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Subpoenas can be used to obtain evidence from other parties which may not be readily available to the issuing party. This article will discuss what a subpoena is and the formal requirements of a subpoena. It will also discuss compliance with a subpoena and the grounds for setting aside a subpoena.
A. What is a subpoena?
Rule 33.1 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) defines a subpoena as being an order requiring a person or party (ie the addressee) to give or produce evidence. There are three different types of subpoenas that can be issued:
• Subpoena to give evidence – where the addressee is required to attend court and give evidence;
• Subpoena to produce – where the addressee is required to produce a copy of the subpoena and the specific document or thing ordered to be produced; and
• Subpoena to give and produce evidence – where the addressee is required to both give evidence at court and produce a document or thing.
B. Form of subpoena
There are formal requirements of a subpoena that must be complied with to ensure that they are in the approved form.1 Pursuant to rule 33.3, these requirements include:
• The subpoena must not be addressed to more than one person. As such, the issuing party will need to prepare and file a separate subpoena document for each party. For example, if the issuing party wishes to issue a subpoena to produce to three different banks, then three subpoena documents need to be prepared (one for each bank).
• Unless ordered otherwise, the subpoena must identify the addressee (ie by name or position). If the addressee is a corporation, then a person holding the position identified in the subpoena is to comply with the subpoena.
• A subpoena to give evidence must specify the:
• Date for attendance;
• Time for attendance; and
• Place for attendance.
• A subpoena to produce evidence must:
• Identify the document / thing to be produced (eg bank records); and
• Specify the date, time and place for production of the document or thing. The place for production would either be the court or another person/place authorised by the court to accept the evidence.
C. Filing and serving the subpoena
A subpoena becomes an order of the court once it has been:
• Filed in court; and
• Served personally on the addressee.2
The subpoena will specify the last date by which the subpoena must be served to the addressee. The last date for service is either:
• Five days before the earliest date on which the addressee is required to comply with the subpoena; or
• An earlier / later date that has been fixed by the court.3
Once the subpoena has been served on the addressee, the issuing party is then required to serve a copy of the subpoena to each active party involved in the case.4
D. Compliance with the subpoena
The addressee must comply with the requirements of the subpoena. However, compliance is not required unless the subpoena has been served on the addressee on or before the last date of service.5 An exception to this rule is when the addressee already has knowledge of the subpoena. If the addressee has actual knowledge of the subpoena and its requirements (by the last date for service), then the addressee needs to comply with subpoena and its requirements even if service has not occurred.6
Regarding a subpoena to give evidence, an addressee does not need to comply with the requirement of attending court to give evidence unless the issuing party has given them ‘conduct money’, being an appropriate sum to cover the addressee’s costs of attending court (eg travel expenses).7 The conduct money must be given at a reasonable time before the date that the addressee is required to give evidence.
Comparatively, an addressee must comply with a subpoena to produce either:
• By attending court at the date, time and place specified and producing the document or thing at court; or
• By delivering the subpoena and the document or thing to the Court Registrar at least two days before the specified date for production.8
Unless specifically stated in the subpoena, an addressee may produce a copy of any document required by the subpoena rather than the original.
D.1. Costs and expenses of compliance
The issuing party may be ordered by the court to pay the addressee any reasonable loss or expenses that they may have incurred in complying with the subpoena.9 An amount is generally fixed by the court and is separate from any conduct money or witness expenses that may be paid to the addressee.
E. Setting aside a subpoena
Failing to comply with a subpoena (without a lawful excuse) is considered to be contempt of court.10 However, a party or any person with a sufficient interest may apply to have the subpoena set aside on the ground11 that it is an abuse of process. Setting aside a subpoena to produce documents on the grounds of an abuse of process can be claimed using one or more of these reasons:
• The subpoena is being used as a substitute for discovery – the court has held that subpoenas should not be used as a ‘fishing exercise’ to discover evidence;12
• The subpoena is oppressive – a subpoena may be oppressive if it has insufficient particularisation (ie not specific enough) or is too onerous;13
• The subpoena has an improper purpose – a subpoena must not be used for some purpose not related to the case (eg for private gain);
• The documents specified for production in the subpoena have a lack of relevance to the proceedings;14 and
• The subpoena does not have a legitimate forensic purpose – the issuing party must specify the legitimate forensic purpose for which production of the documents is sought.
Comasters Law Firm can help clients issue subpoenas or have subpoenas set aside.
1 Uniform Civil Procedure Rules 2005 (NSW) r 33.3(1) (‘UCPR’).
2 Ibid r 33.5(1).
3 Ibid r 33.5(1).
4 Ibid r 33.5(2).
5 Ibid r 33.6(2).
7 Ibid r 33.6(1).
8 Ibid r 33.6(4).
9 Ibid r 33.11(1).
10 Ibid r 33.12(1).
11 Ibid r 33.4.
12 NSW Commissioner of Police v Tuxford  NSWCA 139.
14 Trade Practices Commission v Arnotts Limited (No 2) (1989) 21 FCR 306.
© Comasters August 2020.
Important: This is not advice. Clients should not act solely on the basis of the material contained in this paper. Our formal advice should be sought before acting on any aspect of the above information.