A subpoena is a legal document issued by the court at the request of a party to a proceeding. The court will issue a subpoena to compel a person to produce documents or give evidence at a hearing or trial. Hence, if a person has documents or can give evidence that is relevant to your case but they are denying you access then it can be produced by way of a subpoena.
A party can request a subpoena if a person refuses or is unable, of their own free will, to give evidence in the case or to provide documents to the court. A subpoena should not be served on a non-party to the proceeding unless the requesting party has made attempts to get the required document or evidence by asking the person to provide it.
If you do not comply with a subpoena, a court may issue a warrant for your arrest, and order you to pay any costs caused by your non-compliance. Hence, subpoenas are typically effective.
Subpoenas are issued for three purposes, which are either:
- for production;
- to give evidence; or
- for production and to give evidence.
Also, a subpoena for production and to give evidence should not be sought if production of the documents alone would be sufficient.
Notice to Produce
Indeed, requesting documents held by a party to the proceedings will require a Notice to Produce. This is different to a subpoena to produce. You can only serve a Notice to Produce to a party in the dispute. Typically, this is part of the discovery process. Unlike a subpoena, a Notice to Produce has the license to broadly request document, not needing to be as specific as subpoenas.
Issuing a Subpoena
A party can request the issue of a subpoena by filing the completed subpoena form, along with a statements of reasons, at the Court Registry. The Court Registry requires the payment of a filing fee. Once issued , it must be personally served in accordance with the Uniform Civil Procedure Rules.
Service of Subpoenas requiring Attendance
A subpoena requiring a person to attend court to give evidence must be served by hand to that person. A party should serve this type of subpoena at least 7 days before the required court appearance. Not serving a subpoena personally within the appropriate time frame means it does not have to complied with.
Service of Subpoenas Requiring Production
Subpoenas for production only do not have to be served personally. Ordinary service is sufficient. A party should serve this type of subpoena at least 10 days before the state that the subpoenaed person needs to produce the documents.
Additionally, the requesting party must notify the other parties to the proceeding and any other interested person. Ordinarily serving a copy of the subpoena reasonably before the date of production will satisfy notification.
Conduct Money
The requesting party must provide conduct money where the person subpoenaed is attending court to give evidence. The conduct money must sufficiently cover the person’s return travel. The amount of conduct money must be at least $25.
Additionally, if the subpoena requires a person to attend and give evidence then the court will order other payments for the expenses incurred in complying with the subpoena. For example, loss of income.
Setting Aside
The court does hold a general power to set aside a subpoena. The general power may be exercised for the following reasons:
- The request for documents is too general
- Insufficient conduct money has been provided
- The request is irrelevant to the proceedings / an abuse of power
- It would unreasonably difficult for the party to produce the documents
The subpoenaed party can apply to have the subpoena set aside on the grounds that it was improperly issued or is an abuse of process. The Registrar or a Judge will determine the outcome.
Access to Documents
It is important to note that the subpoenaed documents should not be sent to the requesting party. Firstly, the documents must be produced to the relevant court. The court will then direct the parties in regards to the removal, inspection and copying of the documents.
Another party is entitled to make a claim for privilege on documents, if the subpoenaed documents fall within that privilege relationship i.e client-legal-privilege. Consequently, the court would likely order first access to the party claiming the privilege. Otherwise, not allow for disclosure of the document at all. Where the documents contain confidential information, the court will make an order allowing that only the parties’ legal representatives inspect the documents.
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Phil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.
Raymond is a legal intern at OpenLegal, working with our legal content team. He is currently a penultimate student at the University of Technology Sydney, studying a Juris Doctor degree with an undergraduate Bachelor of Global Studies. He is particularly interested in Intellectual Property law and the increasing internationalisation of that area of business.
