Court orders

Defence is responsible for production of documents in response to court orders or legislative requests for criminal and civil matters.

Court orders for production of documents include Subpoenas, Notices to Produce, Notices for Non-Party Production and Summons issued by a court or tribunal, including Coroners Courts, Commissions or Inquiries.

Addressing and serving the court order

Court orders for production of documents by the Department, including the Australian Defence Force, are to be addressed as below:

The Secretary / The Proper Officer

Department of Defence

Campbell Park Offices

Northcott Drive CP2-4-069

PO Box 7911

CANBERRA BC ACT 2610 

The Department can accept electronic service by email. A copy of the sealed court order must be emailed to defencelegal.litigation@defence.gov.au.

Electronic service is only deemed valid when a confirmation receipt is returned by a member of GC-DRL.

Court orders for an individual officer to give evidence in their personal capacity must be issued to and served on the individual who will be required to give evidence.

Costs of complying

Defence requires conduct money in accordance with applicable court rules for the jurisdiction. Conduct money goes toward the costs associated with complying with the court order.

Cheques for payment of conduct money should be made payable to 'Department of Defence', be included with the relevant sealed court order, and posted to the contact address.

Where the issuing party is receiving legal aid for the matter, Defence may agree to waive any requirement for conduct money. The issuing party should contact Defence directly to request the requirement be waived.

In addition to conduct money, Defence reserves its right to apply to the court or tribunal to seek that the issuing party pay the reasonable costs incurred in complying with the court order.

Requesting documents

If the documents requested relate to an individual, the court order should include their full name, date of birth and employee ID or service number.

Court orders for production of documents must identify the specific documents or specific category of documents to be produced. Wherever possible, the request should specify a date range for the documents requested.

Due to the decentralised management of records at Defence, different categories of records are held across multiple locations and business areas.

General categories of records:

  • Personnel and service records - records relating to enlistment, service history, courses and certifications, conduct, career management, discharge, etc.
  • Employment records - employment contracts, payroll information, leave records, etc.
  • Health records - medical, dental, psychological, physiotherapy, etc.

It is recommended court orders be drafted to avoid references to 'all records', and instead specify the category of the record, the subject matter of the record and the date range for those records. Not doing so may lead to delays in responding to court orders.

Negotiation

Where the scope of the court order is imprecise or may be oppressive, Defence will contact the issuing party to negotiate the scope of records sought, and where possible, assist the issuing party identify the records they require for the purposes of the proceeding.

The issuing party should be prepared to provide information about the legitimate forensic purpose of the court order, and the relevance of the records sought to the issues in the proceedings.

Timelines

Defence requires reasonable time to comply with a court order for production, and will seek an extension to the return date of documents where necessary. The following request types may require substantially more time:

  • large volume of documents
  • documents that are held across a range of different branches or groups within the Department
  • documents that may contain sensitive information
  • documents that are held in remote locations including overseas.

Objecting

Defence reserves the right to apply to the court or tribunal to have a court order for production set aside, in whole or in part, in particular circumstances, such as:

  • where the court order would remain an oppressive or undue burden on Defence
  • where the court order is an abuse of process.

Defence also reserves the right to object to the disclosure of particular information captured by a court order, for example information that should be protected from disclosure due to its sensitivity or potential prejudice to Defence.

If Defence intends to make such objections, it will discuss its concerns with the issuing party first, where possible.