Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012

Authorised by the Chief Parliamentary Counsel Authorised Version i Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 S.R. No. 39/2012 TABLE OF PROVISIONS Rule Page 1 Object 1 2 Authorising provisions 1 3 Commencement 1 4 New Order 7A inserted 2 ORDER 7A—TRANS-TASMAN PROCEEDINGS 2 7A.01 Definitions 2 7A.02 Application of Order 3 7A.03 Commencement of proceeding for order under Trans-Tasman Proceedings Act 3 7A.04 Interlocutory application under Trans-Tasman Proceedings Act 3 7A.05 Application for interim relief 3 7A.06 Application for leave to serve subpoena in New Zealand 4 7A.07 Form of subpoena 6 7A.08 Application to set aside subpoena 6 7A.09 Application for issue of certificate of non-compliance with subpoena 7 7A.10 Form of certificate of non-compliance 8 7A.11 Notice of registration of NZ judgment 8 7A.12 Application for extension of time to give notice of registration of NZ judgment 8 7A.13 Application to set aside registration of NZ judgment 9 7A.14 Application for stay of enforcement of registered NZ judgment to enable liable person to appeal 9 7A.15 Application for extension of time to apply for stay of enforcement of registered NZ judgment to enable liable person to appeal 10 7A.16 Application for order for use of audio link or audiovisual link 11 5 New Forms 7AA to 7AD inserted 11 Form 7AA—Subpoena to Give Evidence (New Zealand) 11 Form 7AB—Subpoena to Produce Documents (New Zealand) 18 -- 1 of 63 -- Rule Page ii Authorised by the Chief Parliamentary Counsel Form 7AC—Subpoena to Give Evidence and Produce Documents (New Zealand) 27 Form 7AD—Certificate of Non-compliance with Subpoena (New Zealand) 36 6 Amendment of Rule 1.12 of Chapter VI—Subpoenas 37 7 New Rule 1.12.1 37 1.12.1 Subpoenas—Trans-Tasman Proceedings Act 2010 37 8 New Forms 6-1BA to 6-1BC 38 Form 6-1BA—Subpoena to Give Evidence (New Zealand) 38 Form 6-1BB—Subpoena to Produce Documents (New Zealand) 44 Form 6-1BC—Subpoena to Give Evidence and Produce Documents (New Zealand) 52 ═══════════════ ENDNOTES 61 -- 2 of 63 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 STATUTORY RULES 2012 S.R. No. 39/2012 Supreme Court Act 1986 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 The Judges of the Supreme Court make the following Rules: 1 Object The object of these Rules is— (a) to amend Chapter I of the Rules of the Supreme Court to provide for procedures in relation to civil proceedings to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies; and (b) to amend Chapter VI of the Rules of the Supreme Court in relation to subpoenas in criminal proceedings to which the Trans- Tasman Proceedings Act 2010 of the Commonwealth applies. 2 Authorising provisions These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers. 3 Commencement These Rules come into operation on the day on which section 3 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth comes into operation. -- 3 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 2 4 New Order 7A inserted After Order 7 of the Supreme Court (General Civil Procedure) Rules 20051 insert— "ORDER 7A—TRANS-TASMAN PROCEEDINGS 7A.01 Definitions (1) In this Order— Trans-Tasman Proceedings Act means the Trans-Tasman Proceedings Act 2010 of the Commonwealth. (2) An expression used in the Trans-Tasman Proceedings Act has the same meaning in this Order as it has in that Act. Note The following expressions used in this Order are defined in section 4 of the Trans-Tasman Proceedings Act— • audio link • audiovisual link • Australian court • document • enforcement • entitled person • given • inferior Australian court • liable person • party • person named • procedural rules • proceeding. r. 4 -- 4 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 3 7A.02 Application of Order This Order applies in relation to any proceeding under the Trans-Tasman Proceedings Act. 7A.03 Commencement of proceeding for order under Trans-Tasman Proceedings Act (1) A proceeding for an order under the Trans- Tasman Proceedings Act shall be commenced by filing an originating motion in accordance with Order 5. (2) The originating motion shall be supported by an affidavit that states the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at the hearing. 7A.04 Interlocutory application under Trans-Tasman Proceedings Act An interlocutory application in a proceeding for an order under the Trans-Tasman Proceedings Act shall be made by filing a summons in accordance with Rule 4.02. 7A.05 Application for interim relief (1) An application for an order for interim relief under section 25 of the Trans-Tasman Proceedings Act shall be made by filing a summons. (2) The summons shall be supported by an affidavit stating— (a) if the applicant has commenced a proceeding in a New Zealand court— r. 4 -- 5 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 4 (i) that the person has commenced a proceeding in a New Zealand court; and (ii) the relief sought in the New Zealand proceeding; and (iii) the steps taken in the New Zealand proceeding; (b) if the applicant intends to commence a proceeding in the New Zealand court— (i) when the intended proceeding will be commenced; and (ii) the court in which the intended proceeding is to be commenced; and (iii) the relief to be sought in the intended proceeding; (c) the interim relief sought; (d) why the interim relief should be given. 7A.06 Application for leave to serve subpoena in New Zealand (1) A person may apply for leave to serve a subpoena in New Zealand by filing a summons. (2) The summons shall be supported by an affidavit— (a) stating briefly, but specifically, the following— (i) the name, occupation and address of the addressee; (ii) whether the addressee has attained the age of 18 years; r. 4 -- 6 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 5 (iii) the nature and significance of the evidence to be given, or the document or thing to be produced, by the addressee; (iv) details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience, to the addressee; (v) the date by which it is intended to serve the subpoena in New Zealand; (vi) details of the amounts to be given to the addressee to meet the addressee’s reasonable expenses of complying with the subpoena; (vii) details of the way in which the amounts referred to in subparagraph (vi) are to be given to the addressee; (viii) if the subpoena requires a specified person to give evidence, an estimate of the time that the addressee will be required to attend to give evidence; (ix) any facts or matters known to the applicant that may be grounds for an application by the addressee to have the subpoena set aside, under section 36(2) or (3) of the Trans- Tasman Proceedings Act; and r. 4 -- 7 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 6 (b) exhibiting a copy of the subpoena in relation to which leave is sought. Note Section 37(4) of the Trans-Tasman Proceedings Act requires that before granting leave under that Act to serve the subpoena, the Court may require the person making the application to undertake to meet the expenses reasonably incurred by the addressee in complying with the subpoena if those expenses exceed the allowances and travelling expenses to be provided to the addressee at the time of service of the subpoena. 7A.07 Form of subpoena A subpoena to which this Order applies shall be in accordance with— (a) Form 7AA, for a subpoena to give evidence; (b) Form 7AB, for a subpoena to produce documents; (c) Form 7AC, for a subpoena to give evidence and produce documents. 7A.08 Application to set aside subpoena (1) An application to set aside a subpoena served in New Zealand shall be made by filing a summons in the proceeding in which the subpoena was issued. (2) The summons shall be supported by an affidavit— (a) stating the material facts on which the application is based; (b) stating whether the applicant requests that any hearing be held by audio link or audiovisual link; and (c) exhibiting a copy of the subpoena. r. 4 -- 8 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 7 7A.09 Application for issue of certificate of non-compliance with subpoena (1) A party may apply to the Court for the issue of a certificate of non-compliance with a subpoena. (2) An application may be made— (a) if the proceeding in which the subpoena was issued is before the Court, orally to the Court; or (b) by filing a summons. (3) The application shall be supported by— (a) an affidavit of service of the subpoena; and (b) a further affidavit stating the following— (i) whether any application was made to set aside the subpoena; (ii) the material in support of any application to set aside the subpoena; (iii) any order that disposed of any application to set aside the subpoena; (iv) the material facts relied on for the issue of a certificate of non- compliance. (4) The affidavit referred to in paragraph (3)(b) shall exhibit— (a) a copy of the subpoena; and (b) a copy of the order giving leave to serve the subpoena. r. 4 -- 9 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 8 7A.10 Form of certificate of non-compliance (1) A certificate of non-compliance with a subpoena issued under section 38 of the Trans-Tasman Proceedings Act shall be in Form 7AD. (2) An order granting a certificate of non- compliance may be signed and authenticated in accordance with Rule 60.02 by the Judge of the Court or the Associate Judge making the order or by the Prothonotary. 