Schools are frequently served with subpoenas to either produce documents and/or occasionally to require employees to give evidence relating to various court matters from personal injury actions to family court disputes.
Complying with a subpoena can be burdensome and time-consuming.
What is a subpoena?
A subpoena is a legal document. It is a court order issued at the request of a party to the proceedings, who believes that a person, who is not otherwise involved in the legal issue, possesses relevant documents or information.
A subpoena compels a person to produce documents and/or give evidence in court proceedings. Failure to comply with a subpoena may amount to contempt of court.
Different courts or tribunals may issue documents called a ‘Summons’ or ‘Notice to Produce’ but in all other respects the requirements to comply will be the same as a subpoena.
Requirements and processes relating to subpoenas vary according to the jurisdiction and type of Court. For example, Civil, Criminal, Children’s or Family Courts.
The information contained on this page is relevant to NSW only.
Types of subpoenas
There are three types of subpoenas:
- Subpoena for Production: A court order that requires production of documents to the court.
- Subpoena to Give Evidence: A court order that requires a person to attend court to give evidence.
- Subpoena for Production and to Give Evidence: A court order that requires production of documents and to attend before the court to give evidence.
Responding to subpoenas
Is the subpoena valid?
If you or your school is served with a subpoena, you should first check whether the subpoena is valid.
For the subpoena to be valid, it must be filed and issued by a court or tribunal and must have been served on or before the last date for service specified in the subpoena. However, if a subpoena has been served after the last for service, you may still need to comply with it.
If you are unsure whether a subpoena is valid, please seek legal advice.
Responding to a Subpoena for Production
When do documents need to be produced?
Assuming that a subpoena is valid, documents need to be produced by the date specified in the subpoena as the ‘return date’.
What documents need to be produced?
A subpoena for production sets out the documents that must be produced in a ‘schedule’.
If the scope of the subpoena is too broad, an objection can be raised informally with the party who has issued the subpoena requesting that the scope of the subpoena is narrowed.
Alternatively, or if the issuing party does not agree to narrow the scope of the subpoena, the school can make an application to the court to set the subpoena aside. An application can be made to set a subpoena aside if the subpoena is too vague or broad, sought for an improper purpose, the subpoena cannot be properly answered or if complying with the subpoena causes an undue burden.
The fact that the documents sought under subpoena are confidential or contain personal information does not mean the subpoena will be set aside - it is still necessary to produce all subpoenaed documents to the Court. However, schools should check whether there are any steps they can take to protect the confidentiality of such documents. For example, it may be possible to seek orders for confidentiality, which may include redaction of parts of the documents. If you have not received any authorisation by the court, documents should not be redacted upon production to the court.
If the documents sought under a subpoena attract legal professional privilege, then this may make them exempt from disclosure. However the documents will still need to be produced to the Court, in a separate bundle that clearly identify there is a claim for privilege.
Responding to a Subpoena to Give Evidence
When do I need to attend court or the tribunal to give evidence?
When served with a subpoena to give evidence, assuming that a subpoena is valid, you must comply with it and attend court or tribunal on the date specified on the subpoena (the ‘return date’).
It is standard practice for the party who requested the subpoena to contact the witness before the return date to make necessary arrangements for attendance.
What if I can’t attend on the return date?
Compliance with a subpoena to give evidence is mandatory. If you do not comply, a court may issue a warrant for your arrest and order payment of any costs caused by the non-compliance. A court may also find you guilty of contempt of court.
If you cannot attend on the date specified on the subpoena, in the first instance, contact the party that requested the subpoena. You can also contact the court or tribunal for further information.
Responding to Subpoena for Production and to Give Evidence
When do I need to attend court or the tribunal to give evidence?
Assuming that the subpoena is valid, you must attend court or the tribunal on the date specified on the subpoena (the ‘return date’) and produce the documents set out in the schedule.
Conduct money
Conduct money is money provided to the person served with a subpoena to cover the costs of complying with subpoena. Conduct money should accompany the subpoena.
If the costs of complying with the subpoena (for example legal costs and photocopying) exceed the conduct money, a request for additional costs can be made to the issuing party. If denied, an application can be made to the court for additional costs.
Need more help?
The information contained on this website is of a general nature only and does not constitute legal advice. There may be other obligations imposed on schools in relation to responding to a subpoena that are not mentioned here.
If your school needs help with responding to a subpoena related issue, you can contact the Catholic Schools New South Wales Legal Hotline:
- Call 1800 4Catholic Schools New South Wales (1800 427 679).