If you have been served with a Subpoena to Attend to Give
Evidence you might be unsure as to what your obligations are.
In New South Wales, failure to comply with a subpoena without
lawful excuse may be considered contempt of court, and can lead to
your arrest under section 97 of the Civil Procedure Act
It is worth carefully looking at the subpoena to ensure that the
serving party has complied with the necessary requirements. For
example, in New South Wales, unless the Court orders otherwise
(pursuant to rule 33.3 of the Uniform Civil Procedure Rules
2005 (NSW)), the subpoena must be served on you 5 clear days
before the day that you are required to attend Court. Further
notice may be required for witnesses who are interstate. The
subpoena must also specify the date, time and place for you to
attend. There may be a continuing requirement to appear on days
following the date specified in the subpoena.
When issued with the subpoena, you should be provided with
"conduct money" to meet your reasonable expenses of
attending Court. Sometimes a nominal amount in the order of $30.00
is provided with the subpoena. For the purposes of a Subpoena to
Attend and Give Evidence, conduct money means "a sum of
money or its equivalent, such as pre-paid travel, sufficient to
meet the reasonable expenses of the addressee of attending court as
required by the subpoena and returning after so
attending" - see rule 33.1 of the Uniform Civil Procedure
Rules 2005 (NSW).
Conduct money of $30.00 may not be sufficient to meet your
reasonable expenses to attend Court. It might be necessary for you
to travel some distance to attend Court and you may require
accommodation. Your attendance may also result in lost wages. If
you are not a party to the proceedings you may be able to claim
these additional costs as reasonable expenses incurred in complying
with the subpoena. In addition, it may also be possible for you to
claim legal expenses as being a reasonable expense in complying
with the subpoena, particularly if there are questions of
privilege, confidentiality or commercial sensitivity surrounding
the issues you are likely to be questioned on in Court.
If you wish to make a claim for your additional reasonable
expenses, it is best to write to the party (usually their
solicitors) who served the subpoena outlining what your anticipated
costs of compliance with the subpoena are likely to be. It is
important to bear in mind that even if you are unable to reach an
agreement on the amount of costs with the party who served the
subpoena on you, you should still comply with the subpoena. If you
are unable to fully quantify your reasonable expenses it may be
beneficial to obtain from the issuing party a written undertaking
that you will be reimbursed your reasonable expenses of complying
with the Subpoena. If you are unable to reach an agreement with the
issuing party as to what your reasonable expenses are, the
appropriate course may be to make an application in accordance with
rule 33.11 of the Uniform Civil Procedure Rules 2005 (NSW)
seeking payment of the disputed amount.
Failing to properly respond to a Subpoena to Attend to Give
Evidence may have serious consequences and it is important that you
understand your rights and obligations. If you are unsure what to
do after a Subpoena to Attend to Give Evidence has been served on
you, it is important that you seek legal advice.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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