7A.11 Notice of registration of NZ judgment An entitled person shall not take any step to enforce a NZ registered judgment unless the entitled person has filed an affidavit stating that notice of the registration of the NZ judgment has been given in accordance with— (a) section 73 of the Trans-Tasman Proceedings Act; and (b) any regulations made under that Act. 7A.12 Application for extension of time to give notice of registration of NZ judgment (1) An application by an entitled person for an extension of the time within which to give notice of the registration of a NZ judgment under section 73(3) of the Trans-Tasman Proceedings Act shall be made by filing a summons in the proceeding in which the judgment was registered. (2) An application under paragraph (1) shall be supported by an affidavit stating— (a) briefly, but specifically, the grounds relied on in support of the application; r. 4 -- 10 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 9 (b) the material facts relied on in support of the application; and (c) why notice was not given within time. 7A.13 Application to set aside registration of NZ judgment (1) An application by a liable person to set aside the registration of a NZ judgment under section 72(1) of the Trans-Tasman Proceedings Act shall be made by filing a summons in the proceeding in which the judgment was registered. (2) An application under paragraph (1) shall be supported by an affidavit stating— (a) briefly, but specifically, the grounds on which the registration of the judgment should be set aside; and (b) the material facts relied on in support of the application. Note An application to set aside the registration of a NZ judgment must be made within 30 working days of the Court after the day on which the liable person was served with notice of the registration, or within any shorter or longer period that the Court considers appropriate—see section 72(2) of the Trans-Tasman Proceedings Act. 7A.14 Application for stay of enforcement of registered NZ judgment to enable liable person to appeal (1) An application by a liable person for a stay of the enforcement of a registered NZ judgment under section 76(1) of the Trans- Tasman Proceedings Act to enable the person to appeal against the judgment shall be made by filing a summons in the r. 4 -- 11 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 10 proceeding in which the judgment was registered. (2) An application under paragraph (1) shall be supported by an affidavit stating— (a) the order sought; (b) briefly, but specifically, the grounds relied on in support of the order sought; and (c) the material facts relied on in support of the application. 7A.15 Application for extension of time to apply for stay of enforcement of registered NZ judgment to enable liable person to appeal (1) An application by a liable person for an extension of the time within which to apply for the stay of enforcement of a registered NZ judgment under section 76(3) of the Trans-Tasman Proceedings Act to enable the person to appeal against the judgment shall be made by filing a summons. (2) An application under paragraph (1) shall be supported by an affidavit stating— (a) the order sought; (b) briefly, but specifically, the grounds relied on in support of the application; (c) the material facts relied on in support of the application; and (d) why the application was not made within time. r. 4 -- 12 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 11 7A.16 Application for order for use of audio link or audiovisual link (1) A party may apply for an order that evidence be taken, or submissions be made, by audio link or audiovisual link from New Zealand by filing an application in accordance with Order 41A. (2) Paragraph (1) does not apply to a request referred to in Rule 7A.08(2)(b). __________________". 5 New Forms 7AA to 7AD inserted After Form 7A of the Supreme Court (General Civil Procedure) Rules 2005 insert— "FORM 7AA Rule 7A.07(a) SUBPOENA TO GIVE EVIDENCE (NEW ZEALAND) No. of 20 IN THE SUPREME COURT OF VICTORIA AT APPLICANT[S] [Name of Applicant(s)] RESPONDENT[S] [Name of Respondent(s)] Notice to Witness Trans-Tasman Proceedings Act 2010 This Notice is very important. Please read it and the attached document or documents very carefully. If you have any trouble understanding these documents you should get legal advice as soon as possible. Attached to this notice is a subpoena. The subpoena has been issued by the Supreme Court of Victoria. r. 5 -- 13 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 12 The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 2006 (New Zealand)). This notice: ● sets out your rights relating to the subpoena; and ● sets out your obligations relating to the subpoena; and ● includes information about the way in which you may make an application to have the subpoena set aside. Filed on behalf of [name and role of party] Prepared by [name of person/lawyer] Law firm [if applicable] Tel Fax Email Address for service [include State and postcode] Your rights 1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena. 2. An amount of money, or money and vouchers that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: 'Your obligations'). 3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court of Victoria that you be paid the additional amount you incurred. 4. You may apply to the Supreme Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible. 5. An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand. Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice. r. 5 -- 14 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 13 Your obligations 1. Unless the subpoena is set aside, you must comply with the attached subpoena if: (a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either: (i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or (ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses; and (b) you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and (c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and (d) service of the subpoena complied with any other conditions specified in the order; and (e) you are 18 years of age or older. Failure to comply with the subpoena If you do not comply with the subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed. Grounds for setting aside a subpoena 1. The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and: (a) you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or (b) if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or (c) you are being prosecuted or you are liable to prosecution for an offence in Australia; or (d) you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or r. 5 -- 15 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 14 (e) you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence). 2. The grounds on which the Court may set aside the subpoena include: (a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense; (b) compliance with the subpoena would cause you hardship or serious inconvenience; (c) if the subpoena requires you to produce a document or thing and: (i) that document or thing should not be taken out of New Zealand; and (ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means. Note: The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application. Procedure for applying to set aside a subpoena 1. Application must be made to the Supreme Court of Victoria. 2. You may fax your application to that Court on fax number [fax number of the Court]. 3. Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address. 4. The Prothonotary will arrange for service of your application and of any affidavit you lodge with the Court with your application. 5. The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing. 6. If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand. 7. If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. r. 5 -- 16 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 15 However, in such a case, the Court will determine which of video link or telephone will be used. SUBPOENA TO GIVE EVIDENCE (NEW ZEALAND) No. of 20 IN THE SUPREME COURT OF VICTORIA AT APPLICANT[S] [Name of Applicant(s)] RESPONDENT[S] [Name of Respondent(s)] TO: [name and address] You are ordered to attend to give evidence. See next page for details. Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). Please read Notes 1 to 8 at the end of this subpoena. The last date for service of this subpoena is [date]. (See Note 2) Date: Signed by Prothonotary Issued at the request of [name of party], whose address for service is: Place: Email: Details of subpoena Date, time and place at which you must attend to give evidence, unless you receive a notice of a later date or time from the issuing party, in which case the later date or time is substituted: Date: Time: Place: You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed. r. 5 -- 17 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 16 Notes Leave to serve subpoena 1. You need not comply with this subpoena unless it is accompanied by: (a) a copy of the order giving leave to serve this subpoena in New Zealand; and (b) a notice in the prescribed form that: (i) sets out your rights and obligations in relation to this subpoena; and (ii) includes information about the way in which an application to have this subpoena set aside may be made. Last day for service 2. You need not comply with this subpoena unless it is served on you on or before the date specified in this subpoena as the last date for service of this subpoena. Informal service 3. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of this subpoena, actual knowledge of this subpoena and of its requirements. Addressee a corporation 4. If this subpoena is addressed to a corporation, the corporation must comply with this subpoena by its appropriate or proper officer. Applications in relation to subpoena 5. You have the right to apply to the Court for an order with respect to any claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of this subpoena. Loss or expense of compliance 6. 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 this subpoena. r. 5 -- 18 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 17 Contempt of court—arrest 7. Failure to comply with this subpoena without lawful excuse may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). 8. Note 7 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. *Delete if not applicable. __________________ r. 5 -- 19 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 18 FORM 7AB Rule 7A.07(b) SUBPOENA TO PRODUCE DOCUMENTS (NEW ZEALAND) No. of 20 IN THE SUPREME COURT OF VICTORIA AT APPLICANT[S] [Name of Applicant(s)] RESPONDENT[S] [Name of Respondent(s)] Notice to Witness Trans-Tasman Proceedings Act 2010 This Notice is very important. Please read it and the attached document or documents very carefully. If you have any trouble understanding these documents you should get legal advice as soon as possible. Attached to this notice is a subpoena. The subpoena has been issued by the Supreme Court of Victoria. The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 2006 (New Zealand)). This notice: ● sets out your rights relating to the subpoena; and ● sets out your obligations relating to the subpoena; and ● includes information about the way in which you may make an application to have the subpoena set aside. Filed on behalf of [name and role of party] Prepared by [name of person/lawyer] Law firm [if applicable] Tel Fax Email r. 5 -- 20 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 19 Address for service [include State and postcode] Your rights 1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena. 2. An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: 'Your obligations'). 3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court of Victoria that you be paid the additional amount you incurred. 4. You may apply to the Supreme Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible. 5. An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand. Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice. Your obligations 1. Unless the subpoena is set aside, you must comply with the attached subpoena if: (a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either: (i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or (ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses; and (b) you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and (c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and r. 5 -- 21 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 20 (d) service of the subpoena complied with any other conditions specified in the order; and (e) you are 18 years of age or older. 2. If the subpoena only requires you to produce documents or things, it must specify the date on which the documents or things are required for production in the court or tribunal that issued the subpoena. You may comply with the subpoena by producing the documents or things at a registry of the High Court of New Zealand at least 10 days before the date specified in the subpoena. When you produce the documents or things at the registry you will be required to produce the subpoena and to pay the cost of sending the documents or things to the court or tribunal that issued the subpoena. You will be able to pay that cost out of the money given to you to meet your reasonable expenses of complying with the subpoena. Failure to comply with the subpoena If you do not comply with this subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed. Grounds for setting aside a subpoena 1. The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and: (a) you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or (b) if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or (c) you are being prosecuted or you are liable to prosecution for an offence in Australia; or (d) you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or (e) you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence). r. 5 -- 22 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 21 2. The grounds on which the Court may set aside the subpoena include: (a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense; (b) compliance with the subpoena would cause you hardship or serious inconvenience; (c) if the subpoena requires you to produce a document or thing and: (i) that document or thing should not be taken out of New Zealand; and (ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means. Note: The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application. Procedure for applying to set aside a subpoena 1. Application must be made to the Supreme Court of Victoria. 2. You may fax your application to that Court on fax number [fax number of the Court]. 3. Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address. 4. The Prothonotary will arrange for service of your application and of any affidavit you lodge with the Court with your application. 5. The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing. 6. If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand. 7. If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used. r. 5 -- 23 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 22 SUBPOENA TO PRODUCE DOCUMENTS (NEW ZEALAND) No. of 20 IN THE SUPREME COURT OF VICTORIA AT APPLICANT[S] [Name of Applicant(s)] RESPONDENT[S] [Name of Respondent(s)] TO: [name and address] You are ordered to produce this subpoena or a copy of it and the documents or things specified in the Schedule. See next page for details. Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). Please read Notes 1 to 16 at the end of this subpoena. The last date for service of this subpoena is [date]. (See Note 2) Date: Signed by Prothonotary Issued at the request of [name of party], whose address for service is: Place: Email: Details of subpoena You must comply with this subpoena: (a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production; or (b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to: (i) the Prothonotary at the address specified in the subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 2 clear business days before the date specified in the subpoena for attendance and production; or r. 5 -- 24 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 23 (ii) the Registrar of the High Court of New Zealand at the address specified in the subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 10 clear days before the date specified in the subpoena for attendance and production. (See Notes 6–12) Date, time and place at which you must attend to produce the subpoena or a copy of it and documents or things: Date: Time: Place: Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or posted: The Prothonotary Supreme Court of Victoria [address] Schedule The documents and things you must produce are as follows: [If insufficient space attach list] Notes Leave to serve subpoena 1. You need not comply with this subpoena unless it is accompanied by: (a) a copy of the order giving leave to serve the subpoena in New Zealand; and (b) a notice in the prescribed form that: (i) sets out your rights and obligations in relation to this subpoena; and (ii) includes information about the way in which an application to have this subpoena set aside may be made. Last day for service 2. You need not comply with this subpoena unless it is served on you on or before the date specified in this subpoena as the last date for service of the subpoena. r. 5 -- 25 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 24 Informal service 3. