addressee's reasonable loss and expense and order the issuing party to pay it (r 28.46(4)).

• Get the tribunal's permission in writing before applying, since its terms go in the affidavit.
• The Subpoenas Practice Note (GPN-SUBP) does not apply to these subpoenas (para 1.2), so follow r 28.46 and any directions.
• If the witness does not attend, IAA s 23A lets a party apply for a court order requiring attendance.