Supreme Court (Chapter I Amendment No. 5) Rules 2006

i Supreme Court (Chapter I Amendment No. 5) Rules 2006 S.R. No. 169/2006 TABLE OF PROVISIONS Rule Page 1. Object 1 2. Authorising provisions 1 3. Commencement 1 4. Principal Rules 1 5. Order 42 substituted and Order 42A inserted 2 ORDER 42 2 SUBPOENAS 2 42.01 Definitions 2 42.02 Issuing of subpoena 3 42.03 Form of subpoena 4 42.04 Setting aside or other relief 5 42.05 Service 5 42.06 Compliance with subpoena 5 42.07 Production otherwise than upon attendance 7 42.08 Removal, return, inspection, copying and disposal of documents and things 7 42.09 Inspection of, and dealing with, documents and things produced otherwise than on attendance 7 42.10 Disposal of documents and things produced 9 42.11 Costs and expenses of compliance 10 42.12 Failure to comply with subpoena—contempt of court 10 42.13 Documents and things in the custody of a court 11 ORDER 42A 12 SUBPOENA FOR PRODUCTION TO PROTHONOTARY 12 42A.01 Application 12 42A.02 Issuing subpoena 12 42A.03 Form of subpoena 12 42A.04 Affidavit of service 12 42A.05 Compliance with subpoena 13 42A.06 Receipt for document 13 42A.07 Objection by addressee or other person 13 -- 1 of 32 -- Rule Page ii 42A.08 Objection by party to inspection by other party 14 42A.09 Procedure after objection 15 42A.10 Inspection of document produced 15 42A.11 Removal of document 15 42A.12 Return of document 16 42A.13 Production of document at trial 17 42A.14 Subpoena for trial not affected 17 6. New Forms 42A and 42AA inserted 17 Form 42A—Subpoena 17 Form 42AA—Subpoena for Production to Prothonotary 23 7. Revocation of subpoena forms 28 8. Cross references 28 ═══════════════ ENDNOTES 30 -- 2 of 32 -- 1 STATUTORY RULES 2006 S.R. No. 169/2006 Supreme Court Act 1986 Supreme Court (Chapter I Amendment No. 5) Rules 2006 The Judges of the Supreme Court make the following Rules: 1. Object The object of these Rules is to amend Chapter I of the Rules of the Supreme Court to make rules relating to subpoenas in harmony with like rules in other States and Territories and to make continuing provision for subpoenas compelling production of documents to the Prothonotary. 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 1 February 2007. 4. Principal Rules In these Rules, the Supreme Court (General Civil Procedure) Rules 2005 1 are called the Principal Rules. -- 3 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 2 5. Order 42 substituted and Order 42A inserted For Order 42 of the Principal Rules substitute— 'ORDER 42 SUBPOENAS 42.01 Definitions In this Order and in Order 42A, unless the contrary intention appears— "addressee" means the person who is the subject of the order expressed in a subpoena; "conduct money" means a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending; "issuing party" means the party at whose request a subpoena is issued; "subpoena" means an order in writing requiring the addressee— (a) to attend to give evidence; (b) to produce the subpoena or a copy of it and a document or thing; or (c) to do both of those things; "subpoena to attend to give evidence" means a subpoena requiring the addressee to attend to give evidence; "subpoena to produce" means a subpoena requiring the addressee to produce the subpoena or a copy of it and a document or thing. r. 5 -- 4 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 3 42.02 Issuing of subpoena (1) The Court may, in any proceeding, by subpoena order the addressee— (a) to attend to give evidence as directed by the subpoena; (b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or (c) to do both of those things. (2) The Prothonotary shall not issue a subpoena— (a) if the Court has made an order, or there is a Rule of the Court, having the effect of requiring that the proposed subpoena— (i) not be issued; or (ii) not be issued without the leave of the Court and that leave has not been given; or (b) requiring the production of a document or thing in the custody of the Court or another court. (3) The Prothonotary shall seal with the seal of the Court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service. (4) A subpoena is taken to have been issued on its being sealed or otherwise authenticated in accordance with paragraph (3). r. 5 -- 5 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 4 42.03 Form of subpoena (1) A subpoena shall be in accordance with Form 42A. (2) A subpoena shall not be addressed to more than one person. (3) Unless the Court otherwise orders, a subpoena shall identify the addressee by name or by description of office or position. (4) A subpoena to produce shall— (a) identify the document or thing to be produced; and (b) specify the date, time and place for production. (5) A subpoena to attend to give evidence shall specify the date, time and place for attendance. (6) The date specified in a subpoena shall be the date of trial or any other date as ordered by the Court. (7) The place specified for production may be the Court or the address of any person authorised to take evidence in the proceeding as ordered by the Court. (8) The last date for service of a subpoena— (a) is the date falling 5 days before the earliest date on which an addressee is required to comply with the subpoena or an earlier or later date fixed by the Court; and (b) shall be specified in the subpoena. (9) If the addressee is a corporation, the corporation shall comply with the subpoena by its appropriate or proper officer. r. 5 -- 6 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 5 42.04 Setting aside or other relief (1) The Court may, of its own motion or on the application of a party or of any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under paragraph (1) shall be made on notice to the issuing party. (3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest. 42.05 Service (1) A subpoena shall be served personally on the addressee. (2) The issuing party shall serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee, but it shall not be necessary that the copy served be sealed or be served personally. 