Subpoenas and Your School

In your role as principal, you will inevitably come across legal disputes in one form or other. You may be directly involved in the dispute or the dispute may involve members of your school community.

As part of the litigation and disputes process, the parties involved may seek to obtain and serve subpoenas to assist in their evidence gathering efforts. As any party with information relevant to a dispute can be subpoenaed to give evidence, it is possible that you or your school may be subpoenaed to give evidence. Accordingly, it is important that you are able to interpret and comply with a subpoena, as well as knowing your rights and ability to object.

We have prepared this short guide to provide some basic information on the nature of subpoenas and what you should do if you served are served with one.

What is a subpoena?

A subpoena is a legal document issued by a Court to an individual (or organisation), obliging them to give evidence or produce documents in a proceeding. A subpoena must be delivered in person to the intended recipient and should contain all necessary directions and information. Money to assist a party with complying with the subpoena (known as ‘conduct money’) must also be provided and will vary depending on the obligations of the recipient party.

A subpoena compels a party to do one of the following:

1. Attend Court to give evidence;
2. Produce documents to the Court;
3. Both attend Court to give evidence and produce documents to the Court.

A subpoena remains in force until it is complied with, the recipient is released by the Court of the obligations contained within, or the hearing/trial which the subpoena relates concludes.

What does a subpoena look like?

A subpoena is a formal court document and will bear:

• the formal details for the matter to which it relates;
• the orders the recipient is obliged to comply with (that is, which of the three types of subpoenas described above applies);
• the scope of the documents that must be produced;
• the relevant dates to attend or produce the documents by.

An example of a subpoena can be viewed here. The example relates to a subpoena served on a school in family law proceedings involving parents at the school.

How do I comply with a subpoena?

If you are issued with a subpoena you must comply with the obligations set out therein. Failure to comply with a subpoena may result in liability for costs and you may be arrested.

If you are asked to appear in Court, you must attend at the relevant court on the date and time set out in the subpoena. You may also be required to attend on subsequent days of the hearing/trial until it has concluded.

If you are asked to produce documents, you must produce a copy of the subpoena, along with the required documents to the address specified. You can either attend court to deliver these documents or post them to the Court at least two days before the required production date in the subpoena. If the issuing party consents, a copy of the documents may be provided, instead of the original document.

Grounds for objection

Whilst the recipient of a subpoena is legally required to comply, there may be grounds upon which to object to the requirements of the subpoena. There may be grounds for objection in the following circumstances:

• If the subpoena is incorrectly addressed (and the relevant documents are not in the possession of the addressee);
• If conduct money, at a minimum of $25, is not provided with the subpoena;
• If the order for documents is too broad or vague and amounts to a “fishing expedition”, in which the issuing party are attempting to find information that may help their case and they do not in fact have a specific use for the documents; or
• If some privilege or other protection over the documents exists, such as solicitor-client privilege.

However, even if you have valid grounds to object to a subpoena, you must still comply with it. When complying with the subpoena, you must bring your objections to the Court’s attention at that time. The Court will then determine whether the grounds for objection are valid.

How can Brennan Law Partners assist?

There are serious consequences for failing to comply with a subpoena. Therefore, it is important to know how to respond appropriately and you should seek legal advice.

If you are issued with a subpoena, contact us immediately so that we can assist you with complying or assessing whether there are reasonable grounds for you to object.

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