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of this subpoena, actual knowledge of this subpoena and of its requirements. Addressee a corporation 4. If this subpoena is addressed to a corporation, the corporation must comply with this subpoena by its appropriate or proper officer. Production of subpoena or copy of it and documents or things by delivery or post 5. In so far as this subpoena requires production of this subpoena or a copy of it and a document or thing, instead of attending to produce this subpoena or a copy of it and the document or thing, you may comply with this subpoena by delivering or sending this subpoena or a copy of it and the document or thing to: (a) the Prothonotary at the address specified in this subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 2 clear business days before the date specified in this subpoena for attendance and production; or (b) the Registrar of the High Court of New Zealand at the address specified in this subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 10 clear days before the date specified in this subpoena for attendance and production. 6. 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 Prothonotary in writing of your objection and of the grounds of your objection. 7. Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to this subpoena being inspected by any party to the proceeding, the Prothonotary may permit the parties to the proceeding to inspect the document or thing. Production of a number of documents or things 8. If you produce more than one document or thing, you must, if requested by the Prothonotary, produce a list of the documents or things produced. r. 5 -- 26 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 25 Production of copy instead of original 9. You may, with the consent of the issuing party, produce a copy, instead of the original, of any document that the subpoena requires you to produce. 9A. The copy of a document may be: (a) a photocopy; or (b) in an electronic form that the issuing party has indicated will be acceptable. Return or destruction of documents or copies 10. You may, at the time of production, inform the Court that any document or copy of a document produced need not be returned and may be destroyed. 11. If you have so informed the Court, the Prothonotary may destroy the document or copy instead of returning it to you. Applications in relation to subpoena 12. You have the right to apply to the Court for an order with respect to any claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of this subpoena. Loss or expense of compliance 13. 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 this subpoena. Banker's book 14. In so far as this subpoena requires production of this subpoena or a copy of it and a banker's book, if section 19 and other applicable provisions of the Evidence Act 2006 (New Zealand) would have applied if this subpoena has been issued in a New Zealand proceeding, instead of producing the banker's book, you may produce proof of the relevant entries in accordance with the applicable provisions of the Evidence Act 2006 (New Zealand). Contempt of court—arrest 15. Failure to comply with this subpoena without lawful excuse may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). r. 5 -- 27 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 26 16. Note 15 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. *Delete if not applicable. __________________ r. 5 -- 28 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 27 FORM 7AC Rule 7A.07(c) SUBPOENA TO GIVE EVIDENCE AND PRODUCE DOCUMENTS (NEW ZEALAND) No. of 20 IN THE SUPREME COURT OF VICTORIA AT APPLICANT[S] [Name of Applicant(s)] RESPONDENT[S] [Name of Respondent(s)] Notice to Witness Trans-Tasman Proceedings Act 2010 This Notice is very important. Please read it and the attached document or documents very carefully. If you have any trouble understanding these documents you should get legal advice as soon as possible. Attached to this notice is a subpoena. The subpoena has been issued by the Supreme Court of Victoria. The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 2006 (New Zealand)). This notice: ● sets out your rights relating to the subpoena; and ● sets out your obligations relating to the subpoena; and ● includes information about the way in which you may make an application to have the subpoena set aside. Filed on behalf of [name and role of party] Prepared by [name of person/lawyer] Law firm [if applicable] Tel Fax r. 5 -- 29 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 28 Email Address for service [include State and postcode] Your rights 1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena. 2. An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: 'Your obligations'). 3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court of Victoria that you be paid the additional amount you incurred. 4. You may apply to the Supreme Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible. 5. An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand. Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice. Your obligations 1. Unless the subpoena is set aside, you must comply with the attached subpoena if: (a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either: (i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or (ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses; and (b) you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and r. 5 -- 30 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 29 (c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and (d) service of the subpoena complied with any other conditions specified in the order; and (e) you are 18 years of age or older. 2. If the subpoena only requires you to produce documents or things, it must specify the date on which the documents or things are required for production in the court or tribunal that issued the subpoena. You may comply with the subpoena by producing the documents or things at a registry of the High Court of New Zealand at least 10 days before the date specified in the subpoena. When you produce the documents or things at the registry you will be required to produce the subpoena and to pay the cost of sending the documents or things to the court or tribunal that issued the subpoena. You will be able to pay that cost out of the money given to you to meet your reasonable expenses of complying with the subpoena. Failure to comply with the subpoena If you do not comply with this subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed. Grounds for setting aside a subpoena 1. The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and: (a) you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or (b) if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or (c) you are being prosecuted or you are liable to prosecution for an offence in Australia; or (d) you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or (e) you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence). r. 5 -- 31 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 30 2. The grounds on which the Court may set aside the subpoena include: (a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense; (b) compliance with the subpoena would cause you hardship or serious inconvenience; (c) if the subpoena requires you to produce a document or thing and: (i) that document or thing should not be taken out of New Zealand; and (ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means. Note: The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application. Procedure for applying to set aside a subpoena 1. Application must be made to the Supreme Court of Victoria. 2. You may fax your application to that Court on fax number [fax number of the Court]. 3. Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address. 4. The Prothonotary will arrange for service of your application and of any affidavit you lodge with the Court with your application. 5. The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing. 6. If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand. 7. If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used. r. 5 -- 32 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 31 SUBPOENA TO GIVE EVIDENCE AND PRODUCE DOCUMENTS (NEW ZEALAND) No. of 20 IN THE SUPREME COURT OF VICTORIA AT APPLICANT[S] [Name of Applicant(s)] RESPONDENT[S] [Name of Respondent(s)] TO: [name and address] You are ordered to attend to give evidence and to produce this subpoena or a copy of it and the documents or things specified in the Schedule. See next page for details. Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). Please read Notes 1 to 16 at the end of this subpoena. The last date for service of this subpoena is [date]. (See Note 2) Date: Signed by Prothonotary Issued at the request of [name of party], whose address for service is: Place: Email: Details of subpoena to give evidence In so far as you are required by this subpoena to attend to give evidence, you must attend as follows, unless you receive notice of a later date or time from the issuing party, in which case the later date or time is substituted: Date: Time: Place: r. 5 -- 33 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 32 You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed. Details of subpoena to produce documents In so far as you are required by this subpoena to produce this subpoena or a copy of it and documents or things, you must comply with this subpoena: (a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production; or (b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to: (i) the Prothonotary at the address specified in this subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 2 clear business days before the date specified in this subpoena for attendance and production; or (ii) the Registrar of the High Court of New Zealand at the address specified in the subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 10 clear days before the date specified in this subpoena for attendance and production. (See Notes 6–12) Date, time and place at which you must attend to produce this subpoena or a copy of it and documents or things: Date: Time: Place: Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or posted: The Prothonotary Supreme Court of Victoria [address] Schedule The documents and things you must produce are as follows: [If insufficient space attach list] r. 5 -- 34 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 33 Notes Leave to serve subpoena 1. You need not comply with this subpoena unless it is accompanied by: (a) a copy of the order giving leave to serve this subpoena in New Zealand; and (b) a notice in the prescribed form that: (i) sets out your rights and obligations in relation to this subpoena; and (ii) includes information about the way in which an application to have this subpoena set aside may be made. Last day for service 2. 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 service of the subpoena. Informal service 3. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of this subpoena, actual knowledge of this subpoena and of its requirements. Addressee a corporation 4. If this subpoena is addressed to a corporation, the corporation must comply with this subpoena by its appropriate or proper officer. Production of subpoena or copy of it and documents or things by delivery or post 5. In so far as this subpoena requires production of this subpoena or a copy of it and a document or thing, instead of attending to produce this subpoena or a copy of it and the document or thing, you may comply with this subpoena by delivering or sending this subpoena or a copy of it and the document or thing to: (a) the Prothonotary at the address specified in this subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 2 clear business days before the date specified in this subpoena for attendance and production; or r. 5 -- 35 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 34 (b) the Registrar of the High Court of New Zealand at the address specified in this subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 10 clear days before the date specified in this subpoena for attendance and production. 6. 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 Prothonotary in writing of your objection and of the grounds of your objection. 7. Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to this subpoena being inspected by any party to the proceeding, the Prothonotary may permit the parties to the proceeding to inspect the document or thing. Production of a number of documents or things 8. If you produce more than one document or thing, you must, if requested by the Prothonotary, produce a list of the documents or things produced. Production of copy instead of original 9. You may, with the consent of the issuing party, produce a copy, instead of the original, of any document that this subpoena requires you to produce. 9A. The copy of a document may be: (a) a photocopy; or (b) in an electronic form that the issuing party has indicated will be acceptable. Return or destruction of documents or copies 10. You may, at the time of production, inform the Court that any document or copy of a document produced need not be returned and may be destroyed. 11. If you have so informed the Court, the Prothonotary may destroy the document or copy instead of returning it to you. Applications in relation to subpoena 12. You have the right to apply to the Court for an order with respect to any claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of this subpoena. r. 5 -- 36 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 35 Loss or expense of compliance 13. 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 this subpoena. Banker's book 14. In so far as this subpoena requires production of this subpoena or a copy of it and a banker's book, if section 19 and other applicable provisions of the Evidence Act 2006 (New Zealand) would have applied if this subpoena has been issued in a New Zealand proceeding, instead of producing the banker's book, you may produce proof of the relevant entries in accordance with the applicable provisions of the Evidence Act 2006 (New Zealand). Contempt of court—arrest 15. Failure to comply with this subpoena without lawful excuse may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). 16. Note 15 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. *Delete if not applicable. __________________ r. 5 -- 37 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 36 FORM 7AD Rule 7A.10 CERTIFICATE OF NON-COMPLIANCE WITH SUBPOENA (NEW ZEALAND) No. of 20 IN THE SUPREME COURT OF VICTORIA AT APPLICANT[S] [Name of Applicant(s)] RESPONDENT[S] [Name of Respondent(s)] TO THE HIGH COURT OF NEW ZEALAND The Supreme Court of Victoria certifies that: (a) the Court gave leave to serve a subpoena in New Zealand under the Trans-Tasman Proceedings Act 2010 of the Commonwealth on [insert date of leave]; and (b) [person named in subpoena] has failed to comply with the subpoena. A copy of the subpoena and a copy of the order giving leave to serve in New Zealand are annexed to this certificate. *No application to set aside the subpoena either wholly or in part has been made. OR *An application to set aside the subpoena was dismissed by order made on [insert date]. A copy of this order is annexed to this certificate. Date: Signed *Delete if not applicable. Filed on behalf of [name and role of party] Prepared by [name of person/lawyer] Law firm [if applicable] r. 5 -- 38 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 37 Tel Fax Email Address for service [include State and postcode] __________________". 6 Amendment of Rule 1.12 of Chapter VI— Subpoenas In Rule 1.12(1) of the Supreme Court (Criminal Procedure) Rules 2008 2 after "this Rule" insert "and Rule 1.12.1". 7 New Rule 1.12.1 After Rule 1.12 of the Supreme Court (Criminal Procedure) Rules 2008 insert— "1.12.1 Subpoenas—Trans-Tasman Proceedings Act 2010 (1) In relation to a criminal proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies, Order 7A of Chapter I applies with any necessary modification to a proceeding to which these Rules relate, except an appeal or an application for leave to appeal. (2) In relation to a criminal proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies (except an appeal or an application for leave to appeal) a subpoena shall be in accordance with— (a) Form 6-1BA, for a subpoena to give evidence; (b) Form 6-1BB, for a subpoena to produce documents; (c) Form 6-1BC, for a subpoena to give evidence and produce documents. r. 6 -- 39 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 38 (3) A subpoena in a criminal proceeding to which the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies shall be served personally by giving a copy of the subpoena to the person to be served.". 8 New Forms 6-1BA to 6-1BC After Form 6-1B of the Supreme Court (Criminal Procedure) Rules 2008 insert— "Rule 1.12.1(2)(a) FORM 6-1BA SUBPOENA TO GIVE EVIDENCE (NEW ZEALAND) [heading as in originating process] Notice to Witness Trans-Tasman Proceedings Act 2010 This Notice is very important. Please read it and the attached document or documents very carefully. If you have any trouble understanding these documents you should get legal advice as soon as possible. Attached to this notice is a subpoena. The subpoena has been issued by the Supreme Court of Victoria. The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 2006 (New Zealand)). This notice: ● sets out your rights relating to the subpoena; and ● sets out your obligations relating to the subpoena; and ● includes information about the way in which you may make an application to have the subpoena set aside. Filed on behalf of [name and role of party] Prepared by [name of person/lawyer] Law firm [if applicable] r. 8 -- 40 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 39 Tel Fax Email Address for service [include State and postcode] Your rights 1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena. 2. An amount of money, or money and vouchers that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: 'Your obligations'). 