NSW UCPR [Form 26A] Subpoena to Produce

When is a NSW UCPR [Form 26A] Subpoena to Produce with Subpoena Notice & Declaration used?

See UCPR Part 33 and 42.33 for more information.

Document Overview:

✅ Suitable for the NSW Courts under the Uniform Civil Procedure Rules (NSW) 2005;

✅ Recommended only for use by legal professionals +/or at a minimum with review by a legal professional prior to filing with the Court;

✅ For use in all NSW Court registries for all NSW Courts including Local (General & Small Claims), District (All Lists^), Supreme (Common Law & Equity Divisions) and all Appeals to the NSW Court of Appeal.

Embedded Lawyer-Logic™ dynamically adapts to your answers to provide valuable guidance and help you avoid errors.

Nationally Harmonised Subpoena

The NSW UCPR and this [Form 26A] Subpoena are harmonised nationally with other jurisdictions in Australia.

The nationally harmonised form of Subpoena provides 3 separate options for different types of Subpoena:

1️⃣ Subpoena to Produce [this Form 26A];

2️⃣ Subpoena to Attend to Give Evidence [Form 25]; and

3️⃣ Subpoena to Attend to Give Evidence and to Produce [Form 27A].

Feedback has indicated that retaining all 3 options without deleting the options that are not relevant to the individual Subpoena has resulted in a longer document giving rise to potential confusion for the person receiving it.

Therefore, a separate form has been approved for each type of Subpoena to:

✅ Increase user friendliness;

✅ Make it clear what is required of the person receiving the Subpoena; and

✅ Save on wasted paper.

You can indicate in the Subpoena if you agree to the person receiving the Subpoena to Produce copies (rather than originals) of the documents to the court (see UCPR 33.7).

When a Subpoena will not be issued?

You should note that a Subpoena will not be issued:

⚖️ If the court has made an order, or there is a rule of the court, having the effect of requiring that the proposed Subpoena:

➲ Not be issued, or

➲ Not be issued without leave of the court and that leave has not been given (see UCPR 33.2).

➲ Requiring the production of a document or thing in the custody of the court or another court (see UCPR 33.2)

➲ Not be issued without the leave of the court, if the party is not represented by a solicitor or in proceedings in the Small Claims Division of the Local Court (see UCPR 7.3).

Subpoena for the Production of Medical Reports

See UCPR 31.32 and 31.33  for more information if you are issuing a Subpoena for the production of medical reports.

Service of the Subpoena

After the Subpoena has been issued, you MUST arrange for:

⚖️ The Subpoena to be served on the person to whom it is addressed not less than 5 clear working days before the date on the Subpoena to Produce.

You MUST seek leave of the court if you wish to serve a Subpoena a shorter time before the return day.

A copy of the Subpoena to be served on each other active party in the proceedings (see UCPR 33.5).

See UCPR Part 10 for more information about how to serve a Subpoena or other document.

A Supreme Court Subpoena is required to be served personally on the addressee.

The person who produces the documents or things to the court may request that you pay the amount of any reasonable loss or expense that they incur in complying with the Subpoena to Produce.

You should attempt to agree with the person producing the documents on the amount of any reasonable loss or expense.

If you cannot agree, the court may be asked to make an order about the amount that you must pay.

Failure to Comply with Subpoena ➲ Contempt of Court

Failure to comply with a Subpoena without lawful excuse is a contempt of court and may result in the person's arrest.

Notes included in the Subpoena

Last Day for Service

1️⃣ You need not comply with the Subpoena unless it is served on you on or before the date specified in the Subpoena as the last date for serving the Subpoena.

Informal Service

2️⃣ Even if this Subpoena has not been served personally on you in accordance with the rules, you MUST, nevertheless, comply with its requirements, if you have, by the
last date for service of the Subpoena, actual knowledge of the Subpoena and of its requirements.

Addressee a Corporation

3️⃣ If the Subpoena is addressed to a corporation, the corporation must comply with the Subpoena by its appropriate or proper officer.

Conduct money

4️⃣ You need not comply with the Subpoena in so far as it requires you to attend to give evidence unless conduct money sufficient to meet your reasonable expenses of
attending as required by the Subpoena is handed or tendered to you a reasonable time before the date on which your attendance is required.

Production of subpoena or copy of it and documents or things by delivery or post

5️⃣ In so far as this Subpoena requires production of the Subpoena or a copy of it and a document or thing, instead of attending to produce the Subpoena or a copy of it and the document or thing, you may comply with the Subpoena by delivering or sending the Subpoena or a copy of it and the document or thing to the Registrar at the
address specified in the Subpoena for the purpose, or if more than one address is so specified, to any one of those addresses, so that they are received not less than
2 clear days before the date specified in the Subpoena for attendance and production.

6️⃣ If you object to a document or thing produced in response to this Subpoena being inspected by a party to the proceeding or any other person, you MUST, at the time of production, notify the registrar in writing of your objection and of the grounds of your objection.

7️⃣ Unless the court otherwise orders, if you do not object to a document or thing produced by you in response to the Subpoena being inspected by any party to the
proceeding, the registrar may permit the parties to the proceeding to inspect the document or thing.

Production of a number of documents or things

8️⃣ If you produce more than one document or thing, you must, if requested by the registrar, produce a list of the documents or things produced.

Production of copy instead of original

9️⃣ If the Subpoena requires you to produce a document, you may produce a copy of the document unless the subpoena specifically requires you to produce the original.

9️⃣ A: The copy of a document may be:

(a) a photocopy; or
(b) in any electronic form that the issuing party has indicated will be acceptable.

🔟 You MUST complete the Declaration appearing on the last page of this document and attach it to the Subpoena or copy of the Subpoena that accompanies the documents or things produced to the Court under the Subpoena.

1️⃣1️⃣ If you declare that the material you produce is copies of documents, the Registrar may, without further notice to you, destroy the copies after the expiry of a period of four months from the conclusion of the proceeding or, if the documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.

1️⃣2️⃣ If the material you produce to the Court is or includes any original document, the Court will return all of the material to you at the address specified by you in your Declaration by Subpoena Recipient below.

Applications in Relation to Subpoena

1️⃣3️⃣ You have the right to apply to the Court:

(a) for an order setting aside the Subpoena (or a part of it) or for relief in respect of the Subpoena, and

(b) for an order with respect to your claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the Subpoena.

Loss or Expense of Compliance

1️⃣4️⃣ If you are not a party to the proceeding, you may apply to the court for an order that the issuing party pay an amount (in addition to conduct money and any witness’s expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying with the Subpoena.

Failure to comply with subpoena—arrest

1️⃣5️⃣ Failure to comply with a Subpoena without lawful excuse:

(a) is a contempt of court (UCPR 33.12) and may be dealt with accordingly.

(b) may lead to your arrest under section 97 Civil Procedure Act or under rules of the court to enforce compliance with a Subpoena.

Legal Advice Recommended

The preparation of a Subpoena to Produce with Subpoena Notice & Declaration has important strategic legal implications.

In short, due to the complexities involved:

➲ We recommend you contact our legal team to obtain legal advice and guidance.

Important Notes:

The party preparing this Form is required to serve a copy of the Form on the witness at least 5 days before the earliest date on which the witness is required to comply with the Subpoena or an earlier or later date fixed by the court (UCPR 33.3), unless the Subpoena is to be served on a medical expert (see UCPR 31.32) or outside NSW, but in Australia.