Subpoena to Give Oral Evidence (Form 21)

Order 36B of the Rules of the Supreme Court 1971 (WA) governs subpoenas. A subpoena to attend to give evidence must be in Form 21 (r 3(1)(a)). It can be issued only if the addressee's oral evidence is needed at a trial of substantive issues, an assessment of damages, a trial before a referee, an examination before an examiner, or another proceeding where attendance can be enforced by subpoena, and a date has been set for it (r 2(2A)). Leave is not usually needed (CPD 4.3.7 par 5). The subpoena must name one addressee, by name or by office or position (r 3(2) and (3)), and specify the date, time and place of attendance (r 3(4)).

When you need it

• You need a witness to give evidence at the trial who will not, or may not, attend voluntarily.
• A trial or hearing date has already been set (r 2(2A)).
• If the witness must also bring documents, use Form 21B. For documents only, use Form 21A.

1. 1

   Heading and parties

   Delete General Division or Court of Appeal, enter the proceeding number and the parties. If there is more than one of any party, list the extras in a schedule.

2. 2

   Addressee

   Give the witness's name and address, or the office or position held.

3. 3

   Last date for service

   Insert a date 5 days before the date the witness must attend, unless the Court fixes an earlier or later date (r 3(8)).

4. 4

   Issuing details

   Give the name of the party requesting the subpoena, its address for service under O 71A r 3 and email. Leave the date of issue and seal for the Court.

5. 5

   Attendance details

   Insert the date, time and place for attendance. The form tells the witness to keep attending from day to day until excused or the hearing ends. Do not change the notes.

• 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 the subpoena personally on the witness on or before the last date for service (r 4(1); r 6(2)).
• Hand or tender conduct money sufficient for the witness's reasonable expenses of attending and returning a reasonable time before attendance is required (r 1(1); r 6(1)).
• Serve a copy on each other party as soon as practicable after serving the witness (r 4(2)).

• A witness need not comply without conduct money or if served after the last date for service (r 6(1) and (2)). Keep evidence of both.
• A witness with actual knowledge of the subpoena by the last date for service must comply even without personal service (r 6(3)).
• If the trial is moved, give the witness notice of the later date or time and file and serve the notice (r 5A).