​​Step 1: Ask for leave (permission) at the pre-trial review 

In the Small Claims Division of the Local Court, you cannot file and serve a subpoena unless the court has given you leave (permission) to do this. 

If you want a subpoena, you should ask for leave at the pre-trial review. You will need to explain why you need the subpoena. If you are not sure whether you need a subpoena you should get legal advice.

Step 2: Get the subpoena form 

If the court gives you leave to file and serve a subpoena, you will need to complete one of the forms listed below depending on the type of subpoena you need: 

• ​​​Form 25 - Subpoena to attend to give evidence
• Form 26A - Subpoena to produce with subpoena notice and declaration
• Form 27A - Subpoena to give evidence and produce with subpoena notice and declaration.

You can get copies of the forms from: 

• ​​​any Local C​ourt​ or
• the Uniform Civil Procedure Rul​es (UCPR) website.

You can also complete and file this form online using the NSW Online Re​gistry​. 

Step 3: Fill out the subpoena form  

The subpoena form must be addressed to a person. If you want to get documents from an organisation or a company you will need to use the words 'To the Proper Officer' followed by the name and registered address of the organisation or company.

You can contact the organisation or company to find out their registered address. For more information on finding a company's registered address, see Finding and naming the defendant.

If the subpoena is for the production of documents, you need to clearly describe which document or documents you are asking for. 

Instructions: 

• ​Instructions for filling out a subpoena to produce
  

• Instructions for filling out a subpoena to attend to give evidence

​Samples:

• ​​Subpoena to produce
• Subpoena to attend to give evidence

Step 4: File the subpoena form 

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.

The filing fee is $112.00 for an individual and $224.00 for a corporation (as at 1 July 2022). 

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

Step 5: Consider whether a short service order is appropriate

Step 6: Serve the subpoena form

A subpoena form must be served on or before the last date for service that the court has written on the subpoena.

The subpoena form must be personally served on the person it is addressed to. You can do this by:

• ​​handing it to them or to someone at their residential or business address who is over the age of 16, or
• leaving it with them and telling them what it is, or
• posting it to the residential or business address of the person being subpoenaed, if it is a subpoena to produce. 

​You can pay for a professional process server to serve the subpoena form or do 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 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 form to make sure you provide enough conduct money. 

A copy of the subpoena must also be served on the defendant. It should be served at least five days before the date specified in the subpoena. This can be done by:

• ​handing it to them, or
• leaving it with a person over the age of 16 at the home or business of the defendant, or
• posting it to the defendant's address for service.

If you win your case, you may claim for witness expenses, which would be added to the amount of any judgment in your favour.

Step 7: Fill out an affidavit of service form

It may be necessary at some stage to show evidence that the subpoena was served. To do this you will need an affidavit of service form, which is written and sworn evidence about how the subpoena was served. If a professional process server serves the subpoena, they should prepare an affidavit of service form. 

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

Instructions: ​Instructions for filling out an affidavit o​f service​

Step 8: Go to court 

If you have issued a subpoena to produce you may need to go to court on the 'return of subpoena date'. This is the date 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.

The return of subpoena date is written on the subpoena by the court.

On the return of subpoena date you should:

• ​​​go to court
• check the court lists to see which courtroom the return of subpoena is in
• go into the courtroom and wait for your case to be called
• when your case is called, ask the registrar or magistrate for leave to look at and/or make copies of the documents. 

You can't take the documents away from the court. You should check with the court about how much they will charge to make photocopies. The person or organisation that has been served with the subpoena may be able to submit the subpoenaed items electronically, by the return of subpoena date. You may then be able to request access to the subpoenaed items to download and view them via the NSW Online Registry website. This option removes the need for you to attend court to photocopy subpoenaed items.  

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 have not been able to find the documents. 

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

There are penalties for not complying with a subpoena.