Policy Bulletin 2025/7: Civil Law policy - Subpoena to a complainant 

22 July 2025

The Legal Aid NSW Board has approved a new policy to make legal aid available to a complainant in sexual assault proceedings to object to a subpoena seeking the production of their personal records. 

Background

Legal Aid NSW provides legal advice and representation to victims of sexual assault and other ‘protected confiders’ who want to prevent or restrict the disclosure of counselling and other confidential therapeutic records in court. The sexual assault communication privilege applies in criminal and civil proceedings.

In recent years, Legal Aid NSW has occasionally assisted protected confiders to object to a subpoena seeking the production of personal records that are not counselling records. A person who is issued a subpoena to produce documents is entitled to ask the court to set aside or ‘read down’ a subpoena where it lacks a legitimate forensic purpose, will not materially assist in the case or is an abuse of process.   

Issues may arise where a subpoena seeks the entire contents of a complainant’s mobile phone (including messages, call logs, emails, calendar entries, contacts, photographs, social media posts, chat application history etc) or the mobile handset itself. 

What has changed?

The new policy provides that legal aid is available to complainants in sexual assault proceedings to object to a subpoena seeking the production of their personal records. Personal records may include diaries, journals, mobile phone or access to electronic evidence such as emails, social media or chat application history.

To be eligible for legal aid the applicant must satisfy the Merit Test. 

The new policy is published on Policy Online:

 

Start date

The change applies to applications determinedon or after 22 July 2025.

Contact

For further information contact the Client Eligibility Unit at: T-CEU@legalaid.nsw.gov.au.