Subpoena to Produce Documents (Form 21A)

Order 36B of the Rules of the Supreme Court 1971 (WA) governs subpoenas. A subpoena to produce must be in Form 21A (r 3(1)(b)). It cannot be issued for documents already in the custody of a court (r 2(2B)(a)). In a proceeding where a defence is required, the defence must have been filed or the Court must have given leave. Where no defence is required, production must be at the trial unless leave is given, and leave needs exceptional circumstances (r 2(2B) to (2D)). The production date is the trial date or a date permitted by the issuing officer or a registrar (r 3(5)). The addressee can comply by attending, or by delivering or posting the documents to the Registry so they arrive at least 2 clear days before the production date (r 6(4)).

When you need it

• You need documents or things held by another party or a non-party, such as records from a bank, doctor or employer.
• The defence has been filed, or the Court has given leave (r 2(2B)).
• If you also need the person to give evidence, use Form 21B.

1. 1

   Heading, parties and addressee

   Delete General Division or Court of Appeal, enter the number and parties (extra parties in a schedule), and name one addressee by name or office (r 3(2) and (3)). For a company, the subpoena is complied with by its proper officer (r 3(9)).

2. 2

   Last date for service

   Insert a date 5 days before the production date unless the Court fixes another date (r 3(8)). For shorter notice, send a covering letter to the Principal Registrar with reasons (CPD 4.3.7 par 7).

3. 3

   Issuing details

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

4. 4

   Production date and delivery address

   Insert the date, time and place for production and keep only the relevant delivery address: the Supreme Court Registry at the David Malcolm Justice Centre, Level 11, 28 Barrack Street, or the Court of Appeal Office at Stirling Gardens.

5. 5

   Schedule of documents

   Describe each document or thing precisely and say whether any original is required. Unless originals are required, copies may be produced (r 6(6)).

• Present the subpoena for issue through eLodgment on the eCourts Portal (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)), with Form 22A attached to the front (r 10(3)) and, where production is not at trial, the PD 4.3.7.1 cover sheet (CPD 4.3.7 par 11).
• Serve a copy on each other party as soon as practicable, with the cover sheet if production is not at trial (r 4(2); CPD 4.3.7 par 12).
• For material produced otherwise than at a trial, a registrar may permit parties to inspect, copy or remove it only after the production date, subject to any request or directions under r 8A (r 9). Unless directions are given, no party can inspect it (CPD 4.3.7 par 15).

• Note 4 of the form says the addressee need not comply unless conduct money for reasonable expenses is handed or tendered a reasonable time before the production date.
• The addressee cannot comply by filing the documents electronically through the ECMS; they must be produced in person, delivered or posted (r 6(5A)).
• A broad or vague schedule invites an application to set the subpoena aside (rr 8A and 8B).