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Subpoenas - Step by step guide 

Step-by-step guide icon  Subpoenas - Step by step guide

Step 1: Ask for permission (leave) at the Pre Tri​​al Review

In the Small Claims Division, you cannot have a subpoena issued unless the registrar has granted leave to do this at the Pre Trial Review. If you might need a subpoena to get evidence for your case, you need to think about this before the Pre Trial Review. At the Pre Trial Review you can explain to the registrar why you need a subpoena and ask the registrar for permission.

There are three different kinds of subpoena (pronounced supeena):

  1. to provide documents to the court (Subpoena to Produce)
  2. to attend court and give evidence at a hearing (Subpoena to Attend to Give Evidence)
  3. to attend court and give evidence at a hearing, and to provide documents

Step 2: Fill out​ the subpoena form

If the court grants leave to issue a subpoena, you will need to complete one of the forms listed below:

  • Form 25 - Subpoena to attend to give evidence
  • Form 26A - Subpoena to produce
  • Form 27A - Subpoena to attend to give evidence and to produce

You can get copies of forms from:

The subpoena must be addressed to a person. If you wish to get documents from an organisation or a company you will need to address the subpoena to the 'Proper Officer' in that company or organisation. You should contact the organisation to make sure the address of their registered office is correct.

If the subpoena is for the production of documents, you need to clearly describe which document or documents have to be provided. You should get legal advice if you are not sure how to do this.

For more information see:

Instructions for filling out Subpoena to Attend to Give Evidence

Sample Subpoena to Attend to Give Evidence

Instructions for filling out Subpoena to Produce

Sample Subpoena to Produce 

Step 3: File th​e subpoena

When you have filled out the subpoena form, you need to make three copies of the subpoena and send or take it to the court along with the filing fee. The filing fee is $100.00 for an individual and $200.00 for a corporation (as at 1 July 2016). Check the current fees.

Alert Icon  The court will fill in the date the documents have to be provided and/or the date to attend the hearing. The court will also fill in the last date for serving the subpoena.

Step 4: Serve the s​ubpoena

The subpoena must be personally served on the person it is addressed to, by handing it to them (or to someone at their residential or business address who is over the age of 16 years) or leaving it in their presence with an explanation of what it is. It can also be served by post to the residential or business address of the person being subpoenaed, if it is a Subpoena to Produce. It must be served on or before the last date for service that the court will write on the subpoena.

You can pay for a professional process server to serve the subpoena or arrange it yourself.

When you serve the subpoena you must also give the person or organisation you are serving with the subpoena some money, called 'conduct money'. The amount to be given is not specified but must be reasonable. It must be enough to cover the cost of travelling to and from the court or the cost of looking for, photocopying and sending the documents to the court. Many organisations will have a set amount for conduct money. You should contact the organisation before serving the subpoena to make sure you provide enough conduct money.

If you are serving a subpoena on a witness to attend court and give evidence, you will also have to pay their expenses (such as any loss of income caused by attending court) up front. If you win your case, you may claim for witness expenses, which would be added to the amount of any judgment in your favour.

Alert Icon  A copy of the subpoena must also be served on the other party in the case. This can be done by personal service, or by leaving it with a person over the age of 16 years at the home or business of the party, or by posting it to the party's address for service.

For an interactive guide to serving court documents, see Interactive Guides - Debt small claims.

Step 5: Fill out and​ sign affidavit of service

If a professional process server serves the subpoena, they will also prepare an affidavit of service.

If you served the subpoena yourself or arranged for a friend or relative to do it, the person who served the subpoena needs to fill out and sign an affidavit of service.

For more information, see Instructions for filling out an Affidavit of Service, Sample Affidavit of Service 1 and Sample Affidavit of Service 2.

Car icon  If the claim is about a car accident and need to fill out and sign an Affidavit of Service, see Instructions for filling out Affidavit of Service - car accidents, Sample Affidavit of Service 1 - car accidents and Sample Affidavit of Service 2 - car accidents.        

Step 6: Go to cou​rt for the 'return of subpoena' (Subpoena to Produce)

The return of subpoena date is written on the subpoena. The return of subpoena date is the day the court told the person or organisation in the subpoena to bring the documents to court. The documents can also be posted to the court but they have to arrive by the return of subpoena date.

On the return of subpoena date you should go to court and ask the registrar for leave (permission) to look at and/or make copies of the documents. You can't take the produced documents away from the court.

Hint icon  If the court has given you leave to look at and/or copy the documents you can do this on the return of subpoena date or come back on another day. You should check with the court how much they will charge to make photocopies of the documents.

At the Downing Centre Local Court, there is a special court list for return of subpoenas. At other local courts the return of subpoena may happen at a second Pre Trial Review or on the date of the hearing.

If the person or organisation that has been served with the subpoena can't find the documents you are asking for, they will need to tell the court that they haven't been able to find the documents.

Alert Icon  The person the subpoena is addressed to may object to providing the documents or attending to give evidence. They can make an application to the court asking for the subpoena to be set aside. If this happens, you will be served with a copy of the application and get a chance to explain to the court why you need the documents and/or witness and how they are relevant to the case. You should get legal advice if someone objects to a subpoena you have served on them.

Alert Icon  There are penalties for not complying with a subpoena.