Subpoenas

Subpoenas are legal documents compelling a witness to attend court to give evidence, or a person (or company) to produce documents for evidence.

Civil proceedings

Our Civil division uses four types of subpoenas:

Orders of note

  • Order 42A. Form 42AA Subpoenas can be inspected and photocopied in accordance with the Rules. Please refer to Rule 42A for further information
  • Order 42A.02. Requires the addressee to produce the document identified in the subpoena to the Registrar on or before a day specified by the Registrar in the subpoena
  • Order 42A.03. A Subpoena under this order shall be in Form 42AA.

Criminal proceedings

Our Criminal division uses three types of subpoena:

As of 1 January 2018, Criminal Subpoenas for production of documents can be issued using Form 1E and Form 1EA. A Notice to Addressee and Declaration is not required, and this notice is included in the Notes section on the prescribed forms

Documents produced under a subpoena in criminal proceedings can only be released according to the Judge's order.

To arrange a subpoena release, contact the relevant list:

Sexual offence-related proceedings

Subpoenas Containing Confidential Communications (pursuant to 32C of the Evidence (Micellaneous Provisions) Act 1958)

Pursuant to 32B(1) of the Evidence (Miscellaneous Provisions) Act 1958 (“EMP Act”), confidential communication refers to any oral or written communication that has been made in confidence by a person against whom a sexual offence has been or has been alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship, including before or after the acts constituting the offence occurred or are alleged to have occurred.

If you are seeking to issue a subpoena that contains or may contain confidential communications, an application process is required to be followed pursuant to 32C of the EMP Act. The procedure does slightly differ depending on whether the matter is a civil proceeding or a criminal proceeding. Please see the information below regarding the application process for both civil and criminal proceedings.

Civil Proceedings

Please refer to 41, 42 and 43 of the Common Law Division – Operation of Lists and Management of Proceedings within the Common Law Division Practice Note (Ref. PNCLD 2-2018). Please note, a Form 42B must be used as the draft subpoena as leave of the Court is required to view this type of material.

Criminal Proceedings

Please refer to 24 of the County Court Criminal Division Practice Note (Ref. PNCR 1-2015). Please note, the draft subpoena must be attached to the back of your application when filing via eLodgement.

Serving a Subpoena

Service of the subpoena is effective only if the period between service and the last day the subpoena can be complied with is:

  • five working days, or
  • a shorter period the court of issue or the authority of issue has allowed.

Inspecting subpoenaed material

To inspect a 42AA Subpoena, please contact the Subpoena section of the County Court Registry directly on 03 8636 6525.

To inspect 42B/42C Subpoenas, parties to civil proceedings can apply to the subpoena team of the County Court Registry for permission to view and copy. Application is to be made via email to subpoenas@countycourt.vic.gov.au.

Please ensure the subject line of the email states '42B/42C inspection request of _________'

The request must:

  • include the case number
  • include the names of parties
  • include a list of which 42B/42C Subpoenas you wish to have access to
  • be CC’d to all other active parties to the proceeding.

If the request is by consent, it must be signed by all active parties to the proceeding. If not by consent, the request must be signed by the applicant party.

If the request involves medical records, the plaintiff will be given first priority to inspect the records and make any objections. If no objections are received within the time period specified in the response to your request, the defendant will be given the opportunity to inspect the records.

Once granted, a request to book an appointment to inspect the subpoenaed records can be made. See the Contacts section below.

If the case involves a self-represented litigant or objections are filed in the proceeding, the matter will be referred to a Judicial Registrar.

Rules for interstate subpoenas

Service of the subpoena is effective only if the period between service and the last day the subpoena can be complied with is:

  • 14 calendar days, or
  • a shorter period the court of issue or the authority of issue has allowed.

The last date for service is 14 days before the production date (a Form 2 may be attached). If the subpoena does have a Form 2 attached, it can still be issued. There is only a requirement in the Service & Execution of Process Act that the notice be served.

For example, if today is 1 August and subpoenas are issued today, the production date is 22 August. The last date for service is 14 days before (8 August).

2019 Christmas period

The County Court has prepared the following documents to help calculate subpoena dates during the vacation period beginning on 24 December 2019 to 9 January 2020 (as per Rule 3.04 of the County Court Civil Procedure Rules 2008).

Please refer to the documents below for both Victorian and Interstate calculation of subpoena dates.

Contact

How do I make a subpoena inspection appointment?

For an appointment to inspect or copy of subpoenaed material, contact the Subpoena team on 03 8636 6525.

How do I file an objection?

To file an objection (not a response to a subpoena) please email the subpoena team at subpoenas@countycourt.vic.gov.au or contact them on 03 8636 6525.

How do I respond to a subpoena request?

To submit documentation in response to a subpoena request, mail copies of that material to the court location and address included on the second page of the subpoena request.

Subpoenas are used when a person or organisation is unwilling or unable to meet the request voluntarily. The person served with the subpoena is required by law to comply with it.

The party seeking the subpoena should first attempt to get the required document or evidence themselves before making their request to the Court. As a subpoena is an order of the Court, the respondent must produce any documents directly to the Court.

Subpoenas fall into three categories:

  1. A subpoena to give evidence compels the witness to attend court and provide evidence at a particular hearing.
  2. A subpoena to produce documents compels the witness to provide the Court with any documents named in the subpoena - however, it cannot compel a witness to create a document.
  3. A subpoena to produce documents and to give evidence – however, this type of subpoena should not be sought if production of the document(s) would be sufficient.

Strict rules govern the serving and use of subpoenas. A subpoena cannot be addressed to more than one person, and an addressee must be identified by name or position. A subpoena must also identify the document to be produced and specify the date, time and place of production and the last date for service.

Guide to subpoenas

This guide is provided to assist you to issue the correct subpoena or make an appointment to inspect and/or photocopy subpoenaed material.

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Page last updated: 17 September 2019