NSW UCPR [Form 25] Subpoena to Attend to give Evidence

When is a NSW UCPR [Form 25] Subpoena to Attend to give Evidence used?

See UCPR Part 33 for more information.

Nationally Harmonised Subpoena

The NSW UCPR and this [Form 25] Subpoena are harmonised nationally with other jurisdictions in Australia.

The nationally harmonised form of Subpoena provides 3 separate options for different types of Subpoena:

1️⃣ Subpoena to Produce [Form 26A];

2️⃣ Subpoena to Attend to Give Evidence [this Form 25]; and

3️⃣ Subpoena to Attend to Give Evidence and to Produce [Form 27A].

Feedback has indicated that retaining all 3 options without deleting the options that are not relevant to the individual Subpoena has resulted in a longer document giving rise to potential confusion for the person receiving it.

Therefore, a separate form has been approved for each type of Subpoena to:

✅ Increase user friendliness;

✅ Make it clear what is required of the person receiving the Subpoena; and

✅ Save on wasted paper.

You can indicate in the Subpoena if you agree to the person receiving the Subpoena to Produce copies (rather than originals) of the documents to the court (see UCPR 33.7).

Request to Issue Subpoena

UNIFORM CIVIL PROCEDURE RULES 2005 - REG 3.14

(1) This rule applies to a request on behalf of a party to issue a subpoena submitted to the court using the Online Registry.

(2) A request to issue a subpoena using the online registry can only be made on behalf of a party who is represented by a solicitor.

(3) A request to issue a subpoena is made by--

(a) providing the name of the person to whom the subpoena is addressed, and

(b) uploading a copy of the proposed subpoena in the approved form.

(4) The registered user who submitted the request to issue a subpoena will receive confirmation that the request has been accepted when a coversheet is inserted as the first page of the uploaded subpoena in accordance with rule 3.15.

(5) If the request to issue a subpoena is for a subpoena for production and to allocate an early return date, the coversheet will also include a notice of the date, time and place where the person is required to attend to produce documents sought under the subpoena if the documents are not produced to the registry beforehand.

(6) The coversheet will be sealed.

(7) The coversheet is taken to be part of the issued subpoena for the purposes of these rules.

UCPR 3.1 Definitions

"coversheet" means a page that is generated by Online Registry that includes details about the case in which the document is being filed (including the case number).

Subpoena for a Medical Expert

See UCPR 31.32 and 31.33 for more information if you are issuing a Subpoena against a medical expert.

Service of the Subpoena

After the Subpoena has been issued, you MUST arrange for:

⚖️ The Subpoena to be served on the person to whom it is addressed not less than 5 clear working days before the date on the Subpoena to Produce.

You MUST seek leave of the court if you wish to serve a Subpoena a shorter time before the return day.

A copy of the Subpoena to be served on each other active party in the proceedings (see UCPR 33.5).

See UCPR Part 10 for more information about how to serve a Subpoena or other document.

A Supreme Court Subpoena is required to be served personally on the addressee.

The person who produces the documents or things to the court may request that you pay the amount of any reasonable loss or expense that they incur in complying with the Subpoena to Produce.

You should attempt to agree with the person producing the documents on the amount of any reasonable loss or expense.

If you cannot agree, the court may be asked to make an order about the amount that you must pay.

Failure to Comply with Subpoena ➲ Contempt of Court

Failure to comply with a Subpoena without lawful excuse is a contempt of court and may result in the person's arrest.

Notes included in the Subpoena

Last Day for Service

1️⃣ You need not comply with the Subpoena unless it is served on you on or before the date specified in the Subpoena as the last date for serving the Subpoena.

Informal Service

2️⃣ Even if this Subpoena has not been served personally on you in accordance with the rules, you MUST, nevertheless, comply with its requirements, if you have, by the
last date for service of the Subpoena, actual knowledge of the Subpoena and of its requirements.

Addressee a Corporation

3️⃣ If the Subpoena is addressed to a corporation, the corporation must comply with the Subpoena by its appropriate or proper officer.

Conduct money

4️⃣ You need not comply with the Subpoena in so far as it requires you to attend to give evidence unless conduct money sufficient to meet your reasonable expenses of
attending as required by the Subpoena is handed or tendered to you a reasonable time before the date on which your attendance is required.

Applications in Relation to Subpoena

5️⃣ You have the right to apply to the Court:

(a) for an order setting aside the Subpoena (or a part of it) or for relief in respect of the Subpoena, and

(b) for an order with respect to your claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the Subpoena.

Loss or Expense of Compliance

6️⃣ If you are not a party to the proceeding, you may apply to the court for an order thatthe issuing party pay an amount (in addition to conduct money and any witness’s
expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying with the Subpoena.

Failure to comply with subpoena—arrest

7️⃣ Failure to comply with a Subpoena without lawful excuse:

(a) is a contempt of court (UCPR 33.12) and may be dealt with accordingly.

(b) may lead to your arrest under section 97 Civil Procedure Act or under rules of the court to enforce compliance with a Subpoena.

Document Overview:

✅ Suitable for the NSW Courts under the Uniform Civil Procedure Rules (NSW) 2005;

✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;

✅ For use in all NSW Court registries for all NSW Courts including Local (General & Small Claims), District (All Lists^), Supreme (Common Law & Equity Divisions) and all Appeals to the NSW Court of Appeal.

Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.

Legal Advice Recommended

The preparation of a Subpoena to Attend to give Evidence has important strategic legal implications.

In short, due to the complexities involved:

➲ We recommend you contact our legal team to obtain legal advice and guidance.

Important Notes:

The party preparing this Form is required to serve a copy of the Form on the witness at least 5 days before the earliest date on which the witness is required to comply with the Subpoena or an earlier or later date fixed by the court (UCPR 33.3), unless the Subpoena is to be served on a medical expert (see UCPR 31.32) or outside NSW, but in Australia.