WHAT IS A SUBPOENA?

A subpoena is a court order that requires a person to either produce documents, attend court to give evidence, or both.

There are three main types of subpoenas in NSW:

Subpoena for production: this requires a person to produce to the court documents that may be used in evidence in legal proceedings. This does not require you to attend court in person. The requested documents can be posted to the court, provided they will arrive before the date required.
Subpoena to give evidence: this requires a person to attend and give evidence in court as part of legal proceedings.
Subpoena for production and to give evidence: this requires a person to both produce documents and attend the court to give evidence.

WHO CAN SUBPOENA ME?

Only people who are party to a case currently before the court can apply for a subpoena. In criminal law, this means either a defendant (or their legal representative) or the prosecutor (such as the Police) can apply for a subpoena.

DO I HAVE TO COMPLY WITH A SUBPOENA?

As a subpoena is a court order, you must comply with it unless you have a lawful reason not to.

The following are some reasons you can object to a subpoena:

The subpoena is not valid, as it does not comply with technical requirements.
The subpoena does not have a ‘legitimate forensic purpose’.
The subpoena is oppressive or an abuse of process.
The information requested is protected by privilege or other specific protections.

THE SUBPOENA DOES NOT COMPLY WITH TECHNICAL REQUIREMENTS

You may object to a subpoena as it does not comply with technical requirements. There are many technical requirements for subpoenas.

The Criminal Procedure Act and the Service and Execution of Process Act specify certain technical requirements for subpoenas in NSW. These requirements can vary depending on the circumstances in which the subpoena is issued. Some of these requirements include:

Time for service: court rules stipulate time limits for service of subpoenas, to ensure you have enough time to comply with the subpoena properly. The court registry will write on the subpoena the last date for service, a subpoena must be served on or before this date.
Conduct money: the party issuing the subpoena must provide you with ‘conduct money’ to cover reasonable costs incurred in complying with the subpoena. This includes expenses incurred in travelling to or from court, or other incidental expenses such as photocopying.

LEGITIMATE FORENSIC PURPOSE

Parties issuing subpoenas can only ask for documents which are relevant to issues in dispute in proceedings. A party cannot issue a subpoena as a mere fishing expedition. Courts have stipulated that this means the documents or evidence sought must have the capacity to materially assist the party issuing the subpoena.

THE SUBPOENA IS OPPRESSIVE OR AN ABUSE OF PROCESS

You may object to a subpoena if you are unable to produce the material requested, or if the request is so difficult to comply with that it is considered oppressive.

OBJECTIONS BASED ON PRIVILEGE OR OTHER PROTECTIONS

The law provides protection for certain types of information from being disclosed in court, this includes, among other things:

Where a professional confidential relationship exists (for example between a doctor, counsellor, social worker, lawyer and their client);
If a religious confessions privilege exists; or
The information is subject to public interest immunity.

WHAT WILL HAPPEN IF I DO NOT COMPLY WITH A SUBPOENA?

Refusing to attend and produce or give evidence in response to a subpoena, has been found to be contempt of court. If it is proved that the non-appearance is without just cause or a reasonable excuse, the court may issue a warrant to bring you before the court to give evidence.

If you have been served with a subpoena and are unsure what you are required to do, intend to object to the subpoena or have any legal questions, you should get some legal advice.

You can book a free initial consultation with one of our solicitors here;
Contact legal aid; or
Contact a community legal centre.