Step by step guide: Subpoenas
If you need documents or other evidence for your case, or you want to make sure that a witness is going to come to court, you can issue a subpoena (pronounced supeena).
Step 1: Get the subpoena form
You need one form for each subpoena. There are three different forms to choose from:
- Subpoena for Production (for documents or other evidence)
- Subpoena to Give Evidence (for making sure a witness comes to the hearing)
- Subpoena for Production and to Give Evidence (for making sure the witness comes to the hearing and produces documents or other evidence at the hearing).
You can get copies of the forms from:
Step 2: Fill out the subpoena form
You should address the subpoena to the witness you want to attend or the person you want to produce documents.
If you want to get documents from an organisation or company, you need to:
- address the subpoena to the 'Proper Officer' in that company or organisation. If you don't know their name you can just write 'The Proper Officer'.
- contact the organisation to make sure the address of their registered office is correct
- clearly describe which document or documents have to be provided.
Instructions:
Instructions for filling out a Subpoena for production and to give evidence
Sample:
Subpoena for production and to give evidence
You can use the instructions and samples provided for any of the subpoenas, and adapt it to your situation. For example, you don't need to include the 'Schedule' if you are only asking the person to attend court and give evidence.
Step 3: File the subpoena
When you have filled out the subpoena form, you should make three copies of the subpoena and send or take it to the court registry. There is no filing fee for a subpoena in criminal matters.
The court will choose a date the documents have to be provided to the court if it is a subpoena for production. This is called 'return of subpoena date'. They will write this date on the form. The court will also fill in the last date for serving the subpoena. For any other subpoena, the date the witness will have to attend will usually be the hearing date.
If the magistrate set a reply date for your case, you can ask the court registry to make the return of subpoena date on the same day. This will save you having to come back to court twice.
Step 4: Consider whether a short service order is appropriate
Sometimes, you might need to apply for an extension of time for the service of a subpoena. For example, you find out about new evidence a few days before your hearing date and you don’t have time to comply with the standard rules.
A court may order short service if it is satisfied that it is in the interests of justice to do so. Any order made for short service must be attached to the subpoena and served.
If you are considering applying for an order for short service of a subpoena, you should get legal advice.
To apply for an order for short service, you will need a Notice of Motion form and an affidavit in support of your application.
You can get copies of forms from:
Sample: Notice of Motion for short service of a subpoena
Sample: Affidavit in support of short service
Step 5: Serve the subpoena
The subpoena must be served on (given to) the person it is addressed to. The court will write the last date for service on the subpoena when you file it. It will be at least 5 days before the hearing date. The subpoena must be served on or before that date.
You can pay for a professional process server to serve the subpoena or do it yourself. There are many different ways that you can serve the subpoena. You can hand it to the person it is addressed to, email it to them, post or fax it to their residential address. If you are not sure how to serve the subpoena you should get
legal advice.
When you serve the subpoena you must also give the person or organisation you are serving some money, called 'conduct money'. This money covers expenses such as the cost of the witness travelling to court. There is no specific amount but it must be reasonable. Most 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.
The amount to be given for a Subpoena to Give Evidence should be at least $50.05 (as at July 2014).
Step 6: Fill out the Affidavit of Service
Whether 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 the Affidavit of Service included on the subpoena, setting out when and how the subpoena was served. If a professional process server served the subpoena, they should fill this out.
Step 7: Go to court for the return of subpoena
The return of subpoena date, which is written on the subpoena, is the day the court has ordered the person or organisation in the subpoena to:
- bring the documents to court and/or
- attend to give evidence.
If it is a Subpoena for Production, 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.
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.
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.
The person or organisation the subpoena is addressed to may object to your subpoena. If this happens, you will be served with a copy of their application and get a chance to explain to the court why you need the documents and/or witness. If someone objects to your subpoena, you should get
legal advice.
If a witness does not comply with a subpoena, the court may issue a warrant for their arrest and have them brought before the court.