Subpoenas

A subpoena is a legal document issued by a court.

A subpoena can require a person to:

You need to ask the Court for it to issue a subpoena. If your request is approved, you need to serve the subpoena, and the person will have to provide the documents to the Court and/or attend to give evidence (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 issue if a person:

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:

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

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

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.  If you make a request in writing you must provide certain information to the Court. See Case Management Guideline 72.

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.

Reasons for Permission

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

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.

Filing the subpoena

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

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).

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:

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:

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:

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 Service on Department of Communities

There are additional requirements when serving a subpoena on the Department of Communities.  You have to provide the Department with certain information.  See Case Management Guideline 72.1.

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: 14-Jun-2018

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