How to respond when served with a subpoena: compliance, objection, setting aside, and recovering costs

A subpoena is a court process which requires the recipient of the subpoena (Recipient) to either give evidence at court or provide documents to the court. 

Whilst, as a general rule, subpoenas must be complied with, a Recipient does not always have to comply and other options may warrant examination.  

Objecting to a subpoena

A Recipient may object to complying with a subpoena on the grounds that requested information or documents are privileged.[1] 

This ground generally relates to documents which are brought into existence for the dominant purpose of giving legal advice and are therefore protected by legal professional privilege.

The Recipient must prove that the privilege is theirs to invoke,[2] and that it applies to the documents in question.

Setting aside a subpoena

A Recipient may have a subpoena set aside where:

  • the Recipient does not have the requested information or documents;
  • the requested information or documents are not relevant to the proceedings; or
  • the subpoena is oppressive. 

The first two grounds for setting aside a subpoena are self-explanatory. The final ground of oppression is considered below.

The subpoena is oppressive

A subpoena will be considered oppressive where it is so broad and ambiguous, or lacks sufficient particularity, that it would be overly onerous for a Recipient to collect and produce all documents required to comply with it.[3]

For example, requesting any documents in the possession, power or control of a Recipient in relation to any business, firm or corporation conducting a business similar to the business of the issuing party has been held to be oppressive.[4]

In deciding whether a subpoena is oppressive, the court will examine the circumstances of the case and balance the burden imposed on the Recipient in complying with the subpoena with the public interest that all relevant materials in a case are available to the parties involved.[5] 

An example of this was seen in the WA Supreme Court’s decision of Christos v Curtin University of Technology, where the court set aside a subpoena on the grounds of oppression. The Court found that the subpoena failed to sufficiently describe the documents to be produced to allow the Recipient to understand what was required, and that the volume of documents requested was unnecessarily wide and oppressive.[6]

Recovering costs  

Both costs of complying with, or setting aside, a subpoena may be recoverable by a Recipient from the issuing party.

Costs of compliance

Costs incurred by a Recipient in complying with a subpoena are recoverable from the issuing party, [7] and that may include the costs associated with tasks such as searching, collating and copying documents, and any real costs of time lost in having any employees of the Recipient undertake these tasks.[8]

Reasonable costs of obtaining legal advice as to whether to comply, and on issues such as privilege or oppression can also be recovered.[9]

Costs of setting aside

Generally, the court will order the issuing party to pay the Recipient’s costs where the Recipient successfully sets the subpoena aside.[10]

The Recipient will usually be entitled to all costs associated with the application to set the subpoena aside, including legal costs.[11]

The start date for these costs being recoverable is the point in time where the application “started to be agitated”.[12] The New South Wales Supreme Court has held that this commences once a Recipient moves “from obtaining legal advice as to whether or not documents should be produced, to agitating a motion to set aside the subpoena”, as it is at that point that the response passes “beyond the scope of compliance with the subpoena, to an application not to the comply with it.”[13]

An example of this was seen in the WA Supreme Court’s decision in Timcal Pty Ltd v Sons of Gwalia Ltd, where the court ordered the plaintiff to pay all of the Recipient’s costs of setting aside the subpoena. The Honourable Le Miere J went so far as to say that it was the plaintiff’s conduct in issuing a subpoena which he found ought to be set aside that caused the Recipient to incur the costs, and accordingly the plaintiff, and not the Recipient, should be liable for those costs.[14] 

Lavan Legal comment

When served with a subpoena, it is prudent for a Recipient to first consider whether it warrants compliance, or if there are grounds upon which to object, or to have the subpoena set aside.

It is prudent to seek legal advice at the earliest opportunity. 

Whichever course of action a Recipient takes, be it compliance, objection or seeking to set the subpoena aside, certain costs incurred, including legal costs, may be recoverable from the issuing party.

[1] Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573-4; 55 WN (NSW) 215; Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 595 – 596.

[2] Ashby v Commonwealth of Australia (No 2) (2012) 290 ALR 148, at [4]-[7].

[3] Attorney-General v Wilson (1839) 9 Sim 526; [1839] EngR 478; 59 ER 461; Lane v Registrar of Supreme Court of New South Wales (Equity Division) (1981) 35 ALR 322 at 332-3; Andrew Garrett Wine Resorts Pty Ltd v National Australia Bank Ltd (No 6) [2005] SASC 292 at [35]; Patonga Beach Holdings Pty Ltd v Lyons [2009] NSWSC 869 at [14].

[4] Naskam Security Services Pty Ltd v Adarm Security Pty Ltd [2000] QDC 241.

[5] Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 at 719.

[6] Christos v Curtin University of Technology [2013] WASC 310, at [10]-[11].

[7] Rules of the Supreme Court 1971 (WA) O 36B r 11.

[8] Deposit & Investment Co Ltd (recs apptd) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267 at 289, 291 – 292.

[9] A Pty Ltd v Z [2007] NSWSC 999 at [48].

[10] Dewley v Dewley [1971] 1 NSWLR 264 (at 270); Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 (at 503-504); R v Barbaro (1992) 108 ACTR 1 (at 5); Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159 (at 6).

[11] R v Barbaro (1992) 108 ACTR 1 (at 5).

[12] A Pty Ltd v Z [2007] NSWSC 999 at [48].

[13] Ibid.

[14] Timcal Pty Ltd v Sons of Gwalia Ltd (subject to deed of company arrangement) [2010] WASC 406, at [13], [15].