A subpoena can be issued to a person or organisation to produce documents to the court to assist in the case. Access to those documents can be sought from the court.
District Court Practice Note Civil 8 provides specific directions in relation to the early return of subpoenas.
Does an unrepresented party require leave to issue a subpoena?
Yes - a party not represented by a solicitor will need the leave of the court to issue a subpoena. Applications for leave to issue a subpoena may be made to the duty registrar and should be supported by an affidavit setting out the relevance of the subpoena. See rule 7.3 of the Uniform Civil Procedure Rules 2005.
How do I obtain a return date for a subpoena for production?
Contact the court registry where the matter is listed.
How do I apply for short service of a subpoena?
A sample form for short service of subpoena is available for download – Sample form for short service of subpoena.
An application can be made to a registrar. You will need an affidavit in support of your application and a form of order. See the sample short service order in the right hand column on this page.
Application is made by way of notice of motion, which attracts the payment of a fee. See the fees for:
- Notice of Motion, Civil Procedure Regulation 2005, Schedule 1, Part 3, item 8
- Sealed copy of Order, Civil Procedure Regulation 2005, Schedule 1, part 5, item 6.
The affidavit should very briefly explain the relevance of the person and/or documents or things the subject of the subpoena. The affidavit should also outline the conversation between the deponent (the party lodging the affidavit) and the subpoenaed person with regard to his or her consent to the proposed abridgement of time.
If the application is to serve a subpoena outside NSW you will also need to address the requirement of the Service and Execution of Process Act 1992 (Cth) in your application and include the prescribed form of notice with your subpoena.
What is a 'proposed access order'?
This is the access order that is proposed by the issuing party of the subpoena, for example, plaintiff first access for seven days or general access. If there is no objection to the proposed access order at the return of subpoena, the order will automatically take effect from the day following the return of subpoena.
The issuing party must endorse the proposed access order on the subpoena notice that is to be attached to the service copies of the subpoena. The issuing party must serve a copy of the subpoena to produce and the subpoena notice on all other parties who have an address for service.
Refer to the District Court Practice Notes for further details.
What does 'NPAO' mean?
NPAO is an abbreviation of 'no proposed access order'. This registry enters this notation when the proposed access order is unknown. This generally occurs where the recipient of a subpoena does not attach the subpoena notice to the documents or things produced to the registry.
Applications to uplift documents or things
To uplift a document or thing produced under subpoena, you will need to apply to the registrar for an uplift order. Your application to the registrar will need to be supported by the written consent of each of the active parties in the proceedings and also the written consent of the producer of the documents or things sought to be uplifted. (see rule 33.9 and rule 1.3 of the Uniform Civil Procedure Rules 2005).
How do I get access to subpoenaed documents where there is no order for access?
This applies to Sydney matters only. You will need to approach the duty registrar with the written consent of all active parties in the proceedings. Alternatively, you may request that the registry re-list the mattes in the subpoena list. You will then need to advise all active parties in the proceedings of the date and time, and the purpose, of the re-listing.