Hearsay – What is it and when can you use it?

Susan Jayne

Susan Jayne

Online Legal Information Author at Family Law Express
Susan Jayne is currently in her fourth year of attaining degrees in both Law and Psychology. While volunteering at a Psychology Clinic throughout her university studies, she’s aspiring to find a career which utilises her new found knowledge in both of her chosen fields.
Susan Jayne

hearsay, evidenceHearsay is often colloquially referred to as ‘he said, she said’.

It is a statement being used to prove the truthfulness of something based on the fact that somebody else said it was true.

If you were in the Family Court for instance, and you said “I saw John read his daughter a bedtime story”, this would not be hearsay because you are talking about something you personally witnessed.

However, if you said “Jenny said that John read his daughter a bedtime story”, it would be hearsay because you are trying to prove that John read his daughter a bedtime story based on the fact that Jenny told you it happened.

There are two types of hearsay; first-hand hearsay which is inadmissible unless it falls under an exception and second-hand hearsay which is always inadmissible.

First-hand hearsay is defined as “a representation that was made by a person who had personal knowledge of an asserted fact.” 1

In other words, first hand hearsay is when you’re talking about a statement, note or other communication where the person who communicated the information actually saw, heard or experienced what happened.

In our example scenario, the “asserted fact” is that John read a bedtime story to his daughter and the statement was made by Jenny who had “personal knowledge” since she was the one who saw John read the story. This is first-hand hearsay.

is-it-hearsay

Second-hand hearsay is more remote than this.

If you say to a family report writer “Jenny said that John read the bedtime story”, and the family report writer then gave evidence in court by saying “Someone told me that Jenny said that John read to his daughter”, this would be second-hand hearsay.

This is because the “representation” is not what Jenny said to you, but what you said to the family report writer. Since you didn’t have “personal knowledge” of whether or not John read to his daughter, it is second-hand hearsay.

Why is it generally inadmissible?

The courts favour ‘original evidence’, which means hearing what happened from people who actually experienced the event in question. The idea behind this is that it is the closest the judge can get to actually experiencing what happened and the other side has the opportunity to cross-examine the witness and the evidence they are presenting.

For example, if you were a witness in the Federal Circuit Court and you said “I saw him read to his daughter”, that would be original evidence because it is what you saw and you are able to be cross-examined. Your statement can be used as evidence that the father did indeed read a bedtime story to his child.

If you were in court and said “My friend Jenny said that she saw him read to his daughter”, this would be hearsay evidence because you didn’t personally witness the father reading to his child.

Your statement in this case cannot be used to prove that the father read a story to his child. In a situation where this is the case, it would likely be Jenny that is asked to be a witness in court since she is the one who claims to have actually witnessed the father reading to his child.

What are the exceptions to admissibility?

  1. When it is being used for another purpose. 2 Hearsay is generally inadmissible to prove that the asserted fact was true. So we can’t use what Jenny said to you to prove that John read to his daughter. However, your statement might be admissible for another purpose (e.g. a defamation claim) not to prove that John read to his daughter, but to prove that Jenny said that John read to his daughter.
  2. If the person who made the claim is unavailable. This applies to both civil proceedings 3 and criminal proceedings. 4 Unavailable to give evidence is defined to include that all reasonable steps have been taken to attempt to find the person and secure their attendance without success.
  3. If calling the person who had personal knowledge would cause undue expense or delay. This applies to civil proceedings 5
  4. If the maker of the representation is unavailable for criminal proceedings. In this situation, the hearsay evidence must be presented by someone who saw, heard or otherwise perceived the representation being made and the court must have reason to believe that the circumstances of the case make it highly probably that the representation is reliable. 6
  5. If the representation is about the person’s health, feelings, sensations, intention, knowledge or state of mind. 7
  1. Evidence Act s62 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s62.html.
  2. Evidence Act s60 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s60.html.
  3. Evidence Act s63 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s63.html.
  4. Evidence Act s65 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s65.html.
  5. Evidence Act s64 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s64.html. 
  6. Evidence Act s65 http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s64.html. 
  7. Evidence Act s66A http://www.austlii.edu.au/au/legis/cth/consol_act/ea199580/s66a.html. 

How to File a Subpoena For Medical Records

Prajesh Shrestha

Online Legal Information Author at Family Law Express
'My name is Prajesh Shrestha and I am currently in my 3rd year of the Juris Doctor at the University of Sydney.Upon graduating, I am interested in becoming a legal practitioner. My areas of interest includes family law and conveyancing. I also have a strong and abiding interest in social justice and as such I am undertaking a legal internship at the Public Interest Advocacy Centre performing legal research, client interviews and drafting.

subpoena-medical-recordsIn family law disputes, it might be necessary to subpoena medical records of either the opposing party or a third party.

Seeking to issue a subpoena can be a complicated process, and is regulated by court rules of the relevant courts.

This ‘how to’ guide seeks to provide a step-by step guide to assist a self-represented litigant who want a court to issue a subpoena for medical records.

What is a subpoena?

A subpoena is a legal document issued by the court at the request of a party. A subpoena compels a person to produce documents or give evidence at a hearing or trial. There are 3 kinds of subpoena:

  1. Subpoena for production;
  2. Subpoena to give evidence; and
  3. Subpoena for production and to give evidence

This guide will deal mostly with the subpoena for production (1), though, it might be necessary to subpoena a medical expert to give evidence at a hearing.

What constitutes medical record?

