Subpoena to give evidence (Form 4A)

Rule 48AB of the District Court Rules 2005 requires a subpoena to attend to give evidence to be in Form 4A with a Form 4B notice attached. In the District Court one subpoena cannot require both attendance and production (r 48AA), so a witness who must also bring documents needs a separate Form 4C. Order 36B of the Rules of the Supreme Court 1971 (WA) otherwise applies. An issuing officer can issue a subpoena to attend only where the evidence is needed at a trial or other listed proceeding and a date has been set (O 36B r 2(2A)). It must be served personally by the last date for service shown on it, with conduct money.

When you need it

• You need a witness to give oral evidence at the trial, an assessment of damages or another proceeding where attendance can be compelled, and the date has been set.
• The witness will not come voluntarily, or you need the protection of a court order (for example, for an employee who needs time off).
• If you also need documents produced, prepare a Form 4C subpoena as well (PNC 4.1.1).

1. 1

   Complete the heading

   Enter the action number, the plaintiff and defendant, and the registry if not Perth (note 1).

2. 2

   Name the addressee

   Give the full name and address of one person. A subpoena must not be addressed to more than one person and must identify the addressee by name or by office or position (O 36B r 3(2)-(3)).

3. 3

   Leave the issue and service dates

   The date of issue and the last date for service are fixed by the Court's issuing officers (PNC 4.2.4). The last date for service is generally 5 days before the date the witness must attend, unless the Court fixes another date (O 36B r 3(8)).

4. 4

   Insert the date, time and place

   Specify when and where the witness must attend (O 36B r 3(4)). The order requires them to keep attending day to day until excused or the hearing ends.

5. 5

   Complete the issuing details

   State the party requesting the subpoena and their service details. The Court asks for parties to be named by name rather than as 'plaintiff' or 'defendant' (PNC 4.2.5).

6. 6

   Attach Form 4B

   Attach the Form 4B notice to addressee (r 48AB(2)(b)). For service outside WA, also attach an FC 2 Notice to Witness (PNC 4.2.3).

• File the proposed subpoena with Form 4B through the ECMS (eCourts Portal) at least 14 days before the last date for service; later requests may not be issued (PNC 4.2.1, 4.4.1). Issuing officers review each request before issue (PNC 4.1.2).
• Serve the sealed subpoena, with Form 4B attached, personally on the witness by the last date for service (O 36B rr 4(1), 6(2)).
• Hand or tender conduct money, enough for the witness's reasonable expenses of attending and returning, a reasonable time before attendance. Without it the witness need not comply (O 36B rr 1, 6(1)).
• Serve a copy on each other party as soon as practicable after serving the witness (O 36B r 4(2)).

• Lodge early so the subpoena is issued in time. Ask the Court for subpoenas as soon as the trial dates are known.
• If the trial date changes, give the witness written notice of the later date, then file and serve a copy of the notice (O 36B r 5A; DCR r 48AC).
• A witness who is not a party may apply for their reasonable loss or expense of complying, on top of conduct money (Form 4B).