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Subpoenas in the Family Court (WA)

A subpoena is a form of summons issued by the court at the request of a party to legal proceedings requiring a person to produce certain documents and/or give evidence for the purposes of a trial. Subpoenas are generally required to be personally served on the named person either in their personal capacity or on behalf of an organisation.

Do I have to respond?

You are required to respond to a subpoena, and failure to do so may amount to a criminal offence. A person can respond to a subpoena either by complying with it or by objecting to it. If a person neither complies nor objects to a subpoena, they are in contempt of court and a warrant may be issued for their arrest.

When accepting service of a subpoena, it is prudent to confirm that you have received all documents which the receipt says have been provided to you.

How do I respond?

You will need to check whether you are required to produce documents or give evidence at court. Check the date and time when you are required to comply with the subpoena. If you are unable to process documents by the specified date, it is recommended that you contact the solicitor who has arranged for the subpoena to be issued.

If there will be an additional cost associated with compliance with the subpoena, you should speak to the solicitor who issued the subpoena about whether those costs can be met.

Conduct money

When subpoenas are issued, conduct money must be paid to the named person to cover the cost of complying with the subpoena. Conduct money for a subpoena to produce documents must cover the costs of identifying, copying and collating the named documents. Conduct money for a subpoena to give evidence must cover the cost of travel to and from court and a reasonable allowance for meals and accommodation during the trial.

If you incur losses or expenses which exceed the amount of conduct money paid, you can apply to the court to be compensated for this.

Who can object?

Anyone involved in legal proceedings can object to a subpoena. This includes the person named in the subpoena, an interested person, a party to the proceedings or the Independent Children’s lawyer. Any of these persons can request that a subpoena be set aside or seek another form of relief.

How do I object to subpoenas?

If you want to object to a subpoena, you will need to complete the ‘Part F Notice’ attached to the subpoena and file it with the court as soon as you can. The notice must not be filed later than 10 days before the hearing date. A sealed copy of the completed notice must be served on all other parties in the proceedings.

Some common reasons for having subpoenas set aside are:

  • The subpoena constitutes oppression or does not give adequate time to comply;
  • The subpoena has not been issued in good faith or for a proper purpose;
  • Compliance with the subpoena requires unreasonable effort;
  • The subpoena has been issued to obtain documents which are otherwise covered by professional or medical privilege;
  • The subpoena requests documents that are commercially sensitive, confidential and personal;
  • The subpoena requests documents that are unrelated to the proceedings or are used as a form of discovery.

If you are objecting to a subpoena, you must attend the court hearing and bring any documents detailed in the schedule of the subpoena to allow the court to determine the objection.

If you require legal advice or representation in relation to a family law matter or any other legal matter, please contact Go To Court Lawyers.

By Romana Simic, Senior Associate

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