Most people will never deal with a subpoena until one unexpectedly arrives. Someone might hand it to you at work, deliver it to your home, or serve it on your business with little explanation beyond a court seal and a deadline. Some people feel immediate concern. Others feel confusion. What is this document? Why are you involved? What happens if you do nothing?
A subpoena is one of the most serious procedural tools a court can use. It is a formal court order that compels a person or organisation to assist the court by providing evidence. That assistance may involve attending court to give evidence under oath, producing documents or other material, or doing both. Unlike a request from another party, a subpoena carries the authority of the court itself. Ignoring it is not an option.
In New South Wales criminal proceedings, subpoenas are governed by Part 3 of the Criminal Procedure Act 1986 (NSW), together with the Local Court Rules 2009 (NSW). These laws exist for a clear reason. Courts cannot decide cases fairly if third parties hold relevant evidence in their records. Banks, employers, hospitals, phone companies, accountants, and government agencies often hold information that is critical to determining what actually happened. Subpoenas allow courts to access that information while still placing strict limits on how far those powers can go.
Importantly, being subpoenaed does not mean you are suspected of wrongdoing. Most subpoena recipients are neutral third parties who simply happen to hold information relevant to a dispute. The subpoena process is about evidence, not blame.
Why subpoenas are controlled and not issued lightly?
Although subpoenas are powerful, they are not unlimited. Courts in NSW actively supervise subpoenas to prevent misuse and abuse. This supervision protects third parties from unnecessary involvement in legal proceedings and from excessive demands.
The key legal safeguard is the requirement that every subpoena serve a legitimate forensic purpose. This means the issuing party must explain how the documents or evidence sought connect to an issue the court must decide. It is not enough that the material might be interesting or potentially useful.
In Attorney-General for New South Wales v Chidgey [2008] NSWCCA 65, the NSW Court of Criminal Appeal made clear that relevance alone is insufficient. A subpoena issued simply to see whether documents might help is improper. Courts will not allow subpoenas to be used as fishing expeditions.
This principle was articulated at the highest level in Alister v The Queen (1983) 154 CLR 404. The High Court explained that it must be ‘on the cards’ that the material sought will materially assist the case on an identified issue. The issuing party does not need certainty, but there must be a reasonable basis for believing the evidence will matter. This test ensures subpoenas are targeted, justified, and proportionate.
Courts also consider whether a subpoena is oppressive. A subpoena may be oppressive if it demands an unreasonable volume of material, lacks specificity, or imposes an unfair burden on the recipient in terms of time, cost, or disruption. Even where a subpoena has a legitimate purpose, the court may limit its scope to reduce unnecessary impact on third parties.
Another important limitation arises through public interest immunity under section 130 of the Evidence Act 1995 (NSW). Courts may refuse access to documents where disclosure would harm broader public interests. This includes law enforcement operations, national security, or sensitive government functions. These decisions involve careful balancing by the court and highlight that subpoenas are always subject to judicial control.
What happens if a subpoena Is ignored or mishandled?
Since a subpoena is a court order, the consequences of ignoring it can be serious. Courts rely on subpoenas to ensure they have access to all relevant evidence. If subpoenas could be disregarded, the justice system would not function effectively.
If a person fails to comply with a validly issued and served subpoena without a reasonable excuse, the court may treat that failure as contempt of court. Under the Criminal Procedure Act 1986 (NSW), the court may issue a warrant for arrest, require the person to attend court to explain the non-compliance, or in extreme cases order short term detention until the person complies with the subpoena. Courts rarely exercise these powers, but they exist for a reason.
That said, subpoenas must themselves comply with the law. Section 223 of the Criminal Procedure Act requires a party to serve a subpoena within a reasonable time and at least five days before the compliance date, unless a registrar authorises otherwise. A party that does not properly serve a subpoena risks the court finding it invalid and unenforceable. Identifying defects in service is often one of the first issues lawyers examine.
Recipients are entitled to conduct money, and the issuing party must offer it at the time of service. Conduct money covers reasonable costs of compliance, including travel, copying, and administrative time. If the issuing party does not offer conduct money, the recipient may not have to comply unless the court orders otherwise. This reflects the principle that third parties should not bear financial loss simply for assisting the court.
How law firms such as Jake McKinley protect clients in subpoena matters?
For clients, the most important takeaway is that subpoenas are not something to deal with alone. Lawyers ensure parties exercise subpoena powers lawfully and fairly.
When a client receives a subpoena, a lawyer checks that the court validly issued it, that someone properly served it, and that the issuing party provided conduct money. They will review the scope of the subpoena to determine whether it satisfies the legitimate forensic purpose requirement, overly broad or poorly targeted subpoenas are often vulnerable to challenge.
Lawyers also advise on legal professional privilege, which protects confidential communications between lawyers and clients from compulsory disclosure. Privilege issues can be complex, particularly where documents contain mixed content. Lawyers also assess whether public interest immunity applies, especially in matters involving sensitive government or investigative material.
Where appropriate, lawyers can apply to have a subpoena set aside wholly or in part under section 227 of the Criminal Procedure Act 1986 (NSW). Courts take such applications seriously and will balance the interests of justice against the burden imposed on the recipient. In some cases, the court may order the issuing party to pay costs if it finds the subpoena improper.
For clients who need evidence held by third parties, lawyers draft subpoenas with precision and clear justification. A well drafted subpoena is more likely to secure enforcement and less likely to cause delay or dispute.
Conclusion
Ultimately, subpoenas are a necessary part of the justice system, but they are also a source of risk if misunderstood or mishandled. When you understand what the court can require, what your rights are, and how lawyers can assist, you can respond confidently and appropriately when the court exercises its subpoena powers.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article written by Zeeniyar Mehta (PLT).
