Subpoena to attend to give evidence (Form 42A)

Under Order 42 of the Magistrates' Court General Civil Procedure Rules 2020 (Vic), the court may by subpoena order a person to attend to give evidence (r 42.02(1)(a)), and a principal registrar, registrar or deputy registrar may issue it (r 42.02(1A)). A subpoena to attend to give evidence must be in Form 42A (r 42.03(1)(a)), may be addressed to any number of people (r 42.03(2)(a)), and must specify the date, time and place for attendance, which is the hearing date unless the court orders otherwise (r 42.03(5), (6)). Failing to comply without lawful excuse is a contempt of court (s 134 of the Magistrates' Court Act 1989).

When you need it

• You need a witness to give evidence at the hearing of a civil proceeding and they will not, or may not, come voluntarily.
• The witness needs a formal order to get time off work or to attend.
• If you need the witness both to attend and to bring documents, use Form 42C instead (r 42.03(1)(c)).

1. 1

   Heading and addressee

   Fill in the court number, venue and parties, then the witness's name (or office or position) and address (r 42.03(3)).

2. 2

   Last day for service

   Insert the last day for service: a reasonable time before the date the witness must attend (r 42.03(8)). Note 1 tells the witness they need not comply if served after it.

3. 3

   Issuing party details

   Insert the date, the party who asked for the subpoena, and that party's address for service and email.

4. 4

   Attendance details

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

5. 5

   Leave the notes intact

   The printed notes explain conduct money, applications to set aside, and loss or expense claims.

• Prepare the subpoena and file it with the registry for issue; it is issued when the registrar signs it (r 42.02(3)). A fee may apply - check the current fee schedule.
• Serve it personally on the witness (r 42.05(1)) on or before the last day for service. The witness must comply anyway if, by that day, they have actual knowledge of it and its requirements (r 42.06(3)).
• Give or tender conduct money (enough for reasonable travel to court and back) a reasonable time before the attendance date, or the witness need not comply (r 42.06(1)).
• If the date or time changes, you can give the witness notice of a later date or time, which then takes effect (r 42.03.1).

• Keep proof of service (an affidavit of service, Form 6A) and a record of the conduct money you provided and when.
• A witness who is not a party can ask the court to order you to pay their reasonable loss or expense of complying, on top of conduct money (r 42.11).
• The witness, a party or anyone with sufficient interest can apply on notice to you to set the subpoena aside (r 42.04).