A subpoena is a court order telling someone to produce something, give evidence or do both. Many people receive one without ever being a party to the case. It might arrive by post, by email or in person. Knowing what it asks and what your rights are makes the process far less stressful.
This guide uses information published by Legal Aid NSW. The general ideas are similar in other states, but court rules and forms vary. Always check the rules of the court named on the document. When in doubt, get advice before the due date passes.
What a subpoena is
According to Legal Aid NSW, a subpoena can only be issued when a case is before a court. It is a formal order, not a polite request. There are three kinds. A subpoena for production asks for documents or things. A subpoena to give evidence asks you to attend court, while a third kind asks for both.
Subpoenas turn up in all sorts of matters. Criminal trials, family cases and business disputes can all involve them. Our article on facing the threat of litigation in business explains how disputes reach court in the first place. Once a case is running, either side may ask the court to issue subpoenas to people who hold relevant evidence.
Read it carefully first
Start by working out exactly what the subpoena asks you to do. It may require you to attend court, hand over documents or both. The court fills in key dates on the document. These are the date it must be served by, the return date for documents and the hearing date.
Legal Aid NSW says you must comply unless you have a lawful excuse. Examples of a lawful excuse include being served late or not receiving conduct money. A subpoena must generally be served within a reasonable time and at least five days before the court date. The court can give permission for shorter notice.
Service can happen in several ways. A subpoena from an ordinary person can be served by email, by post to your home address or in person. If you refuse to accept it, the server can leave it in your presence after telling you what it is. Where you have a lawyer and both sides agree, it can be served through your lawyer.
Producing documents
A subpoena should only ask for documents that already exist. Legal Aid NSW says you are not required to create new documents or choose which ones to produce. If you post them, they must arrive at the court by the return date. Documents you produce are available to all parties in the case.
Businesses are often asked for records such as contracts, invoices or staff files. Clear record keeping helps here, and our article on the legal differences between contractors and employees shows why good staff records matter. Professional services firms can also be asked for files. Our piece on a dental practice sued for loss of chance shows how practice records can become evidence.
Documents are not kept forever. Legal Aid NSW explains that documents not made exhibits are returned after the original case finishes. Exhibits are returned once the appeal period has passed and any appeal is finished. The court keeps anything it has written on or marked.
Conduct money and expenses
If an ordinary person issues the subpoena, they must give you conduct money before you comply. This covers your reasonable costs, such as travel to and from court. It can also cover the cost of searching for, copying and sending documents. Cash, cheques, electronic transfers and prepaid travel such as petrol vouchers are all accepted.
If the money is not enough, contact the sender and ask them to fix it. If they refuse, Legal Aid NSW says you must raise an objection at court before handing over the documents. Subpoenas from NSW Police or the Office of the Director of Public Prosecutions work differently. You can claim expenses after complying, and lost income can only be claimed up to a limited amount.
Your employer does not have to pay you for time spent as a witness. You may be able to use leave entitlements such as annual leave instead. Expert witnesses are paid at different amounts. Our article on actuarial certificates in legal matters touches on how expert evidence is used.
Objecting to a subpoena
You can object to a subpoena on certain grounds. Legal Aid NSW groups them into several types. Some are technical, while others relate to the burden of complying or the kind of material asked for. The main grounds are:
- Technical problems such as late service, too little conduct money or irrelevant documents.
- Oppression, where complying would be too costly, slow or difficult, or the request is too vague.
- Abuse of process, such as asking for documents you cannot provide.
- Privilege, including client legal privilege and sexual assault communications privilege.
- Private information about you that has nothing to do with the case.
A subpoena is not oppressive just because it is inconvenient. Depending on the objection, you may need to send a notice to the court or attend in person. Check the court’s rules for forms and any filing fees. Counsellors asked for client records should get legal advice before producing anything.
What happens if you ignore it
Ignoring a subpoena without a lawful excuse can have serious results. You may be held in contempt of court. A warrant may be issued for your arrest, and you may be ordered to pay another party’s legal costs. If you cannot attend on the day, contact the person who issued the subpoena or the court as soon as possible.
Frequently asked questions
Can a subpoena be sent by email?
Yes, in New South Wales a subpoena from an ordinary person can be served by email. It can also be posted to your home address or handed to you. Subpoenas from police or public officers go to business addresses, email or are served in person. Rules can differ in other states.
Do I have to pay to comply?
Generally no. A private party must give you conduct money to cover reasonable costs before you comply. Police and prosecution subpoenas let you claim expenses afterwards. If the amount is too low, raise it with the sender first.
What if I was served at the last minute?
Legal Aid NSW says a subpoena must be served at least five days before the court date unless the court allows less. If you were served late without enough notice, you may not have to comply. Get advice quickly, as the court can approve shorter notice.
Where can I get help?
Legal Aid NSW suggests legal advice if you cannot or do not want to comply, or wish to object. The prosecution’s Witness Assistance Service supports prosecution witnesses in the District and Supreme Courts. Community legal centres can also help. Check the court’s website for its own guidance too.
This article is general information only about Australian law. Laws and court rules differ between states and territories and change over time. It is not legal advice. Please speak with a qualified lawyer about your situation.