What is a subpoena?
A subpoena is a legal document issued by a court at the request of a party to a case. A subpoena compels a person to produce documents or give evidence at a hearing or trial.
There are three types of subpoena:
- a subpoena for production
- a subpoena to give evidence, and
- a subpoena for production and to give evidence.
You can request a subpoena if a person refuses to give evidence or provide documents to a court, or is unable, of their own free will, to do so.
Before you request a subpoena, you should make all attempts to get the required document or evidence. This may include asking the person to provide the document to you or prepare an affidavit in support of your case.
You should not request a subpoena for production and to give evidence if production of the documents alone would be sufficient.
How do you apply for a subpoena?
You will need to complete the form titled Subpoena - Family Law that is approved by the Court. For more information see the brochure Subpoena: Information for a person requesting the issue of a subpoena.
Unless a court orders otherwise, a subpoena must not be served on a person under 18 years of age.
In some situations, you will need to prepare a letter to support your request for a subpoena. For example, where there are less than seven days before the Court hearing date or where the request is made by an unrepresented litigant (a person who does not have a lawyer). For more information about when you need to prepare a supporting letter, see the Leave requirements for subpoenas in family law proceedings flowchart.
A party can request up to five subpoenas to produce documents for the hearing of any application seeking interlocutory orders.
A subpoena for the hearing or trial of an application seeking final orders or in an appeal will not be issued unless a judge, or registrar gives permission.
A subpoena will not be issued:
- for an unrepresented litigant, unless a registrar has given prior approval
- for a party seeking production of a document or thing in the custody of another court (for the process to make this request see Rule 6.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, or
- if the appropriate fee has not been paid.
NOTE: there are special rules covering subpoenas to be served in New Zealand. They can be found in Practice Direction – Trans-Tasman Proceedings Act.
Conduct money and witness fees
You are required to pay conduct money to the named person. If you do not provide this money, the named person is not required to comply with the subpoena.
For a subpoena for production, you must give the named person conduct money sufficient 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 $25 or such other sum as agreed or ordered.
For a subpoena to give evidence or a subpoena to give evidence and produce documents, the conduct money covers return travel by public transport from the person’s place of work or residence to court, and a reasonable allowance for accommodation and meals during the estimated time of personal attendance at the hearing or trial.
You must also pay witness fees for each person you subpoena to attend court.
- All witnesses: $75 for each day, or part of a day, that the person is absent from their place of employment or residence, in order to meet the requirements of your subpoena.
- Expert witnesses: such further amount as agreed or the Court allows.
NOTE: If a person incurs a substantial loss or expense greater than the set conduct money or witness fee, a court may order that the issuing party reimburse these expenses.
Does a person have to comply with a subpoena?
Yes. A person must comply with a subpoena unless:
- the subpoena was not served on the person in the manner required by the Family Law Rules 2021, or
- conduct money was not provided.
If a person does not comply with a subpoena, a court may issue a warrant for the person’s arrest, and/or order them to pay any costs caused by the non-compliance. A court may also find the person guilty of contempt of court.
Production of documents
Can a person object to producing a document?
Yes. Objection can be made to the production of documents required by a subpoena for reasons such as:
- the documents requested are irrelevant
- the documents are privileged (for example, documents which came into existence as a result of a lawyer/client relationship), or
- the terms of the subpoena are too broad.
In this case, a party (including the Independent Children’s Lawyer) or a person (named or affected by a subpoena) may seek an order that a subpoena be set aside in whole or in part. They must complete and file a Notice of objection - Subpoena. For more information see the brochure, Subpoena: Information for named person or other person (served with a subpoena or copy of a subpoena).
Inspecting and/or copying documents produced
If the subpoena is for production only, and the issuing party has served the subpoena in compliance with the Rules and the named person has complied with the subpoena and there is no objection made to the production of the documents, the issuing party may on or after the production day file a Notice of Request to Inspect.
Each party to the proceedings, including the Independent Children’s Lawyer, may then make an appointment with the Court to inspect the documents produced and take copies of documents other than a child welfare record, a criminal record, medical record or police record.
Inspection of medical records
If you have subpoenaed a person’s medical records, the person whose records have been produced may give notice to the Court that they want to inspect those medical records in order to decide if they wish to object to their inspection. If they object to their records being inspected, they are allowed to file their notice of objection within seven days after the date for production in the subpoena. In this case, you, or any other party or interested person, will not be permitted to inspect the medical records until the later of seven days after the date for production, or the hearing and determination of any objection.
Are there any restrictions in using a subpoenaed document?
A person must only use documents obtained by subpoena for the purposes of the proceeding and must not disclose the contents or give a copy of a document to any other person without the permission of a court.
Legal advice
If you have any legal questions about subpoenas, you should get legal advice. You can get legal advice from a:
- legal aid office
- community legal centre, or
- private law firm.
Court staff can help you with questions about court forms and the Court process, but cannot give you legal advice.
