What is a subpoena?

A Subpoena is a legal document issued by the Court at the request of a party involved in court proceedings. A subpoena is often served on a third party to provide evidence to the Court.

The recipient of a subpoena is often called a subpoena party or addressee and the party who requests that a subpoena be issued by the Court is often called the issuing party.

Three types of subpoenas that can be issued by the Court:

1. Subpoena for Production: This is a Court order which requires a person or company, often known as the subpoenaed party, to search and produce certain documents to the Court.
2. Subpoena to Give Evidence: This is a Court order that requires the subpoenaed party to give oral evidence at a hearing.
3. Subpoena for Production and Subpoena to Give Evidence: This is a combination of the above Court Orders whereby a subpoenaed party is required to produce certain documents to the Court and attending Court to give oral evidence by.

Generally, a subpoena can only be issued with leave of the Court or after a hearing date has been set. There are several requirements that must be met before a subpoena can be issued by the Court. They must contain:

1. The correct name of the person or the proper officer of the company.
2. The correct address of the person or the registered office of the company.
3. Provide a last date of service. This means that the party issuing the subpoena served on the subpoenaed party by a certain date. Generally, this date will be at least 5 business days prior to the compliance date.
4. Provide a date of compliance. This means that the subpoena must indicate to the subpoenaed party when documents must be produced, or evidence must be provided before the Court.
5. If documents, are required to be produced it must include a schedule with a description of the documents required to be produced to the Court.
6. If the subpoenaed party is in a different state in Australia, the subpoena should be served with Form 2 under the Service and Execution of Process Act 1992 (Cth).
7. Some jurisdictions also require a declaration by the addressee to be provided alongside the subpoenas.

Once a subpoena has been issued by the Court, the issuing party is responsible for serving the subpoena on the subpoenaed party.

Service of a subpoena must be done in accordance with the legislation of each state however generally speaking personal service of a subpoena is required if however the person has a solicitor, the subpoena may be served on the persons solicitor.

When serving a subpoena conduct money must be offered or paid to the subpoenaed party. A subpoenaed party who is not paid or tenders conduct money may not be obligated to comply with the subpoena.