42.06 Compliance with subpoena (1) An addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the day on which attendance is required. (2) An addressee need not comply with the requirements of a subpoena unless it is served on or before the day specified in the subpoena as the last day for service of the subpoena. r. 5 -- 7 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 6 (3) Despite Rule 42.05(1), an addressee shall comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last day for service of the subpoena, actual knowledge of the subpoena and of its requirements. (4) The addressee shall comply with a subpoena to produce— (a) by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the Court or to the person authorised to take evidence in the proceeding as permitted by the Court; or (b) by delivering or sending the subpoena or a copy of it and the document or thing to the Prothonotary at the address specified for the purpose in the subpoena, so that they are received not less than three days before the day specified in the subpoena for attendance and production. (5) In the case of a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by paragraph (4) does not discharge the addressee from the obligation to attend to give evidence. r. 5 -- 8 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 7 42.07 Production otherwise than upon attendance (1) This Rule applies if an addressee produces a document or thing in accordance with Rule 42.06(4)(b). (2) The Prothonotary shall, if requested by the addressee, give a receipt for the document or thing to the addressee. (3) If the addressee produces more than one document or thing, the addressee shall, if requested by the Prothonotary, provide a list of the documents or things produced. (4) The addressee may, with the consent of the issuing party, produce a copy, instead of the original, of any document required to be produced. 42.08 Removal, return, inspection, copying and disposal of documents and things The Court may give directions in relation to the removal from and return to the Court, and the inspection, copying and disposal, of any document or thing that has been produced to the Court in response to a subpoena. 42.09 Inspection of, and dealing with, documents and things produced otherwise than on attendance (1) This Rule applies if an addressee produces a document or thing in accordance with Rule 42.06(4)(b). r. 5 -- 9 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 8 (2) On the request in writing of a party, the Prothonotary shall inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the document and thing produced. (3) Subject to this Rule, no person may inspect a document or thing produced unless the Court has granted leave and the inspection is in accordance with that leave. (4) Unless the Court otherwise orders, the Prothonotary may permit the parties to inspect at the office of the Prothonotary any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this Rule. (5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee shall, at the time of production, notify the Prothonotary in writing of the objection and of the grounds of the objection. (6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the Prothonotary in writing of the objection and of the grounds of the objection. (7) On receiving a notice of an objection under this Rule, the Prothonotary— (a) shall not permit any, or any further, inspection of the document or thing the subject of the objection; and (b) shall refer the objection to the Court for hearing and determination. r. 5 -- 10 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 9 (8) The Prothonotary shall notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party shall notify the addressee, the objector and each other party accordingly. (9) The Prothonotary shall not permit any document or thing produced to be removed from the office of the Prothonotary except on application in writing signed by the solicitor for a party. (10) A solicitor who signs an application under paragraph (9) and removes a document or thing from the office of the Prothonotary, undertakes to the Court by force of this Rule that— (a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and (b) the document or thing will be returned to the office of the Prothonotary in the same condition, order and packaging in which it was removed, as and when directed by the Prothonotary. (11) The Prothonotary may, in the Prothonotary's discretion, grant an application under paragraph (9) subject to conditions or refuse to grant the application. 42.10 Disposal of documents and things produced (1) Unless the Court otherwise orders, the Prothonotary may, in the Prothonotary's discretion, return to the addressee any document or thing produced to him in response to the subpoena. r. 5 -- 11 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 10 (2) Unless the Court otherwise orders, the Prothonotary shall not return any document or thing under paragraph (1) unless the Prothonotary has given to the issuing party at least 14 days' notice of the intention to do so and that period has expired. 42.11 Costs and expenses of compliance (1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. (2) If an order is made under paragraph (1), the Court shall fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs. (3) An amount fixed under this Rule is separate from and in addition to— (a) any conduct money paid to the addressee; (b) any witness expenses payable to the addressee. 