Family Court of Western Australia

Receiving a Subpoena

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

If you have received a subpoena, you need to comply with it unless the subpoena was not correctly served or you were not provided with conduct money.

If you wish to object to the subpoena, you must still attend court so your objection will be heard. See objecting to a subpoena below.

Complying with a subpoena

A subpoena may require you to:

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

Subpoena to give evidence

If you have been served with a subpoena to give evidence, you need to attend Court on the date specified in Part C of the subpoena.

Subpoena to produce documents

If you have been served with a subpoena to produce documents you can:

  • attend court on the date specified in Part E of the subpoena, or
  • provide the documents to the Subpoena Officer at least 2 days before the date specified in the subpoena. If you do this, you will not have to appear in Court. See providing documents to the subpoena officer below.

You will usually attend court only if you are objecting to the subpoena or seeking some other order, such as an order to be reimbursed for the expenses of complying with the subpoena.

Subpoena to produce documents and give evidence

If you have been served with a subpoena to give evidence and produce documents, you need to:

  • attend Court on the date specified in Part D of the subpoena, and
  • produce the documents listed in the schedule to the subpoena.

Providing documents to the Subpoena Officer

To produce documents to the Subpoena Officer, you need to provide the following documents to the registry in person or by post:

  • the documents specified in the subpoena
  • a copy of the subpoena
  • the notice from named person
  • if you want to provide copies instead of the original documents, also provide an Affidavit – producing documents under subpoena.

Important - Do not send the documents to the person who asked for the subpoena to be issued. The documents must be produced to the Court.

Objecting to a subpoena

You can object to:

  • the subpoena to produce documents, or
  • the parties inspecting or copying some or all of the documents

Objecting to the subpoena

You can object to the producing of documents for reasons such as:

  • the documents requested are irrelevant
  • the documents are privileged (for example, documents which came into existence as a result of a lawyer/client relationship), or
  • the terms of the subpoena are too broad.

These objections can lead to an order setting aside all or part of the subpoena. The Court may also order that a party pay for any loss or expense relating to your attendance and production of the documents.

Objecting to the parties inspecting or copying the documents

If you produce the documents to the Court, the parties and the Independent Children’s Lawyer (if any) may be able to inspect and copy the documents unless you object to this.

Even if you have no objection to the documents being inspected or copied, a party or the Independent Children’s Lawyer may object to this. If so, they must advise you of this in writing. However, unless you object, you do not need to do anything else.

How to object

If you wish to object, you can:

  • complete the Notice of objection at Part F of the Subpoena (Form 14),
  • provide a copy to the parties at least 10 days before the return date, and
  • attend Court on that date specified at the top of page 1 of the subpoena, where the Court will consider whether to allow your objection.

You should bring the documents to the hearing in case it is necessary for the Court to view the documents in order to decide on your objection.

Return of subpoenaed documents

When you produce the subpoenaed documents to the Court, you will also provide the notice from named person. This form authorises the Court to destroy the documents if you do not need the documents returned to you.

The Court will securely destroy the documents if it is authorised to do so, otherwise the documents will be returned to you no less than 42 days after the final orders in the application or appeal.

Conduct money

The party who asks the Court to issue the subpoena needs to pay conduct money to the person required to comply with it. See the subpoena page for details of the set amounts.

There is a minimum set amount of conduct money, which is intended to cover the reasonable expenses of complying with the subpoena. For example, the costs of:

  • attending court to give evidence
  • identifying, copying and collating subpoenaed documents.

If you will incur substantial loss or expense in properly complying with the subpoena, you may apply to the Court for an order that the party who requested the subpoena pay you an amount in addition to the conduct money. If you anticipate that you will incur a substantial loss or expense, you need to notify to the party that requested the subpoena before complying with the subpoena, and include an estimate of the loss or expense.

Consequences for not complying with a subpoena

If you don't comply with a subpoena, the Court can:

  • issue a warrant for your arrest, and
  • order you to pay any costs caused by your non‑compliance

The Court may also find you guilty of contempt of court.

Last updated: 23-Apr-2018

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