Setting Aside a Subpoena in NSW


Have you been subpoenaed to appear at court or provide evidence that you don’t think is necessary?

Although a subpoena is a legally binding document, in some cases, you may be able to get your subpoena set aside.

Setting aside a subpoena in NSW is a process which will require an understanding of the law and how it relates to subpoenas.

What is a subpoena?

A subpoena is a legal document requiring a person to provide specific evidence, or to appear as a witness in a legal matter.

If you have been asked to provide documents relating to a legal matter or to go to court and give evidence and you refuse, you may be served with a subpoena, requiring you to provide the required evidence or appear at court.

Subpoenas are issued by the court, and unless there is a very good reason, once you have been served with a subpoena you are legally required to comply with the request.

What if I ignore the subpoena?

If you ignore the subpoena and don’t provide the required documents or appear at court on the specified date, you could be arrested and charged with contempt of court.

It is very important that if you have been served with a subpoena, however unreasonable you feel it is, you comply with it unless you are able to successfully get it set aside.

How do I get a subpoena set aside?

There are a number of different grounds for setting aside a subpoena.

If you want to have your subpoena set aside, you will need to provide evidence to demonstrate one or more of the following:

  • The subpoena is oppressive either by being too vague in its instructions or by requesting a large volume of documents that would be too onerous to produce.
  • There is no real evidence to support producing the documents and the request is speculative rather than based on anything concrete. A subpoena is not supposed to be granted for the purpose of looking for evidence, there needs to be evidence already existing that the documents required will support.
  • The documents or evidence requested by the subpoena are not relevant to the case or not relevant for the purposes of litigation.
  • There is no legitimate forensic purpose for the subpoena.

For a subpoena to be approved, the person requesting it must show that it has a legitimate forensic purpose, and that the evidence or documents requested will materially assist the case.

Getting a subpoena set aside is not always easy and it is a good idea to seek legal advice to ensure the best chance of success.

If you want to get a subpoena against you set aside you will need to fill out and file a notice of motion, and lodge it at the local court.

If you are unsure which form to use or need help completing it, the registrars at your local court will be able to help you although they can’t give you legal advice.

If you have been issued with a subpoena and believe that it is unfair or not relevant to the legal matter in question, speak to an experienced criminal lawyer for advice about getting it set aside.

Setting aside a subpoena in NSW can be an onerous process, but if you are successful it could save you a lot of time, expense and inconvenience.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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