Bulletin 25 - Subpoenas
Legal issues bulletin 25 - Subpoenas
Legal issues bulletin 25 - Subpoenas
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The Department of Education is frequently served with subpoenas and other similar court issued process which requires the production of documentation to the Court. Staff may also be served with subpoenas requiring them to attend the court to give evidence. The following guidelines provide an outline of what steps should be taken by staff when they are served with a subpoena. For information about the production of documentation in response to notices issued by other government agencies, staff should refer to legal issues bulletin 47 – Requests for Information from Other Government Agencies .
A subpoena is a formal court order requiring the attendance of a person at court to give evidence, to produce documents or to do both. If served with a subpoena, the person to whom the subpoena is directed must comply with it unless otherwise excused by the party who has arranged for the subpoena to be issued. Failure to comply with a subpoena in the absence of being excused may result in the court issuing a warrant for the arrest of the subpoena recipient.
When served with a subpoena, generally conduct money should also be provided to the person served. For subpoenas requiring the production of documents, the conduct money is meant to cover the costs of assembling the relevant documents and sending them to the court. There is no rule about the amount required to be tendered but is normally about $50.00. If it is considered that insufficient conduct money has been tendered to cover the cost of assembling the documents, the subpoena should still be complied with in the first instance. After forwarding the documents, the solicitors who issued the subpoena can be contacted and requested to pay any additional sum considered reasonable to cover the costs of compliance. It should be noted however that any such request cannot be enforced if the payment is not forthcoming.
It should be noted that subpoenas issued by the police or public officers (i.e. employees of other NSW government agencies) are not obliged to provide conduct money with subpoenas seeking the production of documents though in many cases they will do so.
If required to attend the court to give evidence, the conduct money should be sufficient to pay the travel costs of getting to and from the court. If not served with sufficient conduct money to meet the reasonable travel costs of getting to and from the court, staff are not required to attend the court in answer to the subpoena until an amount to cover those reasonable costs is provided.
Staff will sometimes be subpoenaed to give evidence about matters that have arisen during the course of their official duties or about matters which they are aware of because of their role as teachers. A common example of the later is when required to give evidence in family court proceedings about students who they have taught. When this occurs staff will be regarded as being on duty. Principals should refer to Section 4.14.23 of the Teachers Handbook for information relating to teaching staff or Section 4.12.4 of the Handbook for Non-Teaching Staff in Schools Administrative & Clerical staff should refer to Section 6.18 of the Personnel Handbook.
If casual staff need to be employed to cover any absence arising from the need to comply with a subpoena, the cost of the casual relief can be sought from the party who has issued the subpoena. The subpoena should still be complied with if payment to cover the cost of casual relief is not met.
If staff are subpoenaed to give evidence about matters arising outside their official duties, they will be required to take leave without pay or access other leave available to them for the purpose of attending court. If leave without pay is taken, the party issuing the subpoena can be asked to pay a sum equivalent to the wages or salary lost by the staff member. Compliance with the subpoena will still be required irrespective of whether any payment for lost salary or wages is received. Further details are contained in the Teachers Handbook, the Handbook for Non-Teaching Staff in Schools (Section 4.12.5), or the Personnel Handbook.
Subpoenas can be served personally, by mail or electronic means to a named individual, a specific office holder (e.g. the principal of a school) or to nominal office holder (e.g. the proper officer, administrative officer). Service can be affected by delivering the subpoena at the school, State or regional office premises. Generally, subpoenas issued to specifically named individuals or office holders will be served at the work premises of those persons.
Subpoenas issued to nominal officers can be served at any relevant department premises and should be accepted by any departmental employee. Once accepted, the subpoena and any conduct money should be forwarded to the relevant school or other departmental location where the records are held. If insufficient information is contained within the subpoena to identify where the subpoena should be directed, contact should be made with the party issuing the subpoena to obtain relevant details.