Medical record means the histories, reports, diagnoses, prognoses, interpretations and other data or records, written or electronic, relating to the person’s medical condition, that are maintained by a physician, hospital or other provider of services or facilities for medical treatment1

Before you apply

It is important to note that the Family Court of Australia will not issue a subpoena for a self-represented litigant unless a registrar has given prior approval.2 In such a case, it is necessary to prepare a letter to support the subpoena.

How to apply

Step 1: Fill out the form You will need to complete the form titled Subpoena which is obtainable from Court registries or downloadable from the court websites:

  1. Family Court
  2. Federal Circuit Court
  3. Family Court of Western Australia

Note: Make sure that the form that you are filling out has been approved by the court in which you are litigating.

Sample-Subpoena-Medical

Download Sample Subpoenas

When completing the subpoena form, keep in mind:

■   –       A subpoena must identify the person to whom it is directed by name or by description or office or position. If you wish to subpoena an organisation, the subpoena should be directed to a person authorised to act on behalf of the organisation.

■   –       A subpoena for production must identify the specific documents to be produced. For example: “Any records, notes or reports or any other written material held by any facility of X Area Health Service, including but not limited to Hospital X relating to person X and relating to an alleged sexual assault on 1/01/2014.”

■   –       You cannot request the issue of a subpoena requiring the production of a document in the possession of the Court or any other Court. To seek a document in the possession of a Court you have to give written notice to the Court.

Step 2: File the Subpoena Once you have completed the subpoena, file it at the Court. You will need to file the original and at least two copies. You will need to ensure that you have enough copies for service on each other party including the independent children’s lawyer if one has been appointed. The Court will keep the original subpoena and give you back the copies sealed with the Court’s stamp.

Step 3: Serve the subpoena

3.1 Mode of service There are differing requirements for service in different jurisdictions.

  • –    Family Court of Australia: The Court requires that a person who requested the subpoena to be issued must arrange for it to be personally handed to the named person.
  • –    Federal Circuit Court of Australia: This court does not require subpoenas for production only to be personally handed to the named person. Subpoenas for production only may be served on the person to be subpoenaed by ordinary service. Subpoenas to give evidence or subpoenas to give evidence and produce documents must be personally handed3
  • –    Family Court of Western Australia: This court requires all subpoenas to be personally handed to the defendant.

3.2 Time of Service

  • –    In the Family Court, the issue of a subpoena for production must be served 7 days before the court date.4
  • –    In the Federal Circuit Court, a subpoena requiring production must be served at least 10 days before production under the subpoena is required.5

3.3 Brochure When serving the subpoena on the person subpoenaed, and other parties or interested person, you should also provide them with a copy of a brochure which gives the named person information about their rights and obligations. These brochures can be obtained from the relevant Court registries or downloadable from court websites.

3.4   Notice

  1. Family Court of Australia
  2. Federal Circuit Court of Australia
  3. Family Court of Western Australia 

3.5   Conduct Money At the time of service of a subpoena, conduct money should be provided to the named person. If you do not provide this money, the named person is not required to comply with the subpoena. For a  subpoena for production, you must give the named person conduct money sufficient to meet the reasonable expense of complying with the subpoena. This includes the cost of identifying the documents, copying and collating the documents required. Minimum conduct money for the production of documents will be at least $10 or other sum ordered by the court or agreed to by the parties.

Special Rules for subpoenas for production of documents

In some cases, all parties may be automatically permitted inspect documents produced under a subpoena without the need to attend a court date. 6 This can only occur if:

  • –    The subpoena is issued more than 21 days before the court date.
  • –    The named person and all other parties including the independent children’s lawyer are served with;
    • –    The subpoena;
    • –    A written notice that the person requesting the subpoena intends to rely on this provision at least 21 days before the court date.
    • –    You file an affidavit of such service at least seven days before the court date.
    • –    The named person produces the medical records more than seven days before the court date and does not object to any party inspecting the documents.
    • –    No other party to any party inspecting or copying the documents by ten days prior to the court date.

Note– in the Federal Circuit Court an inspecting party will not be able to photocopy medical records. 7

Objection to produce documents

A person may object to the production of the documents required by the subpoena for various reasons including:

  1. The documents are irrelevant;
  2. The documents are privileged;
  3. The terms of the subpoena are too broad.

Such a person may seek an order for a subpoena to be set aside.

Inspection of Medical Records

In the Federal Circuit Court, the person whose records have been produced may give notice to the Court that they want to inspect those medical records in order to decide if they wish to object to their inspection. 8

If they object to their records being inspected, they are allowed to file their notice of objection within 7 days after the date for production in the subpoena. In this case, you, or any other party or interested person, will not be permitted to inspect the medical records until the later of 7 days after the date for production, or the hearing and determination of any objection.

  1. Federal Circuit Court Rules 2001 (Commonwealth) s 15A.
  2. Family Law Rules 2004 (Commonwealth) Reg 15.18.
  3. See Division 6.3 of the Federal Circuit Court Rules 2001(Commonwealth) for more information on ordinary service.
  4. Family Law Rules2004 (Commonwealth) 15.28(1).
  5. Federal Circuit Court Rules(2(Commonwealth) Reg.15A.04(3).
  6. See Division 15.30 of the Family Law Rules2004 (Commonwealth).
  7. Federal Circuit Court Rules 2001 (Commonwealth) Reg 15A.13(2)(b).
  8. Federal Circuit Court Rules 2001Reg 15A.14.