Family Court of Western Australia

Subpoenas

A subpoena is a legal document issued by a court that compels a person to give evidence at a hearing or trial.

A subpoena can require a person to:

  • produce documents
  • give evidence, or
  • produce documents and give evidence.

You need to ask the Court to issue a subpoena. If your request is approved, you need to serve the subpoena, and the person will have to provide the evidence to the Court (or object to the subpoena).

This page describes the process for requesting a subpoena, and there is information on what to do if you receive a subpoena.

Why a subpoena is used

You can request a subpoena if a person:

  • refuses to give evidence or provide documents, or
  • is unable to provide documents without a subpoena. For example, banks and medical facilities often require a subpoena before releasing documents.

Before you request a subpoena, you should make all attempts to get the required document or evidence. This may include asking the person to provide the document or prepare a witness affidavit.

You should not request a subpoena for production and to give evidence if just producing the documents would be sufficient.

The subpoena process

To subpoena documents or evidence, you need to:

  • request permission to file the subpoena
  • file the subpoena with the Court, then
  • serve the subpoena

The person you have named in the subpoena will then have to comply with the subpoena, unless they object. The person will:

  • Attend the court and give evidence, and/or
  • Provide the documents to the Court. The documents are not provided to you. This is an important difference between subpoenas and the disclosure of documents.

If the subpoena was for the production of documents, there will now be a hearing to discuss:

  • the inspection or copying of documents
  • any objections to the subpoena
  • any objections to the inspection or copying of the subpoenaed documents
  • other subpoena-related orders, such as orders for the cost of complying with the subpoena.

There is often a hearing specifically dealing with subpoenas, but it may be discussed at a procedural hearing or the start of a hearing. The Judicial Officer has discretion to make procedural orders to appropriately manage your dispute.

Depending on the outcome of the subpoena hearing, you will be then able to inspect the documents.

Permission to file a subpoena

Before filing a subpoena, you need to request permission from the Court. You should usually request permission to file a subpoena at a court event.

In parenting cases, the Court won’t issue a subpoena unless you have permission from the Judicial Officer managing your case.

In property and financial cases the Court won’t issue a subpoena before the Conciliation Conference. If you want a subpoena to produce documents at trial, you should request permission at the Conciliation Conference.

For the hearing of an application seeking interim, procedural or other incidental orders, a party or an independent children’s lawyer can seek the issue of a subpoena to produce documents without permission from the Court.

Filing the subpoena

A party seeking the issue of a subpoena needs to file:

  • a subpoena (Form 14) – the original and:
    • a copy for each person named in the subpoena
    • a copy for each party in your case (including an Independent Children’s Lawyer, if appointed)
    • a copy for yourself
  • a letter to the Court advising:
    • whether the subpoena is in relation to property and financial issues, parenting issues or other issues.
    • whether permission to issue the subpoena has already been given, and if not, the reasons why leave should be granted.
    • why the subpoena should be issued on short notice (if applicable, see ‘notice to witnesses’ below for details)
  • the subpoena filing fee.

The Court will keep the original subpoena and give you back the copies, sealed with the Court’s stamp. You must keep one sealed copy for yourself and serve the other sealed copies.

Completing the Subpoena (Form 14)

See the subpoena kit for details on how to complete the Subpoena (Form 14).

Reasons for permission

When seeking permission to file a subpoena, the letter to the Court should explain:

  • why the evidence is relevant to your case
  • what, if any, attempts you have made to obtain the evidence from the other party or by other means
  • whether the person that you want to subpoena has consented to the subpoena being issued, and
  • any other matter which may assist in determining whether to grant leave for the issue of the subpoena.

Also if you are seeking a subpoena against a family dispute resolution practitioner or family counsellor, you also need to show that you have made reasonable efforts to discuss the subpoena with the person beforehand. See the self represented litigants handbook relating to Children's cases for details.

Notice to witnesses

Witnesses should be given as much notice as possible that they are required to provide evidence.

If you are requesting a subpoena that would be served and give less than 7 days notice (to give evidence) or 14 days notice (to produce documents), you will need to support your request with information to satisfy the Court that permission should still be given, despite the short notice. For example, if you have contacted the person or organisation to be subpoenaed and they have agreed they will be able to comply with the subpoena on short notice.

Serving a subpoena

If the court issues the subpoena, it must be promptly served on the person named in the subpoena.

You need to serve:

  • the Subpoena (Form 14)
  • conduct money (see below for details)
  • a copy of the brochure information for people who have been served with a subpoena.

A subpoena for production has to be served by ordinary service, and a subpoena to give evidence requires special service by hand.

Conduct money

You are required to pay conduct money to the person you subpoena, which needs to cover the cost of complying with the subpoena. If you do not provide this money, the person is not required to comply with the subpoena.

The minimum amount of conduct money is $25.

The cost of complying with a subpoena for production needs to cover costs such as identifying, copying and collating the documents required.

The cost of complying with a subpoena to give evidence (or give evidence and provide documents) needs to cover:

  • Return travel by public transport from the person’s place of work or residence to the Court, and
  • A reasonable allowance for accommodation and meals during the estimated time of personal attendance at the hearing or trial.

Note that a witness is also entitled to be paid a witness fee immediately after attending court in compliance with the subpoena. The witness fee is:

  • All witnesses – $75 for each day, or part of a day
  • Expert witnesses – an amount as the court allows for the preparation of a report and absence from their place of employment.

If a person incurs a substantial loss or expense greater than the set conduct money or witness fee, a court may order that the issuing party reimburse these expenses.

Additional requirements for certain organisations

There are additional requirements when serving a subpoena on the Department of Communities. You have to provide the department with certain information See the self represented litigants handbook on Children's cases for details.

Next steps

If the subpoena was for the production of documents, there will be a hearing to discuss issues related to the subpoena. If the subpoena was to give evidence, your matter will continue to the next hearing as scheduled.

After the subpoenaed documents are provided to the Court, you can apply to inspect or copy the documents.


Last updated: 23-Apr-2018

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