Subpoena to give evidence and produce documents (Form 43C)

In the Federal Court a subpoena may be issued only with the Court's leave (r 24.01 of the Federal Court Rules 2011). A subpoena to give evidence and produce documents must be in accordance with Form 43C (r 24.13(1)(c)), addressed to one person, identifying the documents and specifying the date, time and place for attendance and production (r 24.13). The current Form 43C (January 2023) includes the notes to the addressee and a declaration by the addressee saying whether any documents produced are originals, which r 24.17(7A) requires. Producing the documents early does not excuse the addressee from attending to give evidence (r 24.17(5)).

When you need it

• You need a witness to come to court to give evidence and to bring documents or things.
• You have leave of the Court, or are seeking it, to issue the subpoena (r 24.01).
• Use Form 43A for evidence only and Form 43B for documents only.

1. 1

   Complete the heading and addressee

   Insert the proceeding details and the name (or office or position) and address of the one person it is addressed to (r 24.13(2), (3)).

2. 2

   Insert the last date for service and your address

   Insert the last date for service, which is 5 days before the earliest compliance date unless the Court fixes another date (r 24.13(8)), and your name and address for service. The issue date and officer's signature are added by the Court.

3. 3

   Set the attendance and production details

   Insert the date, time and place for giving evidence and for production, and the registry address to which documents may be delivered or posted.

4. 4

   List the documents

   Complete the Schedule of documents with reasonable particularity. The practice note warns that broad or 'fishing' categories may not get leave (GPN-SUBP para 6.1).

5. 5

   Leave the declaration for the addressee

   The addressee completes the 'Declaration by Addressee' and, if seeking return of originals, the schedule of documents to be returned.

• Seek leave orally at a hearing or by eLodging the Request for Leave to Issue Subpoena form (NCF7) with the draft subpoena in Word format (GPN-SUBP paras 3.1 to 3.5). A fee applies to issue a subpoena; check the current fee schedule.
• Serve the issued subpoena personally on the addressee by the last date for service (r 24.16(1)), with conduct money a reasonable time before attendance (r 24.17(1)).
• Serve a copy on each other party as soon as practicable after serving the addressee (r 24.16(2)).
• The addressee may produce by delivering the documents to the Registrar at least 2 clear business days before the date, but must still attend to give evidence (r 24.17(4), (5)).

• Work out conduct money realistically, including travel, as the practice note expects a common sense approach (GPN-SUBP para 5.3).
• The issuing party can give notice of a later date or time, which then replaces the date in the subpoena (r 24.14).
• Copies may be produced unless originals are specifically required, including electronic copies in the formats listed in Note 9.