Subpoenas

Published by Geoff Harrison | 13 November 2023

A subpoena is an order of the court requiring a party to attend court, produce documents or to attend court and produce documents (Subpoena duces tecum). Subpoenas can be issued by police, the Director of Public Prosecutions or an interested party: see s222 Criminal Procedure Act. In certain circumstances leave of the court is required to file a subpoena such as:

• A party not legally represented or in the Small Claims Division of the Local Court: Uniform Civil Proceedings Rules 2005 (UCPR) Reg 7.3

• Federal Court Rules 2011, Rule 24.01

• Sexual Assault Communication Privilege: Criminal Procedure Act 1986, s299C

For the court to allow a subpoena for the production of documents, the subpoena must not be a fishing expedition ie. hoping that some evidence will turn up. The relevance or the legitimate forensic purpose for the issuing of a subpoena is referred to as the "on the cards" test ie. that material relevant to the case will turn up (see Saleam and Alister).

Failure to comply with a subpoena can be contempt of court (see: r33.12 and Contempt of Court). Failure to attend court in criminal proceedings can also lead to the court issuing a warrant for a person's arrest: s229 of the Criminal Procedure Act 1986.

A party to the issuing of a subpoena is a party with sufficient interest relating to the subpoena (see: Sully v Sully). A party can apply to have a subpoena set aside as per s227 of the Criminal Procedure Act 1986, r 6.7 of the Local Court Rules 2009, s53.23 of the District Court Rules1973 and rule 33.4 of the UCPR 2005. A subpoena can be set aside at common law if it is too vague or oppressive (see: Commissioner for Railways v Small) or if no conduct money has been provided.

For a party to be compelled to comply with a subpoena there must also be proof of proper service of the subpoena within the required time frames (at least 5 days prior to the hearing), the rules relating to time and service are:

• Criminal Procedure Act 1986 s223

• Local Court Regulation 6.4

• District Court Rule 53.3

• Uniform Civil Procedure Rule 33.5

• Service and Execution of Process Act 1992 (Cth)

• Part 71A of the Supreme Court Rules 1970

A party to the proceedings may seek short service of a subpoena and abridge the time and date for compliance: s223(2) Criminal Procedure Act 1986. A party can also seek alternative service for a subpoena eg. reg 10.14 UCPR.

To compel compliance with a subpoena there must also be reasonable conduct money provided with the service of the subpoena. Some organisations such as the NSW Police have set fees however, the relevant rules relating to this are:

• Local Court Rules 2009 re attendance of a witness: reg. 6.5

• District Court Rules 1973 re attendance of a witness: r53.21

For service of a subpoena outside of NSW see: Service and Execution of Process Act 1992 (Cth)

For restrictions relating to the use of subpoenaed material from separate proceedings see: The Harman Undertaking

Other Sources:

• NSW Legal Aid: Step-by-step guide - Subpoenas

• NSW Police: Subpoenas

• Police Fees re Conduct Money

• NSW Police and Service of Subpoena

• Subpoenas to the DPP

• Local Court: Subpoena Forms

• NSW District Court: Subpoenas

• NSW On-Line Registry Video: Issuing a Subpoena

• Public Defenders and Subpoenas by Tom Quilter, Barrister, 12 March 2023

• Sexual Assault Communications Privilege Service: Subpoena Survival Guide

• Uniform Civil Procedure Rules 2005: Part 33 Subpoenas

• NSW Supreme Court: Issuing and Inspecting Subpoenas

• Supreme Court Practice Note No. SC GEN 18

• Civil Trials Bench Book: Issue of Subpoena

• Sample form for short service subpoena

• Law Reform Commission: Report 40: Service and Execution of Process

Cases:

• R v Saleam [1999] NSWCCA 86 (Legitimate Forensic Purpose Test)

• Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Legitimate Forensic Purpose Test)

• Mann v Commissioner of Police [2020] NSWSC 369 (Criminal Records)

• Bradley v Senior Constable Chilby [2020] NSWSC 145 (Criminal Records)

• R v Jenkin (No 2) [2018] NSWSC 697 (Criminal Records)

• Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109 (Disclosure)

• R v Abdaly; R v Hosseinishoja (No 1) [2022] NSWSC 1482 (Standing and Legitimate Forensic Purpose)

• Attorney General for New South Wales v Dylan CHIDGEY [2008] NSWCCA 65 (Legitimate Forensic Purpose)

• Waters v Secretary of the Attorney-General's Department (Cth) [2021] NSWCCA 193 (Legitimate Forensic Purpose)

• The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (Abuse of Process or Too oppressive)

• R v DK [2023] NSWCCA 281(Costs)

• Stanizzo v Complainant [2013] NSWCCA 295 (Costs)

• R v ED [2022] NSWDC 142 (Sexual Assault Communication)

• PPC v Stylianou [2018] NSWCCA 300 (Sexual Assault Communication)

• Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Setting Aside of Subpoena)

• Alister v R ("Hilton Bombing case") [1984] HCA 85 (On the cards test)

• Attorney General for New South Wales v Dylan CHIDGEY [2008] NSWCCA 65 (Legitimate Forensic Purpose)

• R v Taylor [2007] NSWCCA 104 (Legitimate Forensic Purpose)

• R v Abdullah & Ors [1999] NSWCCA 188 (Public Interest Immunity)

• Sully & Sully [2018] FamCA 786 (interested party)

• Hatton & Attorney-General of the Commonwealth of Australia & Commonwealth Bank of Australia & Commonwealth Development Bank of Australia [2000] FamCA 892 (interested party)

• R v Grey [2000] NSWCCA 46 (assistance to authorities)

Extracted Legislation:

• Service and Execution of Process Act 1992 (Cth)

• Criminal Procedure Act 1986 - Part 3: Attendance of witnesses and production of evidence in lower courts

• Criminal Procedure Act: Sexual Assault Communications Privilege

• District Court Rules 1973: Part 3, Division 2

• Local Court Rules 2009, Part 6

• Uniform Civil Procedure Rules 2005