In many cases, subpoenas are served on Legal Services. If this occurs, arrangements will be made for a copy of the subpoena to be sent to the relevant school, State or regional office location. A document outlining the steps to be followed will also accompany the subpoena.
If the subpoena relates to workers compensation proceedings, immediate contact should be made with the Manager, Work Health and Safety directorate.
In all other matters, the following action should be taken by principals or in the case of material within the area of responsibility of a particular directorate or unit of the department (functional unit), a suitably authorised person within that functional unit:
If the subpoena has been issued in a matter where the Department of Education are a party to the proceedings, a copy of the subpoena and the material collated in answer to it should be forwarded to Legal Services and not the court. Legal Services Staff will then arrange for the material to be sent to the court. If principals are in doubt about whether the department is a party to the proceedings, contact should be made with Legal Services.
A crucial element of both departmental policy and the Children and Young Persons Care and Protection Act 1998 (the Act) is the protection of the identity of the notifier.
In relation to risk of serious harm notifications, the Act provides the following protections:
If staff are served with a subpoena requiring production of documents not within their possession, the checklist below may assist in determining where the subpoena should be forwarded for further action.
Personnel files, including leave records, of permanent teachers in the Department of Education | Newcastle State Office* |
Salaries records for permanent teachers | Wollongong State Office* |
Personnel files, including leave records, of non-teaching staff in the Department of Education (including former non-teaching staff) | Bathurst State Office (SASS staff only) Oxford Street* (state office, district office SES and other administrative staff) |
Non-currently employed school teaching staff of the Department of Education | Blacktown State Office* |
Files relating to medical examination for Permanency/retirement for staff | Newcastle State Office (school teachers) |
Files relating to disciplinary proceedings involving staff | Professional & Ethical Standards, Child Wellbeing unit |
Workers' compensation files for staff | Work Health & Safety |
For all non-school-based staff
Level 13, 1 Oxford Street Darlinghurst
Ph. (02) 9266 8000
Fax. (02) 9244 5541 or (02) 9244 5776
Postal address: GPO Box 33 SYDNEY NSW 2001
For all non-teaching staff in schools in all regions
Level 1, 140 William Street Bathurst
Ph. 1300 338 003
Fax. 1300 338 123
Postal address: Locked Bag 1010 BATHURST NSW 2795
For teachers in Hunter and Central Coast, New England, North Coast, Northern Sydney and Western Sydney Regions
117 Bull Street Newcastle
Ph. 1300 338 001
Fax. 1300 338 121
Postal address: Locked Bag 6 Hamilton Delivery Centre HAMILTON NSW 2303
For teachers in Illawarra and South East, Riverina, South Western, Sydney and Western NSW Regions
84 Crown Street Wollongong
Ph. 1300 338 002
Fax. 1300 338 122
Postal address: Locked Bag 12 WOLLONGONG EAST NSW 2520
Casual.Direct
Ph. 1300 660 338
Fax. (02) 9836 9257
Email: Casual.Direct@det.nsw.edu.au
Postal Address: Locked Bag 3003 BLACKTOWN NSW 2148
Level 2, 22 Main Street, Blacktown
Ph. 1300 300 498 (option 2)
Fax. (02) 9836 9767
Postal Address: Locked Bag 3003 BLACKTOWN 2148
Level 1, 1 Oxford Street, Darlinghurst
Ph. 9266 8952
Fax. 9266 8934
Postal Address: GPO Box, SYDNEY, 2001
Ph. 9266 8070
Fax. 9266 8077
Postal Address: GPO Box 33, SYDNEY, 2001
Ph. 9269 9400
Fax. 9269 9444
Postal Address: Locked Bag 53, DARLINGHURST, 2010
Level 2, 22 Main Street, Blacktown
Ph. 131 075
Fax. 1300 556 306
Postal Address: Locked Bag 3003 BLACKTOWN 2148
Ph. 1300 302 338
Fax. 1300 737 338
Postal Address: Locked Bag 3003 BLACKTOWN NSW 2148