42.12 Failure to comply with subpoena— contempt of court (1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly. (2) Despite Rule 42.05(1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last day for service of the subpoena, actual knowledge of the subpoena and of its requirements. r. 5 -- 12 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 11 (3) Paragraphs (1) and (2) are 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. 42.13 Documents and things in the custody of a court (1) A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Prothonotary in writing accordingly, identifying the document or thing. (2) If the document or thing is in the custody of the Court, the Prothonotary shall produce the document or thing— (a) in Court or to any person authorised to take evidence in the proceeding, as required by the party; or (b) as the Court directs. (3) If the document or thing is in the custody of another court, the Prothonotary shall, unless the Court has otherwise ordered— (a) request the other court to send the document or thing to the Prothonotary; and (b) after receiving it, produce the document or thing— (i) in Court or to any person authorised to take evidence in the proceeding as required by the party; or (ii) as the Court directs. __________________ r. 5 -- 13 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 12 ORDER 42A SUBPOENA FOR PRODUCTION TO PROTHONOTARY 42A.01 Application (1) This Rule applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document for evidence before— (a) the hearing of an interlocutory or other application in the proceeding; or (b) the trial of the proceeding. (2) Order 42 applies so far as is practicable to a subpoena to produce under this Order. 42A.02 Issuing subpoena A subpoena issued under this Order shall require the addressee to produce to the Prothonotary on or before a day specified by the Prothonotary in the subpoena the document identified in the subpoena. 42A.03 Form of subpoena A subpoena under this Order shall be in Form 42AA. 42A.04 Affidavit of service (1) A subpoena under this Order shall be served personally on the addressee. (2) The issuing party shall serve a copy of a subpoena to produce under this Order on each other party as soon as practicable after the subpoena has been served on the addressee, but it shall not be necessary that the copy served be sealed or be served personally. r. 5 -- 14 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 13 (3) A party who serves a copy of a subpoena under this Order shall forthwith file an affidavit of service. 42A.05 Compliance with subpoena (1) The addressee shall comply with the subpoena under this Order by producing the document to the Prothonotary by delivering or sending it and, if sent, the document shall be sent so that the Prothonotary receives it on or before the day specified in the subpoena. (2) If the document is not in writing, then, provided the original is held by the person named until trial, a copy only need be produced to the Prothonotary and, if a copy is produced, it shall be clearly marked as such and may be used by the Prothonotary for the purposes of inspection and, if necessary, copying. 42A.06 Receipt for document Where a document is produced in compliance with a subpoena under this Order the Prothonotary shall, if requested to do so, give a receipt to the person producing the document. 42A.07 Objection by addressee or other person If— (a) the addressee has any objection to producing a document identified in the subpoena or to its being inspected by any one or more of the parties to the proceeding; or r. 5 -- 15 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 14 (b) a person having a sufficient interest, other than a party, has any objection to the production of a document identified in the subpoena or to its being inspected by any one or more of the parties to the proceeding— that person shall notify the Prothonotary in writing of that objection and state the grounds of that objection before the day specified in the subpoena. 42A.08 Objection by party to inspection by other party (1) Subject to paragraph (2), if a party has any objection to the inspection by another party of a document identified in the subpoena, the party having the objection shall notify the Prothonotary in writing of that objection and state the grounds of that objection before the day specified in the subpoena. (2) If a party other than the plaintiff seeks by subpoena the production of any hospital or medical file or record concerning the plaintiff or his or her condition, the plaintiff may, before taking objection under paragraph (1), inspect the file or record produced to the Prothonotary and notify the Prothonotary thereafter of any objection the plaintiff has to inspection by any other party, provided that the plaintiff makes that inspection and notifies that objection and the grounds of that objection in writing within seven days after the day specified in the subpoena for production of the file or record to the Prothonotary. r. 5 -- 16 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 15 42A.09 Procedure after objection (1) Upon receiving notice under Rule 42A.07 or 42A.08, the Prothonotary shall refer the subpoena to a Judge or Master for the hearing and determination of the objection. (2) The Prothonotary shall notify the issuing party in writing of the objection and the grounds of that objection and the time and place at which the objection will be heard and that party shall notify the addressee and all other parties accordingly. 