Subpoenas

Subpoenas, legal issues bulletin 25. This advice was reviewed in March 2024. This bulletin outlines what you should do if you are subpoenaed to produce documents, or to attend court, the commission, or tribunal.

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What is a subpoena?

A subpoena is a legal document that compels the addressee to:

  • attend court, the commission, or tribunal and give evidence as a witness
  • produce documents (requires all documents in the care or control of the addressee to be produced to the court, commission, or tribunal)
  • or both, attend court and produce documents.

The addressee is the person who is the subject of the order expressed in a subpoena. It must be complied with by the appropriate/proper officer. The issuing party is the other party to the proceedings identified in the subpoena.

A subpoena addressee may be held in contempt of court if the subpoena is not complied with, unless otherwise excused by the party who has arranged for the subpoena to be issued.

How are subpoenas served?

Subpoenas can be served personally, by mail or electronic means to a named individual, a specific office holder (e.g., the principal of a school), or to a nominal office holder (e.g., the proper officer, administrative officer).

Unless a court orders otherwise, a subpoena must not be served on a student or person under 18 years of age.

In many cases, subpoenas are served on Legal Services. Arrangements are then made for the subpoena to be sent to the relevant school, State, or regional office for action.

Before actioning a subpoena, staff should consider these points:

  • If the Department of Education or the State of NSW is listed as a party to proceedings, the subpoena should be sent to the subpoenas unit, Legal Services subpoenas@det.nsw.edu.au. Do not send the documents to the court, commission, or tribunal. Legal Services will take carriage of the matter and advise if further action is required.
  • Ensure the subpoena has a court seal and stamp. If you are unsure or believe the form doesn’t look the same as other subpoenas, you can contact Legal Services through the subpoenas unit subpoenas@det.nsw.edu.au. Subpoenas are issued in a range of forms, and these vary depending on the court, commission, or tribunal.

Once the above has been clarified, you can now commence collating the documents.

Staff should make a copy of all records sent to the court. Whether you scan these documents or make a photocopy, it is advisable that all material is kept by the school as a record of compliance. In any instance, do not send the original documents to the court. These documents may be requested later for compliance with another subpoena or / and another information search request.

Subpoenas requiring production of risk of serious harm notifications

A crucial element of both departmental policy and the Children and Young Persons Care and Protection Act 1998 (the Act) is the protection of the identity of the notifier. In relation to risk of serious harm notifications, the Act provides several protections.

If an employee is served with a subpoena which requires the production of a notification to the Department of Communities and Justice, the notification must not be produced in answer to the subpoena.

Furthermore, the identity of any person who made the report must not be disclosed except with the consent of the person who made the report, or by leave of the court.

Therefore, the name of any person who made the report should be redacted from other documents being produced. Subpoena documents should not be read in isolation. If documents, when read together, would identify a reporter without naming them, this information must be redacted.

A person subpoenaed to give evidence in proceedings cannot be asked and cannot be required to answer any questions that will disclose the identity or lead to the identification of the person who made the notification.

For further information on responding to and reporting students at risk of harm, please refer to the Child Protection Policy.

Education’s Legal Services Assistant (ELSA)

Education’s Legal Services Assistant is aimed at balancing legal requirements with educational priorities. It is an additional service that supplements the work that Legal Services do. ELSA is an intelligent digital assistant that can be easily accessible to schools from Microsoft Teams. In preparation for this roll-out, Legal Services tested this interactive tool with schools, principals, and SAMs, and tailored technical tools specific to their needs.

This interactive tool will read the subpoena and guide you through the process, including drafting emails, to be able to respond to the subpoena. You will chat with ELSA, like you would with a colleague through Microsoft Teams, and ELSA will provide you with guidance in response to your query. ELSA will give you advice immediately through Microsoft Teams and it will also send you an email summarising your conversation, and it will follow with any documents or templates you need.

This advice and guidance is in real time and personalised to you.

There are many benefits to using ELSA, and our schools will be able to experience this firsthand once it is introduced, but more importantly, it will build knowledge and confidence in complying with a subpoena, it is easy to use, it will customise letters and emails ready for the school to send, and the built-in tools will also track when a lawyer or legal advice is needed, and this escalation process can be actioned straight from the conversation in Microsoft Teams.

For any support, guidance, and training, please contact the subpoenas unit subpoenas@det.nsw.edu.au.

Frequently Asked Questions

What is conduct money and should I still proceed if no funds are received?

Conduct money is provided to the person who is served the subpoena.

This is meant to cover:

  1. For requests for production of documents – the costs of compiling the relevant documents and sending them to the court or other forum named in the subpoena. The reasonable suggested amount for conduct money is $50.
  2. For requests to attend court, the commission or tribunal to give evidence – the conduct money should be sufficient to cover the travel costs of getting to and from the proceedings. Please see FAQ - What if the conduct money doesn’t cover travel expenses for a request to attend the court, the commission, or tribunal to give evidence? for further details.

It is the department’s position that subpoenas should still be complied with by returning all relevant documents regardless of receiving conduct money or insufficient money to cover all costs of compiling the documents and sending them back to the court or other forum named in the subpoena.

The School Principal or school administrative and support staff (SASS) can however, contact the issuing party and request an additional sum to cover costs. This request cannot be enforced if the payment is not received.

