Subpoena to Give Oral Evidence and Produce Documents (Form 21B)

Order 36B of the Rules of the Supreme Court 1971 (WA) governs subpoenas. A subpoena both to attend to give evidence and to produce must be in Form 21B (r 3(1)(c)). Both sets of conditions for issue apply. For the evidence part, the addressee's oral evidence must be needed at a trial, an assessment of damages, a trial before a referee, an examination or another proceeding where attendance can be enforced by subpoena, and a date must have been set (r 2(2A)). For the production part, in a proceeding where a defence is required, the defence must have been filed or leave given (r 2(2B)). Producing the documents early does not discharge the obligation to attend and give evidence (r 6(5)).

When you need it

• You need a witness to give evidence at the trial and to bring specified documents or things.
• A trial or hearing date has been set (r 2(2A)).
• If you need only documents, use Form 21A; if you need only oral evidence, use Form 21.

1. 1

   Heading, parties and addressee

   Delete General Division or Court of Appeal, enter the number and parties (extra parties in a schedule), and give one addressee's name or office and address. A subpoena cannot be addressed to more than one person (r 3(2) and (3)).

2. 2

   Last date for service

   Insert a date 5 days before the earliest date on which the addressee must comply, unless the Court fixes another date (r 3(8)).

3. 3

   Issuing details

   Give the issuing party's name, address for service under O 71A r 3 and email. Leave the date of issue and seal for the Court.

4. 4

   Attendance details

   Insert the date, time and place at which the addressee must attend to give evidence (r 3(4)).

5. 5

   Production details and schedule

   Insert the production date, time and place, choose the delivery address (General Division Registry or Court of Appeal Office), and list the documents or things in the schedule, stating whether any original is required.

• Present the subpoena for issue through eLodgment on the eCourts Portal. A copy printed from the ECMS may be treated as an authenticated copy (r 2(3A)). The Court's forms page lists 2 copies. Check the General Division fee schedule for any fee.
• Serve it personally on the addressee by the last date for service (r 4(1); r 6(2)), with Form 22A attached to the front (r 10(3)) and, if production is not at trial, the PD 4.3.7.1 cover sheet (CPD 4.3.7 par 11).
• Hand or tender conduct money a reasonable time before the attendance date (r 6(1)).
• Serve a copy on each other party as soon as practicable after serving the addressee (r 4(2)).

• Tell the witness clearly that delivering the documents to the Registry early does not excuse them from attending to give evidence (r 6(5)).
• You may give the addressee notice of a later date or time; file the notice and serve it on the other parties (r 5A).
• The addressee or another person with a sufficient interest can ask the Court to set the subpoena aside, usually by letter to the Principal Registrar (rr 8, 8A and 8B).