42A.10 Inspection of document produced If no objection is notified under Rule 42A.07 or 42A.08 or to the extent that any such objection is disallowed, each party, unless a Judge or Master otherwise orders, may by appointment with the Prothonotary inspect and take copies of a document produced in compliance with a subpoena under this Order. 42A.11 Removal of document (1) The Prothonotary shall not permit any document produced in compliance with a subpoena under this Order to be removed from the office of the Prothonotary except upon application in writing signed by the solicitor for a party. (2) A solicitor who signs an application under paragraph (1) and removes a document from the office of the Prothonotary, undertakes to the Court by force of this Rule that— (a) the document will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and r. 5 -- 17 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 16 (b) the document will be returned to the office of the Prothonotary in the same condition, order and packaging in which it was removed, as and when directed by the Prothonotary. (3) The Prothonotary may, in his or her discretion, decline to accede to any application under paragraph (1). 42A.12 Return of document (1) Subject to any order of the Court, the Prothonotary— (a) may in his or her discretion return to the addressee any document produced to him in compliance with the subpoena; (b) shall, upon returning the document, inform the addressee that the subpoena to produce remains in force until the trial or other determination of the proceeding; and (c) may specify a date by which the document is to be produced again to the Prothonotary in compliance with the subpoena. (2) Subject to paragraph (3), the Prothonotary shall not return any document under paragraph (1) until after the Prothonotary has given to the issuing party 14 days' notice in writing of his or her intention to do so. r. 5 -- 18 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 17 (3) In an urgent case and at the request of— (a) the addressee; or (b) in the case of any hospital or medical file or record concerning the plaintiff or his or her condition, the plaintiff— the Prothonotary may return a document under paragraph (1) without first giving notice under paragraph (2), but in such a case, after returning the document, the Prothonotary shall give notice to the issuing party that the document has been returned. 42A.13 Production of document at trial Subject to Rule 42A.12, the Prothonotary shall, unless otherwise ordered, produce or hand to the Associate of the trial Judge for production at the trial of the proceeding each document produced to the Prothonotary in compliance with a subpoena under this Order. 42A.14 Subpoena for trial not affected The issuing of a subpoena under this Order shall not preclude the issuing of a subpoena otherwise than under this Order. __________________'. 6. New Forms 42A and 42AA inserted For Form 42A of the Principal Rules substitute— 'FORM 42A Rule 42.03(1) SUBPOENA [heading as in originating process] r. 6 -- 19 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 18 To [name] of [address]: YOU ARE ORDERED: … *to attend to give evidence—see section A of this form; … *to produce this subpoena or a copy of it and the documents or things specified in the Schedule—see section B of this form; or … *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 section C of this form *Select one only of these three options Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest. The last day for service of this subpoena is: (See Note 1) Please read Notes 1 to 13 at the end of this subpoena. [Seal of the Court] Date: Issued at the request of [name of party], whose address for service is: A. Details of subpoena to attend to give evidence only Date, time and place at which you must attend to give evidence: 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. 6 -- 20 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 19 B. Details of subpoena to produce only 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 the Prothonotary at the address below so that they are received not less than three days before the day specified for attendance and production. (See Notes 5 to 9) Date, time and place at which to attend to produce the subpoena or a copy of it and the documents or things: Date: Time: Place: Address to which the subpoena (or copy) and documents or things may be delivered or sent: The Prothonotary [Supreme Court of Victoria 436 Lonsdale Street Melbourne] SCHEDULE The documents and things you must produce are as follows: [If insufficient space attach list] C. Details of subpoena both to attend to give evidence and to produce In so far as you are required by this subpoena to attend to give evidence, you must attend as follows: Date: Time: Place: r. 6 -- 21 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 20 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. In so far as you are required by this subpoena to produce the 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 the Prothonotary at the address below so that they are received not less than three days before the day specified for attendance and production. (See Notes 5 to 9) Date, time and place at which to attend to produce the subpoena or a copy of it and the documents or things: Date: Time: Place: Address to which the subpoena or a copy of it and documents or things must be delivered or sent: The Prothonotary [Supreme Court of Victoria 436 Lonsdale Street Melbourne] SCHEDULE The documents and things you must produce are as follows: [If insufficient space attach list] NOTES Last day for service 1. Subject to Note 2, you need not comply with the subpoena unless it is served on you on or before the day specified in the subpoena as the last day for service of the subpoena. r. 6 -- 22 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 21 2. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last day for service of the subpoena, actual knowledge of the subpoena and of its requirements. Addressee a corporation 3. If the subpoena is addressed to a corporation, the corporation must comply with the subpoena by its appropriate or proper officer. Conduct money 4. You need not comply with the subpoena in so far as it requires you to attend to give evidence unless conduct money sufficient to meet your reasonable expenses of attending as required by the subpoena is handed or tendered to you a reasonable time before the day on which your attendance is required. Production to the Prothonotary 5. In so far as this subpoena requires production of the subpoena or a copy of it and a document or thing, instead of attending to produce the subpoena or a copy of it and the document or thing, you may comply with the subpoena by delivering or sending the subpoena or a copy of it and the document or thing to the Prothonotary at the address specified in the subpoena for the purpose so that they are received not less than three days before the day specified in the 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 the subpoena being inspected by any party to the proceeding, the Prothonotary may permit the parties to the proceeding to inspect the document or thing. r. 6 -- 23 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 22 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. 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. Applications in relation to subpoena 10. You have the right to apply to the Court— (a) for an order setting aside the subpoena (or a part of it) or for relief in respect of the subpoena; and (b) for an order with respect to your claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena. Loss or expense of compliance 11. If you are not a party to the proceeding, you may apply to the Court for an order that the issuing party pay an amount (in addition to conduct money and any witness's expenses) in respect of the loss or expense, including legal costs reasonably incurred in complying with the subpoena. Contempt of court—arrest 12. Failure to comply with a subpoena without lawful excuse is a contempt of court and may be dealt with accordingly. 13. Note 12 is without prejudice to any power of the Court under any Rules of the Supreme Court (including any Rules of the Supreme 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. __________________ r. 6 -- 24 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 23 FORM 42AA Rule 42A.03 SUBPOENA FOR PRODUCTION TO PROTHONOTARY [heading as in originating process] To [name] of [address]: YOU ARE ORDERED: To produce to the Prothonotary this subpoena or a copy of it and the documents or things specified in the Schedule. Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest. The last day for service of this subpoena is: Please read Notes 1 to 18 at the end of this subpoena. [Seal of the Court] Date: Issued at the request of [name of party], whose address for service is: You must comply with this subpoena by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to the Prothonotary at the address below so that they are received on or before the date for production specified below. Date for production: The address of the Prothonotary to which the subpoena (or copy) and documents or things must be delivered or sent is: r. 6 -- 25 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 24 The Prothonotary [Supreme Court of Victoria 436 Lonsdale Street Melbourne] SCHEDULE The documents and things you must produce are as follows: [If insufficient space attach list] NOTES Last day for service 1. Subject to Note 2, you need not comply with the subpoena unless it is served on you on or before the day specified in the subpoena as the last day for service of the subpoena. 2. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last day for service of the subpoena, actual knowledge of the subpoena and of its requirements. Addressee a corporation 3. If the subpoena is addressed to a corporation, the corporation must comply with the subpoena by its appropriate or proper officer. Document not in writing 4. If compliance with the subpoena requires the production of a document which is not in writing (such as a photograph, computer disk, diskette, audio-tape, video-tape etc.: see section 38 of the Interpretation of Legislation Act 1984) then, provided the original is held by you until trial, a copy only need be produced to the Prothonotary. If a copy is produced, it must be clearly marked as such and it may be used by the Prothonotary for the purposes of inspection and, if necessary, copying. Question concerning subpoena 5. Any question concerning this subpoena should be directed not to the Court but to the solicitor for the party at whose request the subpoena was issued. r. 6 -- 26 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 25 Availability of documents for inspection and at trial 6. All documents produced in compliance with this subpoena will be available, unless earlier returned, at the trial of the proceeding and, subject to the following, may be inspected in the meantime by each party to the proceeding and his, her or its solicitor, and copies taken. Objection by addressee to production or inspection 7. If you are the person required by this subpoena to produce documents, and you object to producing