Apply for a subpoena in your AVO case (defendant)

Information about how to apply for a subpoena to get evidence for, or a witness to attend, your AVO hearing, if you are defending an AVO.

What type of subpoena you need

There are three types of subpoenas:

Subpoena for production - this is a court order that requires a person to produce documents
Subpoena to give evidence - this is a court order that requires a person to attend a hearing to give evidence. You would use this form to get a witness to attend the hearing.
Subpoena for production and to give evidence - this is a court order that requires a person to produce documents and attend a hearing to give evidence. You would use this form if you wanted someone to produce documents and give evidence at the hearing.

You need one form for each subpoena.

How to apply

You can get subpoena forms from:

your nearest Local Court registry, or
the Forms page on the Local Courts website.

You should address the subpoena to the witness you want to attend or the person you want to produce documents.

If you want to get documents from an organisation or company, you should:

address the subpoena to the 'Proper Officer'
include the registered address of the organisation or company.

If you are filling out a Subpoena for production, it is important that you clearly describe the documents or things the person needs to produce to the court. If your request is too vague or broad, the person might object and the court might order that the person doesn’t have to comply with the subpoena.

For instructions on how to complete this form and an example of a completed form, see:

Subpoena for production

Subpoena to give evidence

Subpoena for production and to give evidence

Using AI to prepare documents

Check the Uniform Civil Procedure Rules 2005 before using a generative artificial intelligence (AI) program such as ChatGPT to prepare documents for the Local, District or Supreme Court of NSW. These Rules permit AI use in some documents, such as submissions or reports, but you must include a statement that all citations, legal authorities and case law referred to exist and are accurate and relevant to the proceedings. The District Court and the Supreme Court also have Practice Notes which permit AI use for some types of documents, such as chronologies and indexes.

Under the Rules, you must not use AI in your affidavit or witness statement, and these documents must include a statement that AI was not used to generate the content. You must not put any confidential information about your matter into an AI program. If you are unsure or feel the Court should let you use AI due to exceptional circumstances, get legal advice.

Apply for a short service order

Sometimes, you might need to apply for an extension of time for the service of a subpoena. For example, you find out about new evidence a few days before your hearing date and you don’t have time to comply with the standard rules.

A court may order short service if it is satisfied that it is in the interests of justice to do so. Any order made for short service must be attached to the subpoena and served.

To apply for an order for short service, you will need to complete:

a Notice of Motion, and
an Affidavit in support of your application.

You can get blank copies of these forms from:

your nearest Local Court registry, or
the Uniform Civil Procedure Rules Civil Forms website.

You can file your subpoena in person, by post, fax or email.

You need to file three copies of each subpoena.

You don’t have to pay a fee to file a subpoena.

A court may order short service if it is satisfied that it is in the interests of justice to do so. Any order made for short service must be attached to the subpoena and served.

The Court will fill in the date that the documents have to be provided by and/or the date to attend the hearing. The Court will also fill in the last date for service.

For instructions on how to complete this form and an example of a completed form, see:

Notice of motion

Affidavit

Serve the subpoena

The subpoena must be served on (given to) the person it is addressed to on or before last date for service.

A person doesn’t need to comply with a subpoena if it is served out of time.

You can pay for a professional process server to serve the subpoena or do it yourself.

You can serve a subpoena by:

handing it to the person it is addressed to
emailing it to them, or
posting or faxing it to their residential address.

When you serve the subpoena you must also give the person or organisation you are serving with the subpoena some money, called 'conduct money'.

The amount of money must be enough to cover the cost of travelling to and from the court or the cost of looking for, photocopying and sending the documents to the court. 

The recipient doesn’t have to comply with a subpoena unless they are given or offered conduct money a reasonable time before they need to attend court. You may be ordered by the court to pay the amount requested by the person subpoenaed.

Before you serve your subpoena, you should contact the subpoenaed person to find out how much conduct money they will require to comply with the subpoena.

The amounts which can be claimed are based on rates set by legislation. For the latest Scale of Allowances Paid to Witnesses, see the circular C2023-02 Meal, Travelling and Other Allowances for 2023-24 on the NSW Government website.

Statement of service

The person who served the subpoena needs to fill out and signed the Statement of Service at the bottom of the subpoena.

Their signature must be witnessed.

Return date of the subpoena

The return of subpoena date is the day the court has ordered for the person or organisation in the subpoena to:

bring the documents to court, or
attend to give evidence.

It is written on the subpoena.

The documents requested under a Subpoena for Production can be posted to the court but they must arrive by the return date.

On the return date, you should go to the court registry and ask for leave (permission) to look at and/or make copies of the documents. Sometimes the Registrar can give you access and sometimes you may need to ask the Judge for leave to look at and/or make copies. You usually can't take the produced documents away from the courthouse without a court order.

If the court has given you leave to look at and/or copy the documents, you can do this on the return date or come back on another day.

You should check with the court how much they will charge to make photocopies of the documents if you have been given permission to copy them.

If the person or organisation that has been served with the subpoena can't find the documents you are asking for, they will need to tell the court that they haven't been able to find the documents.

The person the subpoena is addressed to may object to providing the documents or attending to give evidence. They can ask the court to set aside the subpoena. If this happens, you will be served with a copy of their application and get a chance to explain to the court why you need the documents and/or witness and how they are relevant to your case.

If a witness does not comply with a subpoena, the court may issue a warrant for their arrest and have them brought before the court.