Australia: What do I need to know about subpoenas?

Subpoenas are formal court documents that are served on a non-party to court proceedings. The purpose of a subpoena is to either require that a non-party: 

• produce certain documents; 
• attend a hearing to give oral evidence; or 
• a combination of both. 

There are specific steps that a party must take to issue a subpoena, and there can be serious consequences for failing to comply with one. This article sets out some useful tips about subpoenas, including how to issue a subpoena and how to respond to one. 

Subpoena to Produce Documents 

Subpoenas can only be served where there are proceedings on foot in court. Additionally, you can only serve a subpoena on a non-party to proceedings, for example, a third party person or entity which may hold documents that are relevant to the proceedings. 

You cannot use a subpoena as a ‘fishing expedition'. This means that you cannot serve a subpoena on a third party unless you have some basis for believing that party may hold documents relevant to the proceedings. A subpoena must also be clear, concise and specific as to what documents it requires a party to produce. A subpoena that is too broad or onerous can be set aside. 

How is a Subpoena Different to a Notice to Produce or Discovery?

A subpoena can only be served on a non-party. Whereas you use a notice to produce when one of the parties to the proceedings requests certain documents from another party in the proceedings.

Discovery is the process that requires parties to proceedings to produce to each other documents which may be relevant in the proceedings. Discovery ordinarily includes a wider scope than subpoenas and notices to produce. Therefore, it can result in producing a far greater number of documents.

Subpoena to Give Evidence

If you want to call a person who is not a party to the proceeding to give evidence at the hearing, you must issue a subpoena to give evidence to that person. The subpoena must specify the: 

• time and date at which the hearing will occur; and 
• when they are required to attend court to give evidence.

Issuing Subpoenas

A party issuing a subpoena must file the prescribed document in the relevant court. At the time of filing, the party must also pay a filing fee to the Court Registry. Usually, parties wanting to issue a subpoena must seek leave from the court to do so. This means they have to seek the court's permission to file the subpoena. 

Service of Subpoenas

Once a party files the subpoena with the court, they must personally serve the subpoena on the named addressee by the time set by the court on the subpoena form. The party must also provide a copy of the filed subpoena to all other parties to the proceedings. Importantly, if the recipient of a subpoena is outside the state where it was issued, you must take additional steps to effect service properly and in person.

Conduct Money

Someone that has received a subpoena is not required to comply unless they are provided with ‘conduct money'. This is money that a party gives to cover the reasonable expense of complying with the subpoena. Reasonable costs of compliance with subpoenas to produce documents will include searching for, reviewing, collating and copying the relevant documents. If the subpoena requires you to attend court to give evidence, reasonable expenses will include your travel expenses and, in some circumstances, compensation for your time.

Access to Documents

Suppose the subpoena requires the production of documents. In that case, once a party produces those documents to the court, the court will give directions to the parties in respect of the removal, inspection and copying of the documents. In most circumstances, the court will make ‘general access' orders, meaning that the parties to the proceedings can both access the documents at the same time.

However, a party to the proceeding is entitled to make a claim for privilege over the documents. Privileged documents are those that another party cannot inspect. For example, correspondence between a party and their solicitor will be considered privileged (covered by client-legal privilege). In those circumstances, the court is likely to order ‘first access' to the party claiming the privilege for seven days. This means they can remove any privileged documents before the other party inspects the documents. 

Power to Set Aside Subpoenas

The court has a general power to set aside a subpoena. The court, at the request of the other party in the proceeding, or the non-party receiving the subpoena, may set aside a subpoena for the following reasons:

• the request for documents is too general;
• the request is too onerous on the non-party that must produce the documents;
• insufficient conduct money has been provided; or
• the request is considered an abuse of power. For example, a party is requesting documents for a purpose other than obtaining evidence that is relevant to the proceedings.

Consequences of Non-Compliance With Subpoenas

Compliance is important when it comes to a subpoena that somebody serves you. Failure to comply with the subpoena can result in the court issuing a warrant for your arrest. Additionally, the court may find you guilty of contempt of court. The court may also order that you pay any costs associated with your failure to comply.

Key Takeaways

A subpoena is a formal court document served on a non-party to court proceedings. It may require a party to produce certain documents or attend a hearing to give evidence. It is different to a notice to produce and discovery because you can only serve it on a non-party. If you have received a subpoena and believe that the request for documents is too onerous, or you do not believe that you have been provided with sufficient conduct money, you should seek legal advice in respect of your obligations. If you have any questions about subpoenas, contact LegalVision's dispute resolution lawyers on 1800 534 315 or fill out the form on this page.