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What is a subpoena?

A subpoena is issued by the Court to require a person or organisation to produce documents or give evidence at a hearing or trial. A subpoena is used when the person or organisation refuses or is unable to produce documents or give evidence voluntarily.

There are three types of subpoena:

  • A subpoena for production, where a document or thing needs to be produced;
  • A subpoena to give evidence, where a person is required to appear in court as a witness; and
  • A subpoena for both production and to give evidence.

 

How are subpoenas issued?

A subpoena is issued by the Court at the request of one of the parties to the case.

The correct Form for requesting a subpoena is a Form 14. This Form is available here.

If a party to proceedings wants the Court to issue a subpoena the party should complete the Form 14 and file it with the Court.  If you are a self-represented litigant you must also file a letter with the Court explaining why a subpoena is needed.

 

How much do subpoenas cost for the Court to issue?

The Court charges a fee of $55 for filing a Form 14.

In addition to the filing fee, you must also pay the person or organisation subpoenaed ‘conduct money’ and/or witness fees.

If a subpoena is issued to produce documents, the person or organisation served must receive conduct money to meet the reasonable expenses of complying with the subpoena. For example, the cost of identifying, copying and collating the documents required. This will be at least the minimum amount of $10 however can be a higher amount.

If a witness is subpoenaed to attend a hearing or trial, you must pay:

  • A minimum of $25 in conduct money, this is to cover transport and accommodation for the witness;
  • $75 per day, or part of a day, to cover the witness being away from their place of work or home; and
  • If the witness is an expert witness, such further amount as agreed between the parties or allowed by the Court.

 

 

What are the time limits for filing a subpoena?

  • A Form 14 to produce documents or to produce documents and attend Court to give evidence must be filed at least 14 days before the hearing date; and
  • A Form 14 to attend Court and give evidence must be filed and served at least 7 days before the hearing date.

If you wish to issue a subpoena outside of these time limits, you will have to satisfy the Court of the need to issue the subpoena. You will also need to show the Court that you have contacted the person or organisation to be subpoenaed and that they have agreed they will be able to comply with the subpoena, even though it is out of the normal time limits.

 

What do I do if I receive a subpoena?

If you have received a subpoena, what you are required to do will depend on whether you are to attend Court to give evidence or you are to produce documents for the Court.

If you are required to attend Court to give evidence you will be required to attend Court on the date and time set out in the subpoena.

If you are required to produce documents you must provide the Court with the documents listed in the Schedule to the Subpoena. This can be done by attending the Court and producing the documents on the required date, or mailing or delivering the documents to the Court at least 2 days before the required date.

You do not need to comply with a subpoena if:

  • The subpoena was not served on you personally; or
  • Conduct money has not been provided.

You may object to the production of documents required by a subpoena for reasons such as:

  • The documents requested are irrelevant;
  • The documents are ‘privileged’ (eg: documents which came into existence as a result of a lawyer/client relationship); or
  • The terms of the subpoena are too broad.

If you wish to object to a subpoena you must complete, file and serve Part F of the subpoena at least 10 days before the Court date listed in the subpoena and then attend Court on that date.

 

If you want to issue a subpoena or if you have received a subpoena, please don’t hesitate to make an appointment with a member of our team at Lynn & Brown Lawyers.

 

This article has been co-authored by Robert Pearson and Jacqueline Brown at Lynn & Brown Lawyers.  Robert is one of our family law team members and has experience in a variety of family law matters including children’s issues.  Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning.  Jacqui is also a Nationally Accredited Mediator and a Notary Public.

 

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