3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court of Victoria that you be paid the additional amount you incurred. 4. You may apply to the Supreme Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible. 5. An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand. Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice. Your obligations 1. Unless the subpoena is set aside, you must comply with the attached subpoena if: (a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either: (i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or (ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses; and (b) you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and r. 8 -- 41 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 40 (c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and (d) service of the subpoena complied with any other conditions specified in the order; and (e) you are 18 years of age or older. Failure to comply with the subpoena If you do not comply with the subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed. Grounds for setting aside a subpoena 1. The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and: (a) you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or (b) if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or (c) you are being prosecuted or you are liable to prosecution for an offence in Australia; or (d) you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or (e) you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence). 2. The grounds on which the Court may set aside the subpoena include: (a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense; (b) compliance with the subpoena would cause you hardship or serious inconvenience; (c) if the subpoena requires you to produce a document or thing and: (i) that document or thing should not be taken out of New Zealand; and r. 8 -- 42 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 41 (ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means. Note: The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application. Procedure for applying to set aside a subpoena 1. Application must be made to the Supreme Court of Victoria. 2. You may fax your application to that Court on fax number [fax number of the Court]. 3. Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address. 4. The Prothonotary will arrange for service of your application and of any affidavit you lodge with the Court with your application. 5. The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing. 6. If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand. 7. If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used. SUBPOENA TO GIVE EVIDENCE (NEW ZEALAND) No. of 20 [heading as in originating process] TO: [name and address] You are ordered to attend to give evidence. See next page for details. Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). Please read Notes 1 to 8 at the end of this subpoena. r. 8 -- 43 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 42 The last date for service of this subpoena is [date]. (See Note 2) Date: Signed by Prothonotary Issued at the request of [name of party], whose address for service is: Place: Email: Details of subpoena Date, time and place at which you must attend to give evidence, unless you receive a notice of a later date or time from the issuing party, in which case the later date or time is substituted: Date: Time: Place: You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed. Notes Leave to serve subpoena 1. You need not comply with this subpoena unless it is accompanied by: (a) a copy of the order giving leave to serve this subpoena in New Zealand; and (b) a notice in the prescribed form that: (i) sets out your rights and obligations in relation to this subpoena; and (ii) includes information about the way in which an application to have this subpoena set aside may be made. Last day for service 2. You need not comply with this subpoena unless it is served on you on or before the date specified in this subpoena as the last date for service of this subpoena. r. 8 -- 44 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 43 Informal service 3. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of this subpoena, actual knowledge of this subpoena and of its requirements. Addressee a corporation 4. If this subpoena is addressed to a corporation, the corporation must comply with this subpoena by its appropriate or proper officer. Applications in relation to subpoena 5. You have the right to apply to the Court for an order with respect to any claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of this subpoena. Loss or expense of compliance 6. 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 this subpoena. Contempt of court—arrest 7. Failure to comply with this subpoena without lawful excuse may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). 8. Note 7 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. *Delete if not applicable. __________________ r. 8 -- 45 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 44 Rule 1.12.1(2)(b) FORM 6-1BB SUBPOENA TO PRODUCE DOCUMENTS (NEW ZEALAND) [heading as in originating process] Notice to Witness Trans-Tasman Proceedings Act 2010 This Notice is very important. Please read it and the attached document or documents very carefully. If you have any trouble understanding these documents you should get legal advice as soon as possible. Attached to this notice is a subpoena. The subpoena has been issued by the Supreme Court of Victoria. The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 2006 (New Zealand)). This notice: ● sets out your rights relating to the subpoena; and ● sets out your obligations relating to the subpoena; and ● includes information about the way in which you may make an application to have the subpoena set aside. Filed on behalf of [name and role of party] Prepared by [name of person/lawyer] Law firm [if applicable] Tel Fax Email Address for service [include State and postcode] Your rights 1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena. 2. An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: 'Your obligations'). r. 8 -- 46 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 45 3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court of Victoria that you be paid the additional amount you incurred. 4. You may apply to the Supreme Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible. 5. An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand. Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice. Your obligations 1. Unless the subpoena is set aside, you must comply with the attached subpoena if: (a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either: (i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or (ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses; and (b) you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and (c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and (d) service of the subpoena complied with any other conditions specified in the order; and (e) you are 18 years of age or older. 2. If the subpoena only requires you to produce documents or things, it must specify the date on which the documents or things are required for production in the court or tribunal that issued the subpoena. You may comply with the subpoena by producing the documents or things at a registry of the High Court of New Zealand at least 10 days before the date specified in the subpoena. r. 8 -- 47 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 46 When you produce the documents or things at the registry you will be required to produce the subpoena and to pay the cost of sending the documents or things to the court or tribunal that issued the subpoena. You will be able to pay that cost out of the money given to you to meet your reasonable expenses of complying with the subpoena. Failure to comply with the subpoena If you do not comply with this subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed. Grounds for setting aside a subpoena 1. The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and: (a) you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or (b) if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or (c) you are being prosecuted or you are liable to prosecution for an offence in Australia; or (d) you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or (e) you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence). 2. The grounds on which the Court may set aside the subpoena include: (a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense; (b) compliance with the subpoena would cause you hardship or serious inconvenience; (c) if the subpoena requires you to produce a document or thing and: (i) that document or thing should not be taken out of New Zealand; and r. 8 -- 48 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 47 (ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means. Note: The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application. Procedure for applying to set aside a subpoena 1. Application must be made to the Supreme Court of Victoria. 