There are three types of subpoenas (pronounced supeenas):
- Subpoena for Production: A court order that requires a person to produce documents
- Subpoena to Give Evidence: A court order that requires a person to attend a hearing to give evidence
- Subpoena for Production and to Give Evidence: A court order that requires a person to produce documents and attend a hearing to give evidence.
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. To get a subpoena you will need to:
Subpoenas - step by step guide
Step 1: Get the subpoena form
You can get subpoena forms from:
Step 2: Fill out the subpoena form
If you need documents or other evidence for your case, you can get the evidence by using a Subpoena to Produce. You need to clearly describe which document or documents have to be provided. For more information, see Sample Subpoena for Production.
If you want to make sure a witness comes to the hearing to give evidence, you can serve them with a Subpoena to Give Evidence.
If you want a witness to produce documents and to attend court to give evidence you can apply for a Subpoena for Production and to Give Evidence.
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 can just write 'The Proper Officer' if you do not know their name. You should contact the organisation to make sure the address of their registered office is correct.
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. There is no filing fee.
The court will fill in the date the documents have to be provided to the court and/or the date to attend the hearing. The court will also fill in the last date for serving the subpoena.
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: Sample Notice of Motion for short service of a subpoena
Sample: Sample Affidavit in support of short service
Step 5: Serve the subpoena
The subpoena must be personally given to 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. This is called service. The subpoena 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 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 to be given for a Subpoena to Produce is not specified but must be reasonable. 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 want to use a subpoena in your case, there are many rules about when you can serve a subpoena and how much time the person you serve must have before they need to respond to your subpoena. For information about these rules contact your Local Court or get legal advice.
Step 6: Fill out an Affidavit of service
If a professional process server serves the subpoena, they will also prepare an 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 an Affidavit of Service.
Step 7: Go to court for the return of subpoena
The return of subpoena date is written on the subpoena by the court officer when the subpoena is filed at the court registry. This is the date when the person or organisation in the subpoena must bring the documents to court or attend to give evidence.
If it is a Subpoena to Produce, the documents can 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.
The person or organisation that has been served with the subpoena may also be able to submit the subpoenaed items electronically, by the return of subpoena date, via the NSW Online Registry website. This option removes the need for you to attend court to photocopy subpoenaed items, as you may be able to request to download and view the documents online.
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 have not been able to find the documents.
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.
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.
For answers to some commonly asked questions, see Frequently Asked Questions.