Receiving a subpoena for anyone can be daunting and a bit nerve-wracking, especially if you are not a party to the proceedings and have no idea what they are about! Below, we provide some tips on what to do if you want to resist a subpoena.

Remind Me Again: What is a Subpoena?

A subpoena is a court order requiring a corporation or natural person to either attend court to give evidence or to produce documents or other evidence. If you have received a subpoena, you need to produce documents under the subpoena schedule unless it is set aside.

When Can a Subpoena be Set Aside?

Any person with a legitimate interest can apply to have the subpoena set aside. It is therefore not just the recipient who can apply for the order to resist a subpoena. The effect of setting a subpoena aside means that it will be ineffective, and the recipient will not be required to produce the documents. This article focuses on setting aside a subpoena on the ground of oppression. A subpoena will be oppressive if it places an onerous burden on the recipient. So what is deemed oppressive enough to resist a subpoena?

Is the Subpoena Too Wide or Ambiguous?

As a recipient of a subpoena, you are not expected to produce everything but the kitchen sink. The subpoena should not be excessively wide in scope, should clearly set out what it requires from you, and should not ‘unfairly burden’ or prejudice the recipient. If it does unfairly burden the recipient, it can be deemed oppressive. Similarly, a subpoena cannot be ambiguous, to the extent that the recipient of the subpoena has to guess or form his or her judgment about the documents that will fall within the scope set out in the subpoena. It should be clear on the face of the subpoena exactly what you are required to produce.

Requesting Clarification

One way to narrow the scope of the subpoena is to write or otherwise contact the other party to seek clarification as to what documents or evidence they are after. If that doesn’t work, it’s then open to you to apply to have the subpoena set aside.

What Might a Court Consider an Oppressive Subpoena?

The grounds of oppression are not limited and different factual circumstances can affect whether a subpoena is oppressive. The court, for example, may consider that a subpoena requiring a party to produce copies of all bank statements issued by a particular bank or branch for six months or an entire year to be oppressive.

On the other hand, depending on the circumstances, the court may consider that larger corporations, who have sufficient resources and entire departments to deal with subpoenas, are not oppressed by a wide or ambiguous subpoena in the same way that an individual would be, and allow the subpoena to have full effect.

So if You Receive a Subpoena and You Think it is Oppressive What Should You do?

As set out above, you should raise any concerns you have about a subpoena through direct correspondence with the issuer. It may be that you can reach an agreement with them to clarify what documents they are looking for or to narrow the scope of what they are after. If you can reach that agreement, then you will not need to make any applications to the court.

If you can’t reach an agreement with the other party, it may be appropriate to apply for the court to declare the subpoena oppressive and set it aside.

Key Takeaways

Subpoenas are a common type of court document used to obtain information, documents or other evidence from parties during a legal dispute. If the scope of a subpoena is wide or ambiguous, you may have grounds to resist a subpoena for being oppressive.

If you think that this applies to your situation, LegalVision’s dispute team can assess a subpoena and provide you with advice as to whether it is oppressive, and what steps you can take to amend the subpoena or set it aside. Questions? Get in touch on 1300 544 755.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Emma George
Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

  • By submitting this form, you agree to receive emails from LegalVision and can unsubscribe at any time. See our full Privacy Policy.
  • This field is for validation purposes and should be left unchanged.
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at

View Privacy Policy