2. You may fax your application to that Court on fax number [fax number of the Court]. 3. Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address. 4. The Prothonotary will arrange for service of your application and of any affidavit you lodge with the Court with your application. 5. The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing. 6. If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand. 7. If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used. SUBPOENA TO PRODUCE DOCUMENTS (NEW ZEALAND) [heading as in originating process] TO: [name and address] You are ordered to produce this subpoena or a copy of it and the documents or things specified in the Schedule. See next page for details. Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). Please read Notes 1 to 16 at the end of this subpoena. r. 8 -- 49 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 48 The last date for service of this subpoena is [date]. (See Note 2) Date: Signed by Prothonotary Issued at the request of [name of party], whose address for service is: Place: Email: Details of subpoena You must comply with this subpoena: (a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production; or (b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to: (i) the Prothonotary at the address specified in the subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 2 clear business days before the date specified in the subpoena for attendance and production; or (ii) the Registrar of the High Court of New Zealand at the address specified in the subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 10 clear days before the date specified in the subpoena for attendance and production. (See Notes 6–12) Date, time and place at which you must attend to produce the subpoena or a copy of it and documents or things: Date: Time: Place: Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or posted: The Prothonotary Supreme Court of Victoria [address] r. 8 -- 50 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 49 Schedule The documents and things you must produce are as follows: [If insufficient space attach list] Notes Leave to serve subpoena 1. You need not comply with this subpoena unless it is accompanied by: (a) a copy of the order giving leave to serve the subpoena in New Zealand; and (b) a notice in the prescribed form that: (i) sets out your rights and obligations in relation to this subpoena; and (ii) includes information about the way in which an application to have this subpoena set aside may be made. Last day for service 2. You need not comply with this subpoena unless it is served on you on or before the date specified in this subpoena as the last date for service of the subpoena. Informal service 3. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of this subpoena, actual knowledge of this subpoena and of its requirements. Addressee a corporation 4. If this subpoena is addressed to a corporation, the corporation must comply with this subpoena by its appropriate or proper officer. Production of subpoena or copy of it and documents or things by delivery or post 5. In so far as this subpoena requires production of this subpoena or a copy of it and a document or thing, instead of attending to produce this subpoena or a copy of it and the document or thing, you may comply with this subpoena by delivering or sending this subpoena or a copy of it and the document or thing to: (a) the Prothonotary at the address specified in this subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 2 clear r. 8 -- 51 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 50 business days before the date specified in this subpoena for attendance and production; or (b) the Registrar of the High Court of New Zealand at the address specified in this subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 10 clear days before the date specified in this subpoena for attendance and production. 6. 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 Prothonotary in writing of your objection and of the grounds of your objection. 7. Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to this subpoena being inspected by any party to the proceeding, the Prothonotary may permit the parties to the proceeding to inspect the document or thing. Production of a number of documents or things 8. If you produce more than one document or thing, you must, if requested by the Prothonotary, produce a list of the documents or things produced. Production of copy instead of original 9. You may, with the consent of the issuing party, produce a copy, instead of the original, of any document that the subpoena requires you to produce. 9A. The copy of a document may be: (a) a photocopy; or (b) in an electronic form that the issuing party has indicated will be acceptable. Return or destruction of documents or copies 10. You may, at the time of production, inform the Court that any document or copy of a document produced need not be returned and may be destroyed. 11. If you have so informed the Court, the Prothonotary may destroy the document or copy instead of returning it to you. Applications in relation to subpoena 12. You have the right to apply to the Court for an order with respect to any claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of this subpoena. r. 8 -- 52 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 51 Loss or expense of compliance 13. 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 this subpoena. Banker's book 14. In so far as this subpoena requires production of this subpoena or a copy of it and a banker's book, if section 19 and other applicable provisions of the Evidence Act 2006 (New Zealand) would have applied if this subpoena has been issued in a New Zealand proceeding, instead of producing the banker's book, you may produce proof of the relevant entries in accordance with the applicable provisions of the Evidence Act 2006 (New Zealand). Contempt of court—arrest 15. Failure to comply with this subpoena without lawful excuse may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). 16. Note 15 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. *Delete if not applicable. __________________ r. 8 -- 53 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 52 Rule 1.12.1(2)(c) FORM 6-1BC SUBPOENA TO GIVE EVIDENCE AND PRODUCE DOCUMENTS (NEW ZEALAND) [heading as in originating process] Notice to Witness Trans-Tasman Proceedings Act 2010 This Notice is very important. Please read it and the attached document or documents very carefully. If you have any trouble understanding these documents you should get legal advice as soon as possible. Attached to this notice is a subpoena. The subpoena has been issued by the Supreme Court of Victoria. The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 206 (New Zealand)). This notice: ● sets out your rights relating to the subpoena; and ● sets out your obligations relating to the subpoena; and ● includes information about the way in which you may make an application to have the subpoena set aside. Filed on behalf of [name and role of party] Prepared by [name of person/lawyer] Law firm [if applicable] Tel Fax Email Address for service [include State and postcode] Your rights 1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena. r. 8 -- 54 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 53 2. An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: 'Your obligations'). 3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court of Victoria that you be paid the additional amount you incurred. 4. You may apply to the Supreme Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible. 5. An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand. Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice. Your obligations 1. Unless the subpoena is set aside, you must comply with the attached subpoena if: (a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either: (i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or (ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses; and (b) you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and (c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and (d) service of the subpoena complied with any other conditions specified in the order; and (e) you are 18 years of age or older. 