Subpoena to give evidence (Form 43A)

Division 24.2 of the Federal Court Rules 2011 governs subpoenas. A subpoena may be issued only with the leave of the Court (r 24.01), and a subpoena to give evidence must be in accordance with Form 43A (r 24.13(1)(a)). It must be addressed to one person, identify them by name or by office or position, and specify the date, time and place for attendance, which must be the trial date or another date the Court permits (r 24.13). The Subpoenas and Notices to Produce Practice Note (GPN-SUBP) explains how to ask for leave and what the Court expects about service and conduct money.

When you need it

• You need a person who will not come voluntarily to give evidence at a hearing or trial.
• You only need oral evidence. Use Form 43B to have documents produced, or Form 43C for both.
• The proceeding is in the Federal Court's general jurisdiction. Separate forms apply for New Zealand witnesses (Form 98A) and arbitrations (Form 55A).

1. 1

   Complete the heading and addressee

   Insert the proceeding details and the name and address of the witness. Use the schedule at the end for additional parties if needed.

2. 2

   Insert the last date for service

   This is 5 days before the attendance date unless the Court fixes another date (r 24.13(8)). The practice note describes it as 5 clear business days (GPN-SUBP para 4.6).

3. 3

   Insert your details

   Insert the name and address for service of the party asking for the subpoena. The issue date and the officer's signature are added when the Court issues it.

4. 4

   Set the attendance details

   Insert the date, time and place the witness must attend. The witness must keep attending from day to day until excused.

• Ask for leave orally at a hearing with a draft subpoena ready, or by eLodging the Request for Leave to Issue Subpoena form (NCF7) with the draft in Word format (GPN-SUBP paras 3.1 to 3.4). A fee applies to issue a subpoena; check the current fee schedule.
• Serve the issued subpoena personally on the witness by the last date for service (r 24.16(1)).
• Hand or tender conduct money sufficient for the witness's reasonable expenses of attending a reasonable time before the attendance date, or the witness need not comply (r 24.17(1)).

• Serve as early as possible, since the practice note discourages last-minute pre-trial subpoenas (GPN-SUBP para 2.4).
• If the hearing moves, you can give the witness notice of a later date or time, which replaces the date in the subpoena (r 24.14).
• A witness who fails to attend without lawful excuse is in contempt (r 24.23) and a warrant for arrest may be sought in Form 90 (r 41.05).