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Served with a Subpoena to Attend to Give Evidence?

Served with a Subpoena to Attend to Give Evidence?

Published on March 22, 2016 by Selwyn Black , Adrian O’Dea and Greg McAllister

If you have been served with a Subpoena to attend to give evidence you might be unsure as to what your obligations are.

In New South Wales, failure to comply with a subpoena without lawful excuse may be considered contempt of court, and can lead to your arrest under section 97 of the Civil Procedure Act 2005 (NSW).

It is worth carefully looking at the subpoena to ensure that the serving party has complied with the necessary requirements. For example, in New South Wales, unless the Court orders otherwise (pursuant to rule 33.3 of the Uniform Civil Procedure Rules 2005 (NSW), the subpoena must be served on you 5 clear days before the day that you are required to attend Court.  Further notice may be required for witnesses who are interstate. The subpoena must also specify the date, time and place for you to attend.  There may be a continuing requirement to appear on days following the date specified in the subpoena.

When issued with the subpoena, you should be provided with “conduct money” to meet your reasonable expenses of attending Court. Sometimes a nominal amount in the order of $30.00 is provided with the subpoena. For the purposes of a Subpoena to Attend and Give Evidence, conduct money means “a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending” – see rule 33.1 of the Uniform Civil Procedure Rules 2005 (NSW).

Conduct money of $30.00 may not be sufficient to meet your reasonable expenses to attend Court. It might be necessary for you to travel some distance to attend Court and you may require accommodation. Your attendance may also result in lost wages. If you are not a party to the proceedings you may be able to claim these additional costs as reasonable expenses incurred in complying with the subpoena. In addition, it may also be possible for you to claim legal expenses as being a reasonable expense in complying with the subpoena, particularly if there are questions of privilege, confidentiality or commercial sensitivity surrounding the issues you are likely to be questioned on in Court.

If you wish to make a claim for your additional reasonable expenses, it is best to write to the party (usually their solicitors) who served the subpoena outlining what your anticipated costs of compliance with the subpoena are likely to be. It is important to bear in mind that even if you are unable to reach an agreement on the amount of costs with the party who served the subpoena on you, you should still comply with the subpoena. If you are unable to fully quantify your reasonable expenses it may be beneficial to obtain from the issuing party a written undertaking that you will be reimbursed your reasonable expenses of complying with the Subpoena. If you are unable to reach an agreement with the issuing party as to what your reasonable expenses are, the appropriate course may be to make an application in accordance with rule 33.11 of the Uniform Civil Procedure Rules 2005 (NSW) seeking payment of the disputed amount.

Failing to properly respond to a Subpoena to Attend to Give Evidence may have serious consequences and it is important that you understand your rights and obligations. If you are unsure what to do after a Subpoena to Attend to Give Evidence has been served on you, it is important that you seek legal advice.

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