Guide to whether subpoena to overseas witnesses allowed

Cases

Guide to whether subpoena to overseas witnesses allowed

A recent decision in a prosecution case launched by the Fair Work Building Inspectorate may provide guidance on whether issuing subpoenas to witnesses who are currently located overseas may be permitted.

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A recent decision in a prosecution case launched by the Fair Work Building Inspectorate may provide guidance on whether issuing subpoenas to witnesses who are currently located overseas may be permitted.
 
 
The Inspectorate is prosecuting a building company and three of its managers in an adverse action case. The central issue in the case is the allegation that the company dismissed an employee after the union that was a party to an enterprise agreement complained to the company that the employee had ceased to be a union member.
 
The employee was originally employed under the agreement, but later moved to a better-remunerated salary arrangement and allegedly resigned from the union. When the union complained to management, the three managers allegedly ended his salaried arrangement and returned the employee to the terms and conditions of the enterprise agreement.
 
Importance of the ‘overseas’ evidence
 
The former employee now worked in India. While still in Australia, he had provided a statement that claimed he could provide evidence that, if admitted, the Federal Circuit Court believed would prove the claims that the Inspectorate was relying on, which related to two meetings the employee had attended and an email he had sent to the employer. The Court claimed that this evidence would be ‘sufficiently important’ to being able to prove the case.
 
Other relevant principles
 
The Court said that the ability to enforce a subpoena was also an important factor in the decision to issue one to an overseas resident. It was also guided by the principle that ‘a foreigner, resident abroad, will not lightly be subjected to a local jurisdiction’.

The former employee would be liable for punishment if he did not comply with the subpoena without lawful excuse. It was considered relevant that he was an Australian national who had spent most of his working life in Australia and was expected to return there.
 
Message: Even if a potential witness is now overseas and would probably be unable to attend court proceedings at short notice, it may still be possible to apply to have him/her subpoenaed to attend, if the evidence he/she is likely to provide is central to the case and if the judicial arrangements applying in the other country will not be subverted.
 
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