the documents or to their being inspected by any one or more of the parties to the proceeding, you must notify the Prothonotary in writing of your objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party at whose request this subpoena is issued is required to inform you of the time and place when your objection will be heard by a Judge or a Master of the Court. Objection by party served with subpoena to inspection 8. If you are a party to the proceeding and have been served with a copy of this subpoena, and you object to the documents being inspected by another party to the proceeding, you must notify the Prothonotary of your objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party at whose request this subpoena is issued is required to inform you of the time and place when your objection will be heard by a Judge or a Master of the Court. Objection by plaintiff to production of hospital or medical file or record 9. If you are the plaintiff in this proceeding and this subpoena seeks from another person the production of a hospital or medical file or record concerning you or your condition, you may, before taking objection, inspect the file or record produced to the Prothonotary and, after such inspection, notify any objection you may have to inspection of that file or record by any other party, provided that you make your inspection and notify your objection and the grounds of that objection, if any, in writing within r. 6 -- 27 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 26 seven days after the day specified in the subpoena for production. Obligation of issuing party after objection 10. If you are the party at whose request the subpoena was issued and any objection is taken, either to the production of the documents or to their being inspected, you will be informed by the Prothonotary of the objection and of the time and place when the objection will be heard. You are required promptly to inform the addressee in the subpoena and all other parties to the proceeding accordingly so that they may be heard, if they wish, before the objection is determined. Removal of document 11. Documents produced in compliance with this subpoena may not be removed from the custody of the Prothonotary, even for the purpose of their being photocopied, except upon application in writing signed by a solicitor for a party. Rule 42A.11(2) of Chapter I of the Rules of the Supreme Court is then relevant: "(2) A solicitor who signs an application under paragraph (1) and removes a document from the office of the Prothonotary, undertakes to the Court by force of this Rule that— (a) the document will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and (b) the document will be returned to the office of the Prothonotary in the same condition, order and packaging in which it was removed, as and when directed by the Prothonotary.". A breach of this undertaking may be dealt with as a contempt of court. Production of a number of documents or things 12. 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. 6 -- 28 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 27 Production of copy instead of original 13. 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. Return of documents or copies 14. Any documents produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena (or a copy) request that the documents be posted to you at another address given by you or that you be informed when they are available to be collected by you. Applications in relation to subpoena 15. You have the right to apply to the Court— (a) for an order setting aside the subpoena (or a part of it) or for relief in respect of the subpoena; and (b) for an order with respect to your claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena. Loss or expense of compliance 16. 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 any conduct money or witnesses' expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying with the subpoena. Contempt of court—arrest 17. Failure to comply with a subpoena without lawful excuse is a contempt of court and may be dealt with accordingly. 18. Note 17 is without prejudice to any power of the Court under any Rules of the Supreme Court (including any Rules of the Supreme 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. __________________'. r. 6 -- 29 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 28 7. Revocation of subpoena forms In the Principal Rules, Forms 42B, 42C, 42D, 42E and 42F are revoked. 8. Cross references (1) In Rule 67.05 of the Principal Rules, for "Rule 42.05" substitute "Rule 42.06(1)". (2) In Rule 1.12 of the Supreme Court (Criminal Procedure) Rules 1998 2 , omit ", apart from Rule 42.10,". Dated: 30 November 2006 M. L. WARREN, C.J. CHRISTOPHER MAXWELL, P. ALEX CHERNOV, J.A. GEOFFREY NETTLE, J.A. DAVID ASHLEY, J.A. MARCIA NEAVE, J.A. BERNARD G. TEAGUE, J. P. D. CUMMINS, J. T. H. SMITH, J. JOHN COLDREY, J. DAVID BYRNE, J. D. L. HARPER, J. H. R. HANSEN, J. PHILIP MANDIE, J. BERNARD D. BONGIORNO, J. R. S. OSBORN, J. JULIE DODDS-STREETON, J. K. WILLIAMS, J. STEPHEN KAYE, J. r. 7 -- 30 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 29 SIMON P. WHELAN, J. ELIZABETH HOLLINGWORTH, J. KIM HARGRAVE, J. BETTY JUNE KING, J. ANTHONY CAVANOUGH, J. ═══════════════ r. 8 -- 31 of 32 -- S.R. No. 169/2006 Supreme Court (Chapter I Amendment No. 5) Rules 2006 30 ENDNOTES 1 Rule 4: S.R. No. 148/2005. Subsequently amended by S.R. Nos 43/2006, 98/2006, 102/2006 and 162/2006. 2 Rule 8(2): S.R. No. 33/1998. Reprint No. 2 as at 1 July 2004. Reprinted to S.R. No. 33/2004 and subsequently amended by S.R. Nos 7/2005, 22/2005, 95/2005, 97/2006 and 162/2006. Endnotes -- 32 of 32 --