Subpoenas - General Information

A subpoena is a legal document issued by a court.

A subpoena can require a person (the ‘named person’) to:

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

You need to ask the Court for it to issue a subpoena. You can ask at a court hearing or by written request. If your request is approved, and the Court issues the subpoena, you (the ‘issuing party’) need to serve the subpoena on the named person, and they will have to provide the documents to the Court and/or attend to give evidence (unless they object to the subpoena).

This page describes the process for requesting a subpoena. There is also information on what to do if you receive a subpoena.

Why a subpoena is used

You can request a subpoena issue 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 documents or evidence. This may include asking the person to provide the documents 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 a person to give evidence, or both, you need to:

• request permission to file the subpoena
• if permission is granted, file the subpoena with the Court, then
• if it is issued by the Court, serve the subpoena.

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

• attend the court on the specified date and give evidence, or
• attend the court on the specified date and give evidence and produce documents, or
• provide the documents to the Court by the production date. The documents are not provided to you. This is an important difference between subpoenas and the disclosure of 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.  If you make a request in writing you must provide certain information to the Court. See Case Management Guideline 72.2.

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

In property and financial cases the Court will not usually issue a subpoena before the Conciliation Conference, or after the Readiness Hearing.

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.

Reasons for Permission

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

• why the evidence (including in the documents) is relevant to your case
• what, if any, attempts you have made to obtain the evidence or documents 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.

Additional requirements for certain organisations

A subpoena against:-

(a)  a family dispute resolution practitioner

(b)  a family counsellor

(c)  employees of Anglicare, Centrecare or Relationships Australia

will not be issued unless certain requirements are met.  See Practice Direction No. 2 of 2011 for details.

There are additional requirements when requesting a subpoena issue to the Department of Communities. You have to provide the Court with certain information before the Court will permit a subpoena to issue.  See Practice Direction No. 1 of 2014 for details.

Subpoena to produce documents - Inspection and Copying

The Court will allocate a production date when the subpoena is filed. The production date will be no earlier than 21 days after filing.

The documents must be produced to the court by the named person on or before this date. On or after the production date, the issuing party must complete, file and serve a ‘Notice of Request to Inspect’, confirming that the subpoena has been served on the named person, all parties and any interested person, and that no objection has been received by them.

The named person, an interested person or an independent children's lawyer can object, and the Court can order that:

• the subpoena be set aside in whole or in part; and
• the issuing party pay the loss or expense relating to the attendance of the named person or production of a document in compliance with the subpoena.

When you file the Notice of Request to Inspect, you can make an appointment to inspect the documents. Your appointment will be no earlier than 3 business days after the production date. The Court will confirm if there has been any objection to the production, inspection or copying of the documents.

If no objection has been received, you will be allowed to inspect the documents. You will be allowed to copy documents other than police or criminal records, medical records or documents from the Department of Communities.

Notice of Request to Inspect

This notice must be completed, filed and served by the party who sought the subpoena be issued. It cannot be filed before the production date. The notice requires you to confirm you have served the subpoena on the named person and all other parties, and that you have not received any objection to the production, inspection or copying of the documents.

Medical Information

If a person’s medical records are sought pursuant to a subpoena, that person may, before the production date, request to inspect their medical records to see whether they wish to object to any other party inspecting or copying their records. If they object, they must file and serve a Part F Notice of objection - subpoena. If an objection is filed, the subpoena is referred to Court for a determination of the objection. Any objection must be filed within 7 days of the production date.

Last updated: 9-May-2022

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