Step by step guide - Preparing subpoenas

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. 

Sample:  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.

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.

The subpoena must be personally given to the person it is addressed to. This is called service. You can do this by:

• leaving it with the person, or to someone at their residential or business address who is over the age of 16, or

• if the person refuses to accept it, leaving it with them and telling them what it is, or

• posting it to the residential or business address of the person, or sending it to their email address, or

• if the person has a legal representative by leaving it at their address, posting it or emailing it to them.

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.

If a professional process server serves the subpoena, they will also prepare the statement 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.

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.