If you have had to deal with subpoenas, you must be wondering what is a return of subpoena.
Let’s first understand, what is a subpoena? A subpoena is an order given to a person by the court, asking the person either one of these things: –
- Subpoena to Attend: Attend the court to give evidence.
- Subpoena to Produce: To produce a certain document or thing to the court.
- Subpoena to Produce and to Attend: To do both the above-mentioned things.
The person who receives the subpoena is known as an addressee. Sometimes the addressee can be an organisation, instead of a person.
The party who applies to the court for a leave to issue subpoena is known as an issuing party. The issuing party is required to complete and lodge the Request for Leave to Issue Subpoena form (Form NC57).
The issuer will need to fill a form for each subpoena, and there are three different forms based on each different subpoena: –
- Subpoena to Give Evidence (for making sure a witness comes to the hearing)
- Subpoena for Production (for documents or other evidence)
- Subpoena for Production and to Give Evidence (for making sure the witness comes to the hearing and produces document or other evidence at the hearing).
In cases of a subpoena for production, i.e., subpoena for producing documents, the court will choose a date to decide when the documents need to be provided to the court. This is known as the return of subpoena date.
The issuer then needs to serve the subpoena to the person or organisation. The subpoena needs to be served at least five days before the return of subpoena date.
In cases of other subpoenas, the date the witness must attend the court is usually the same as the hearing date. This date is written on the form, and the court will also write the last date for serving the subpoena.
Once the issuer has served the subpoena to the relevant people or organisations, the issuer needs to file an affidavit before the return of subpoena date (in case of subpoena of production) and before the hearing date (in case of subpoena of evidence).
Fill the subpoena form:
The witness will be addressed by the subpoena that is filed by the issuing party. In case the witness is an organisation, the issuing party needs to make sure to address the ‘Proper Office’. They also need to contact the organisation and confirm that the registered address the issuer has on file is accurate. In addition to that, they need to clearly state which documents need to be provided.
Filing the subpoena:
When filing the subpoena, it is important to take three copies, which must then be sent to the court registry.
The return of subpoena date is written on the subpoena and is essentially the date on which the court orders the person or the organisation to: –
- Attend to give evidence, and/or
- Bring all the relevant documents to the court
In cases concerning Subpoenas of Production, the relevant documents can be posted to the court. In this case, the documents need to arrive at the court by the return of subpoena date.
On the date of return of subpoena, you can go to court to ask the court registrar for permission (leave) to make copies of the documents, or to simply look at the documents.
In case you can’t produce the subpoena or attend the court by the date of return of the subpoena, you need to contact the issuing party in order to make a joint request to the court to ask for a new return of subpoena date.
What if I don’t comply with a subpoena?
If a witness does not comply with a subpoena, the court has the authority to issue a warrant for their arrest, and have the witness brought to court.
This means that it is very important for a person to comply with a subpoena. The only two instances where you do not need to comply with a subpoena is if: –
- The subpoena was not served by the issuing party in the manner that is required by the Family Law Rules 2021.
- The conduct money was not provided. Conduct money is the money that the issuing party provides to the person or organisation for complying with the subpoena.
Objection to subpoena
The person or organisation who is served a subpoena may object to the subpoena if they wish to do so. In this case, the issuing party will get the application filed by the person objecting to the subpoena. In case of objection, the issuing party needs to explain to the court why they need the witness and/or documents.
Certain reasons why the person or organisation may object to the subpoena include: –
- If they were not served the subpoena in time
- If the conduct money was not enough
- If they need more time to comply with the subpoena
- If the court had not granted permission for the subpoena to be issued
Importance of seeking legal advice
Firstly, the very process of preparation of subpoena is tricky. This is the foremost reason why you should get legal advice. This is because having all your applications and documents handled properly is essential, and with legal advice, your lawyers will efficiently take care of all that for you.
Secondly, if you are the issuing party, and someone has objected to your subpoena, you need to take legal advice. This is because having legal representation will support you in the process of explaining to the court why you need specific documents or witnesses. Our solicitors can argue for your case, and ensure that you receive the best possible outcome.
At JB Solicitors, our friendly and experienced lawyers can help you every step of the way, whether you’re the issuer of a subpoena, or if you have been served a subpoena. We understand how complex these court procedures can get, and we are motivated to make your legal experience as pain-free as possible.
Contact JB Solicitors to have a confidential chat with one of our lawyers today.