Have you recently been served a subpoena?
You may feel that the subpoena has problems associated with it or perhaps that the way it was served on you was inappropriate.
Consequently, you may be wondering whether you can object to the fact of being served the subpoena (NSW).
This is referred to as ‘setting aside a subpoena’ and can be done in certain circumstances.
What is a subpoena?
A subpoena is, in essence, a court requirement or order contained in a document.
It can be a court order to appear as a witness (known as a subpoena to give evidence) or a requirement that you produce certain evidence or documentary material (known as a subpoena for production) or even a subpoena requiring you to appear in court and produce documents.
Are you required to answer a subpoena (NSW)?
Being served a subpoena in NSW is subject to strict legal rules: rules about time, rules about service, rules about particulars for documents etc.
You may be right in thinking there are problems associated with your subpoena because certain rules have not been followed.
For these reasons, you may be able to set aside a subpoena (NSW) before having to comply with the order contained in it.
Checklist on the legal rules
1. How a subpoena can be served
A subpoena must be served on the person named in the subpoena.
The following methods of service are acceptable:
a) Leaving it with you (the person named in the subpoena);
b) If you are in prison, leaving it with the general manager of the prison, or sending it by post, facsimile or other electronic transmission to the general manager of the prison;
c) Sending it by post or facsimile to your home address;
d) Sending it to your email address; or
e) If your lawyer consents, leaving it at your lawyer’s ‘address for service’ or sending it to that address by post or facsimile or emailing it to your lawyer’s email address (Local Court Rules rule 6.4).
If you decide to take no issue with the way you were served, then by complying with the subpoena there is an implied acceptance of the way it was served.
It is worthy to note that if you do refuse to accept service of a subpoena, the person serving it can put it down on the ground in your presence after you’ve been put on notice of its nature (Local Court Rules rule 6.4, Uniform Civil Procedure Rules rule 10.21) and it will be deemed to have been served.
If you are served a subpoena for production it is important that the party serving it provide you with what is called conduct money (s224 Criminal Procedure Act (NSW)). This is payment for any reasonable expenses you are likely to incur in complying with the subpoena. This conduct money ought to be provided at the time of service or alternatively within a reasonable time.
2. Time limit
Typically a subpoena to appear in court must be served within a reasonable time and at least 5 days before the day requiring you to appear (Criminal Procedure Act s223).
A subpoena for production of documents must normally allow you at least 21 days before producing the required material (Criminal Procedure Act s222).
A party may apply for short service of a subpoena; in other words, to allow less time to comply.
You may choose to dispute that short service and you are entitled to defend it in court: typically on grounds of impracticality and unreasonableness.
3. Subpoena is an abuse of process or is oppressive
The subpoena may seem like it is requiring you to produce a wide volume of material and this material may not necessarily be associated with the hearing.
This is referred to by lawyers as a ‘fishing expedition’. That is, the subpoena is served to try and discover what documents you may have to strengthen their case. This is not appropriate. The subpoena must ask for specific type of documents. (R v FCT; Ex parte Swiss Aluminium Australia Ltd (1986) 13 FCR 66; NSW Commissioner of Police v Tuxford  NSWCA 139 cited in Criminal Law Guide).
The subpoena for production may also seem to place an undue pressure or burden on you because the documents are not specified with particularity (Spencer Motors Pty Ltd v LNC Industries Ltd  2 NSWLR 921 cited in Criminal Law Guide).
These are grounds for setting aside a subpoena.
However, it may not always result in the actual setting aside of the entire subpoena – it may force the party serving the subpoena to narrow down the scope of their search and particularise which documents are required. This, in real terms, can alleviate the burden of complying with the subpoena.
When you are asked to produce documents under the order of a subpoena, all parties to the litigation or action will be allowed to inspect the material.
So, there are mechanisms in place by which you can defend against a subpoena. You can object to the way it was served, or allow yourself more time to comply with the subpoena if the time limits were not met, or alleviate the burden of complying with the subpoena by requiring the other party to specify with better particularity.
You can contact a criminal defence lawyer for specific advice as to whether you may be able to set aside a subpoena served upon you, and how to do it.