2. If the subpoena only requires you to produce documents or things, it must specify the date on which the documents or things are required for production in the court or tribunal that issued the subpoena. r. 8 -- 55 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 54 You may comply with the subpoena by producing the documents or things at a registry of the High Court of New Zealand at least 10 days before the date specified in the subpoena. When you produce the documents or things at the registry you will be required to produce the subpoena and to pay the cost of sending the documents or things to the court or tribunal that issued the subpoena. You will be able to pay that cost out of the money given to you to meet your reasonable expenses of complying with the subpoena. Failure to comply with the subpoena If you do not comply with this subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed. Grounds for setting aside a subpoena 1. The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and: (a) you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or (b) if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or (c) you are being prosecuted or you are liable to prosecution for an offence in Australia; or (d) you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or (e) you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence). 2. The grounds on which the Court may set aside the subpoena include: (a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense; (b) compliance with the subpoena would cause you hardship or serious inconvenience; (c) if the subpoena requires you to produce a document or thing and: r. 8 -- 56 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 55 (i) that document or thing should not be taken out of New Zealand; and (ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means. Note: The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application. Procedure for applying to set aside a subpoena 1. Application must be made to the Supreme Court of Victoria. 2. You may fax your application to that Court on fax number [fax number of the Court]. 3. Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address. 4. The Prothonotary will arrange for service of your application and of any affidavit you lodge with the Court with your application. 5. The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing. 6. If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand. 7. If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used. SUBPOENA TO GIVE EVIDENCE AND PRODUCE DOCUMENTS (NEW ZEALAND) [heading as in originating process] TO: [name and address] You are ordered to attend to give evidence and to produce this subpoena or a copy of it and the documents or things specified in the Schedule. See next page for details. r. 8 -- 57 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 56 Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). Please read Notes 1 to 16 at the end of this subpoena. The last date for service of this subpoena is [date]. (See Note 2) Date: Signed by Prothonotary Issued at the request of [name of party], whose address for service is: Place: Email: Details of subpoena to give evidence In so far as you are required by this subpoena to attend to give evidence, you must attend as follows, unless you receive notice of a later date or time from the issuing party, in which case the later date or time is substituted: Date: Time: Place: You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed. Details of subpoena to produce documents In so far as you are required by this subpoena to produce this subpoena or a copy of it and documents or things, you must comply with this subpoena: (a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production; or (b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to: (i) the Prothonotary at the address specified in this subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 2 clear business days before the date specified in this subpoena for attendance and production; or r. 8 -- 58 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 57 (ii) the Registrar of the High Court of New Zealand at the address specified in the subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 10 clear days before the date specified in this subpoena for attendance and production. (See Notes 6–12) Date, time and place at which you must attend to produce this subpoena or a copy of it and documents or things: Date: Time: Place: Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or posted: The Prothonotary Supreme Court of Victoria [address] Schedule The documents and things you must produce are as follows: [If insufficient space attach list] Notes Leave to serve subpoena 1. You need not comply with this subpoena unless it is accompanied by: (a) a copy of the order giving leave to serve this subpoena in New Zealand; and (b) a notice in the prescribed form that: (i) sets out your rights and obligations in relation to this subpoena; and (ii) includes information about the way in which an application to have this subpoena set aside may be made. Last day for service 2. 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 service of the subpoena. r. 8 -- 59 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 58 Informal service 3. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of this subpoena, actual knowledge of this subpoena and of its requirements. Addressee a corporation 4. If this subpoena is addressed to a corporation, the corporation must comply with this subpoena by its appropriate or proper officer. Production of subpoena or copy of it and documents or things by delivery or post 5. In so far as this subpoena requires production of this subpoena or a copy of it and a document or thing, instead of attending to produce this subpoena or a copy of it and the document or thing, you may comply with this subpoena by delivering or sending this subpoena or a copy of it and the document or thing to: (a) the Prothonotary at the address specified in this subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 2 clear business days before the date specified in this subpoena for attendance and production; or (b) the Registrar of the High Court of New Zealand at the address specified in this subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 10 clear days before the date specified in this subpoena for attendance and production. 6. 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 Prothonotary in writing of your objection and of the grounds of your objection. 7. Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to this subpoena being inspected by any party to the proceeding, the Prothonotary may permit the parties to the proceeding to inspect the document or thing. Production of a number of documents or things 8. If you produce more than one document or thing, you must, if requested by the Prothonotary, produce a list of the documents or things produced. r. 8 -- 60 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 59 Production of copy instead of original 9. You may, with the consent of the issuing party, produce a copy, instead of the original, of any document that this subpoena requires you to produce. 9A. The copy of a document may be: (a) a photocopy; or (b) in an electronic form that the issuing party has indicated will be acceptable. Return or destruction of documents or copies 10. You may, at the time of production, inform the Court that any document or copy of a document produced need not be returned and may be destroyed. 11. If you have so informed the Court, the Prothonotary may destroy the document or copy instead of returning it to you. Applications in relation to subpoena 12. You have the right to apply to the Court for an order with respect to any claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of this subpoena. Loss or expense of compliance 13. 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 this subpoena. Banker's book 14. In so far as this subpoena requires production of this subpoena or a copy of it and a banker's book, if section 19 and other applicable provisions of the Evidence Act 2006 (New Zealand) would have applied if this subpoena has been issued in a New Zealand proceeding, instead of producing the banker's book, you may produce proof of the relevant entries in accordance with the applicable provisions of the Evidence Act 2006 (New Zealand). Contempt of court—arrest 15. Failure to comply with this subpoena without lawful excuse may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand). r. 8 -- 61 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 60 16. Note 15 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. *Delete if not applicable. __________________". Dated: 31 May 2012 M. L. WARREN, C.J. CHRISTOPHER MAXWELL, P. PHILIP MANDIE, J.A. PAMELA TATE, J.A. K. WILLIAMS, J. STEPHEN KAYE, J. ANTHONY CAVANOUGH, J. ROSS ROBSON, J. JACK FORREST, J. JAMES JUDD, J. PETER VICKERY, J. DAVID F. R. BEACH, J. JENNIFER DAVIES, J. KARIN EMERTON, J. CLYDE CROFT, J. ANNE FERGUSON, J. M. L. SIFRIS, J. PETER ALMOND, J. JOHN DIXON, J. C. MACAULAY, J. KATE McMILLAN, J. GREGORY GARDE, J. ═══════════════ r. 8 -- 62 of 63 -- S.R. No. 39/2012 Supreme Court (Trans-Tasman Proceedings Amendment) Rules 2012 Authorised by the Chief Parliamentary Counsel 61 ENDNOTES 1 Rule 4: S.R. No. 148/2005. Reprint No. 3 as at 28 February 2011. Reprinted to S.R. No. 8/2011. Subsequently amended by S.R. Nos 15/2011, 26/2011, 53/2011, 77/2011, 78/2011, 118/2011, 119/2011, 132/2011 and 133/2011. 2 Rule 6: S.R. No. 12/2008. Reprint No. 1 as at 28 February 2011. Reprinted to S.R. No. 6/2011. Subsequently amended by S.R. No. 120/2011. Endnotes -- 63 of 63 --