What if the conduct money doesn’t cover travel expenses for a request to attend the court, the commission, or tribunal to give evidence?

If required to attend court, the commission, or tribunal to give evidence, the conduct money should be sufficient to cover the travel costs of getting to and from the proceedings. If not served with sufficient conduct money to meet the reasonable travel costs of getting to and from the court, staff are not required to attend the court, commission, or tribunal in answer to the subpoena until an amount to cover those reasonable costs is provided.

When a substantial loss or expense is likely to be incurred by the person responding to the subpoena, it is essential that notice is given to the issuing party of this before complying with the subpoena. The person responding to the subpoena is required to provide a particularised estimate of the loss or expense to the issuing party.

The subpoena states, ‘including but not limited to’. I am unsure what to send.

This is common and the answer here is twofold. Staff can contact the solicitor who has issued the subpoena (details will be on the subpoena) and clarify the records requested.

Often the schedule listing the requested records will give you some guidance as to what is requested. Please comply with the subpoena like you would a GIPA application and collate documents relating to the information requested.

There is some sensitive material which I am hesitant to provide. What do I do?

This is common, and Legal Services can help. Please contact the subpoenas unit, Legal Services subpoenas@det.nsw.edu.au and send a copy of the subpoena.

It is advisable that you collate the documents first and have the questions or queries relating to the specific records with you to ensure the advice can be provided efficiently and effectively.

I know that there are more records held at another school. Do I still action this?

Yes. If you believe records are held by another school, please let the solicitor that issued the subpoena (details can be found on the subpoena) know.

If in this instance, your school holds no records, you will still need to comply with the subpoena by providing the court with a ‘no-records-held’ letter. There is no specific format to this, but it is suggested the school’s letterhead and contact details are noted.

The school can also forward the subpoena to the relevant school or directorate that they believe holds relevant records. Wording used by our department can include the following:

Re: Attached subpoena

A search of the records at [Insert school/unit name] has failed to locate any material meeting the description of documents outlined in the schedule attached to the subpoena.

What if the subpoena is requesting School Counsellor’s Files?

The request should be forwarded to the School Counsellor for appropriate action.

Counsellors must ascertain whether there is any material sought by the subpoena that might reasonably fall within the definition of a “protected confidence”. Legal Issues Bulletin 23 provides advice Protected confidences - school counsellors and records of victims of sexual assault (nsw.gov.au)

Please see Flowchart - Responding to a Subpoena relating to School Counsellor records for further details.

Do I need to send the documents to the court or to the solicitor?

The documents must be sent to the court, the commission, or the tribunal as per the instructions included in the subpoena.

It has now become common for many courts to receive the records in electronic format. This information will be detailed in the subpoena.

Once you send the documents to the court or relevant jurisdiction the documents are stored with them until the commencement of the proceedings.

Please do not send the documents to the party that has issued the subpoena.

The subpoena is specific to Worker’s Compensation. Do I still action it?

If the school has received a subpoena relating to a worker’s compensation matter, it should be forwarded to the Health, Safety and Staff Wellbeing Directorate via email OHSLegal@det.nsw.edu.au or contact should be made with their Incident Report and Support Hotline 1800 811 523.

Do I have to attend court if I can produce the records instead?

It is not unusual to find that after having informal discussions with the issuing party, attendance at court, commission, or tribunal is not necessary.

If the subpoena has been issued:

  1. on behalf of the Crown, contact the relevant officer who will be conducting the prosecution of the case. This may be either the police officer in charge of the case, the police prosecutor, or an officer from the Department of Public Prosecutions; or
  2. by a solicitor, contact the solicitor that issued the subpoena (details are included on the subpoena).

Am I on duty while at court?

If you have been subpoenaed to give evidence about matters that have arisen during your employment, you will be on duty.

Further information about giving evidence as a department employee is available in the legal issues bulletin LIB18 Giving Evidence in Courts and Tribunals.

If you are subpoenaed or called as a witness in a private capacity, you can apply for special leave. A copy of the subpoena should be provided with your request for leave.

What if I want to raise an objection?

If you believe there are grounds for raising an objection, including an abuse of process, please contact Legal Services for advice. Please complete the Advice Request Form Legal Services - advice request (office.com) and include a copy of the subpoena, and any documents you are concerned with.

What if there are too many documents and the time is not sufficient to comply?

In the first instance, contact should be made with the issuing party, and it is advised that you seek an extension.

An extension is not guaranteed, but the issuing party may also choose to narrow the scope of the request, making it easier to comply with. It is not advised that you contact the court, the commission or tribunal. They will re-direct you to contact the issuing party.

Contact Details

Shared Services HR, EDConnect

Where a subpoena requests the production of employment records, the request for all non-school-based staff, teaching staff and all non-teaching staff in schools, the subpoena should be re-directed to EDConnect.SSHRServices@det.nsw.edu.au. Shared Services will locate the relevant employee details and they can forward the subpoena to the relevant Employee Service Centres in Parramatta, Bathurst. Newcastle or Wollongong. Legal Services does not have access to these HR databases. Where the subpoena relates to multiple departmental areas, the school can forward the subpoena to the subpoenas unit, Legal Services subpoenas@det.nsw.edu.au for coordination.

Image: Flowchart - Responding to a Subpoena relating to School Counsellor records
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