Australia has an adversarial legal system. This means that during a court case, each side presents arguments and evidence in support of his or her version of events. The court then decides who has convinced them of their version of events in order to win their case. Often, parties to a court case do not possess all of the evidence they need to prove their case, such as physical documents or witness testimony to support their argument. In this case, the party in need of additional evidence may need someone to give oral evidence. Parties can force somebody to attend by serving them with a subpoena

If you have been served with a subpoena, it is essential that you understand your options. If you receive a subpoena, you cannot ignore it. This article will explain:

  • what a subpoena to attend is; and 
  • your options after receiving one.

What Is a Subpoena to Attend?

A subpoena is a legal document a court can issue at the request of a party to a case. Once granted by the court, a subpoena forces somebody to:

Though this article will focus on subpoenas to attend to give evidence, it is worth noting that there are three types of subpoena. These are subpoenas:

  1. for production (a court order that requires a person to produce documents);
  2. to give evidence (a court order that requires a person to attend a hearing to give evidence); and
  3. for production and to give evidence (a court order that requires a person to produce documents and attend a hearing to give evidence). 

A subpoena requiring attendance to give evidence must specify the date, time and place of attendance. It must also set out the last date on which the subpoena can be validly served on the subpoena recipient (called ‘last date for service’). This can be as few as five days before you need to attend court. 

Once the court grants a subpoena, it becomes an order of the court. This means that you cannot ignore it unless you have a lawful reason to do so. Without a lawful excuse, failure to comply with a validly issued subpoena constitutes contempt of court and may result in a warrant for your arrest. 

Service

A subpoena must be served to you personally. If it is not, it will be considered invalid. Service is typically managed by a professional agent known as a process server, who will track you to your residential address or known place of business. If you are particularly difficult to locate, other professionals such as skip tracers or private investigators may also look for you.

If you refuse to accept a subpoena when a process server hands it to you, he or she can still validly serve the subpoena by placing it in your presence and explaining what it means.

Once you have been served with a subpoena to attend to give evidence, you must act quickly. You generally have two options. You can:

  1. comply with the subpoena; or 
  2. make an application to the court for it to be set aside.

Option 1: Complying With the Subpoena to Attend to Give Evidence

You must comply with a subpoena to attend to give evidence if:

  1. you were served by the last date of service specified in the subpoena; or
  2. you had actual knowledge of the subpoena and its requirements by the last date for service, even if you were not personally served; and 
  3. conduct money has been tendered.

Conduct money is payment for any reasonable expenses that you are likely to incur in complying with the subpoena.

This conduct money should be provided: 

  • at the time of service of the subpoena; or
  • within a reasonable time after service. 

Alternatively, the party issuing the subpoena may formally agree to cover your reasonable invoiced expenses, such as airfares if you must attend a court interstate, in arrears.

You may not be required to comply with the subpoena to attend court to give evidence if you do not receive an amount sufficient to meet your reasonable expenses in complying with the subpoena. 

For example, the original amount tendered may not be sufficient to meet your reasonable expenses to attend court, particularly if:

  • you are required to travel; or
  • your attendance may also result in lost wages.

If you are not a party to the case, you may be able to claim these additional costs as reasonable expenses incurred in complying with the subpoena, called ‘witness’ expenses’.

If you wish to make a claim for your additional reasonable expenses, you should write to the party who served the subpoena. You may need to make an application to the court if you are unable to reach an agreement with the issuing party as to what your reasonable expenses are. The court may then make an order to compensate you for reasonable losses or expenses incurred in complying with the subpoena. 

Option 2: Make an Application to Set Aside the Subpoena to Attend or Seek Other Relief

Any party with a sufficient interest (i.e. not just you) can apply to the court to: 

  • have a subpoena set aside; or 
  • seek other relief if they need to attend. 

If a court grants a request to set the subpoena aside, you will not need not attend. If it does not, the court may make other orders in your favour. 

For example, you may be able to give evidence under a pseudonym to protect your identity.

A court may also set aside a subpoena to attend if you can prove that its purpose is an abuse of the court process in some way.

You may also be able to set aside a subpoena to attend to give evidence if it is clear that you, as a witness, cannot give any relevant evidence. 

In order to set aside a subpoena, you must file and serve a notice of motion and supporting affidavit which specifies evidence supporting one or more of the above grounds. You must then appear before the registrar for a short hearing. The registrar will decide whether to set aside the subpoena or not. If an interested third party or the recipient of the subpoena has the subpoena set aside, then the issuing party may need to pay your costs as the recipient.

Key Takeaways

If you receive a subpoena to attend, you must comply. You should always seek legal advice before attending to give evidence to ensure that you are not waiving privilege or confidentiality, or responding to a subpoena that you could have set aside. If you have been served with a subpoena to attend, call LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.

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