Subpoena notice - evidence (Form 4B)

In the District Court, rule 48AB of the District Court Rules 2005 (WA) requires a subpoena to attend to give evidence to be in Form 4A with a notice in the form of Form 4B attached. The notice tells the witness that failing to comply without lawful excuse is a contempt of court, that they need not comply unless served by the last date for service or with conduct money, and that a non-party may apply for reasonable loss or expense. Those statements reflect Order 36B of the Rules of the Supreme Court 1971, which the District Court applies with the changes in Part 5BA of its rules. A subpoena to produce documents is a separate form (Form 4C).

When you need it

• You need a person to come to court and give oral evidence at the trial or another hearing listed in your District Court case.
• A date has been set for the trial or hearing. An issuing officer must not issue a subpoena to attend unless the evidence is needed at a trial or other listed proceeding and a date has been set (RSC O 36B r 2(2A)).
• You are preparing Form 4A. Form 4B always goes with it (DCR r 48AB(2)(b)).
• If you also need the witness to produce documents, prepare a separate Form 4C subpoena. In the District Court one subpoena cannot require both (DCR r 48AA; PNC 4.1.1).

1. 1

   Complete the heading

   Enter the action number and the plaintiff and defendant, matching the Form 4A it accompanies. If the case is not held at Perth, state the location of the relevant registry (note 1 to Form 4B).

2. 2

   Leave the notice text as it is

   Paragraphs 1 to 6 (contempt of court, last day of service, informal service, conduct money, and losses or expenses) are prescribed wording. Do not edit or remove them.

3. 3

   Prepare the Form 4A subpoena

   On Form 4A give the addressee's full name and address, the date, time and place of attendance, and the issuing party's service details. The last date for service is fixed by the Court's issuing officers (PNC 4.2.4) and must be stated on the subpoena (RSC O 36B r 3(8)).

4. 4

   Attach the notice

   File the proposed subpoena (Form 4A) with the Form 4B notice through the ECMS (PNC 4.2.1). If the subpoena is to be served outside Western Australia, also attach a Notice to Witness in the form of FC 2 (PNC 4.2.3).

• File the proposed Form 4A subpoena with the Form 4B notice through the ECMS; since 15 January 2024 subpoenas can be filed through the eCourts Portal. The Court's issuing officers review the request before issuing it (PNC 4.1.2 and 4.2.1).
• Serve the sealed subpoena, with Form 4B attached, personally on the addressee (RSC O 36B r 4(1)).
• The last date for service is generally 5 days before the earliest date the witness must comply, unless the Court fixes another date (O 36B r 3(8)). A witness need not comply if served after that date, unless they actually knew of the subpoena and its requirements by then (O 36B r 6(2) and (3)).
• Hand or tender conduct money, enough to cover the witness's reasonable expenses of attending and returning, a reasonable time before the attendance date (O 36B rr 1 and 6(1)).
• As soon as practicable after service, serve a copy of the subpoena on each other party (O 36B r 4(2)).

• Serve early. If you serve after the last date for service, the witness need not comply.
• Do not forget conduct money. Without it the witness need not attend (O 36B r 6(1)).
• Name parties by name rather than by status ("Jane Citizen", not "the plaintiff"), as the Court's practice note asks for proposed subpoenas (PNC 4.2.5).
• If the trial date moves, the issuing party can give the witness written notice of a later date, then file and serve a copy of that notice (O 36B r 5A; DCR r 48AC).