FEDERAL COURT RULES (AMENDMENT) 1995 NO. 46 - TABLE OF PROVISIONS 1.1. Commencement 1.2. Amendment 1.3. Order 27, rule 4 (Production by non-party) 1.4. Order 27, rule 6 (Issue of subpoenas) 1.5. New Order 69A 1.6. First Schedule 1995 No. 46 FEDERAL COURT RULES (AMENDMENT) - RULE 1.1 1. Commencement 1.1 These Rules commence on 1 April 1995. 1995 No. 46 FEDERAL COURT RULES (AMENDMENT) - RULE 1.2 2. Amendment 2.1 The Federal Court Rules are amended as set out in these Rules. 1995 No. 46 FEDERAL COURT RULES (AMENDMENT) - RULE 1.3 3. Order 27, rule 4 (Production by non-party) 3.1 After subrule 4 (2A), insert: "(2B) If service of the subpoena is to be effected in New Zealand by leave of the Court under Order 69A, the subpoena must also permit the person named in the subpoena to produce the document or thing, together with the subpoena, at any registry of the High Court of New Zealand not later than 10 days before the date specified in the subpoena as the date on which the document or thing is required for production in the Court, instead of attending the Court to produce the document or thing.". 1995 No. 46 FEDERAL COURT RULES (AMENDMENT) - RULE 1.4 4. Order 27, rule 6 (Issue of subpoenas) 4.1 Subrule 6 (4): Omit the subrule, substitute: "(4) A subpoena must be: (a) in accordance with Form 41, 42 or 43; or (b) if it is a subpoena for which leave to serve in New Zealand is to be sought under Order 69A-in accordance with Form 66A, 68A or 69A.". 1995 No. 46 FEDERAL COURT RULES (AMENDMENT) - RULE 1.5 5. New Order 69A 5.1 After Order 69, insert: "ORDER 69A-TRANS-TASMAN PROCEEDINGS Short title "1. This Order may be cited as the Trans-Tasman Proceedings Rules. Interpretation "2. (1) In this Order, unless the contrary intention appears: "Act" means the Evidence and Procedure (New Zealand) Act 1994; "another court" means an inferior court. "(2) Unless the contrary intention appears, an expression used in this Order and in the Act has the same meaning as in the Act. "3. (1) This Order applies to proceedings to which the Act applies. "(2) Subject to this Order the other Orders of these Rules apply to proceedings referred to in this Order. Leave to serve a subpoena "4. (1) Leave to serve a subpoena in New Zealand must be sought by filing: (a) if the subpoena was issued by the Court-a motion in that proceeding; or (b) if the subpoena was issued by another court-an originating motion to be heard ex parte. "(2) The motion must be supported by an affidavit annexing a copy of the subpoena and setting out: (a) the name, designation or occupation, and address of the person named and whether that person is over 18 years of age; and (b) the nature and significance of the evidence required from the person named, or of the document or thing required to be produced by the person; and (c) 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 person named; and (d) the date by which it is intended to serve the subpoena; and (e) details of: (i) the calculation of the sum sufficient to meet reasonable expenses in complying with the subpoena; and (ii) how those expenses are to be paid, or tendered, to the person named, in money or in vouchers; and (f) where the subpoena requires the person named to give evidence, an estimate of the time that person will be required to attend to give evidence; and (g) details of any facts or matters known to the deponent which may provide cause for the subpoena to be set aside under subsection 14 (2) or (3) of the Act. "(3) Before granting leave under the Act to serve a subpoena, the Court may require the applicant for leave to undertake to meet the expenses reasonably incurred by the person named, not being a party to the proceeding, in complying with the subpoena, if those expenses exceed the allowances and travelling expenses to be provided to that person at the time of service of the subpoena. "(4) No document relating to an application under this Rule is to be searched, inspected or copied without leave of the Court. Production of document or thing pursuant to subpoena "5.If the Registrar receives a fax under section 17 of the Evidence Amendment Act 1994 (New Zealand), the Registrar may confirm with the registry that issued the receipt in New Zealand that the document or thing produced is able to be transported to the Court as soon as practicable so that the document or thing may be produced in the Court on the date the person named in the subpoena was to have attended. Failure to comply with subpoena "6. (1) A certificate under section 16 of the Act, in accordance with Form 70A, may be issued on the Court's own motion or on the application of a party. "(2) Application for the issue of a certificate may be made: (a) if the proceeding in which the certificate is brought is then before the Court-orally, accompanied by a draft certificate in accordance with Form 70A; or (b) by motion. "(3) An application made by motion for the issue of a certificate must be supported by: (a) an affidavit of service of the subpoena and the order and the notice referred to in subsection 10 (3) of the Act; and (b) an affidavit stating: (i) particulars of the order granting leave to serve the subpoena; and (ii) whether application was made to set aside the subpoena and, if so, particulars of the application and any orders made; and (iii) that the subpoena was not complied with. "(4) A certificate issued under to subrule (1) must be under the seal of the Court. Setting aside subpoena "7. (1) An application to the Court under section 13 of the Act must be made by affidavit setting out the facts and grounds on which the application is based. "(2) The affidavit must: (a) be headed with the heading appearing on the copy order of the Court granting leave to serve the subpoena; and (b) be filed, by lodgment or by fax, at the registry of the Court shown in that heading. "(3) The affidavit must set out the address and telephone number, and, if applicable, the fax number of the applicant for an order to set aside the subpoena. "(4) If an affidavit is filed by fax, the Registrar must acknowledge, by fax, the receipt of a clear and legible copy of the affidavit. "(5) The Registrar must deliver a copy of the affidavit, by mail, or fax, to the address for service of the party who obtained leave to serve the subpoena. "(6) An application made under this rule is to be determined at a date, time and place and in a manner directed by the Court. "(7) An objection under subsection 14 (4) of the Act must be made by filing a notice in accordance with Form 72A not later than 7 days after: (a) if the objection is made by the person named in the subpoena-the date on which the application was filed; or (b) otherwise-the date on which the application is served on the party who obtained leave to serve the subpoena. "(8) A request under subsection 14 (6) of the Act that is not made in the application must be made by filing a form in accordance with Form 72B. Evidence by video-link and telephone "8. (1) An application for a direction under section 25 of the Act may be made orally or by motion. "(2) The application must be supported by an affidavit stating: (a) the reasons why such a procedure is desirable; and (b) the nature of the evidence to be taken; and (c) the number of witnesses to be examined; and (d) the expected duration of the evidence; and (e) whether issues of character are likely to be raised; and (f) in the case of submissions-the expected duration of the submissions; and (g) the facilities available for such a procedure or that can reasonably be made available; and (h) that the requirements of section 26 or section 27 of the Act can be met. "(3) In deciding whether to grant the application, the Court may take account of the matters set out in the applicant's affidavit in addition to any other matters considered to be material, including cost and convenience to the witnesses and all parties. "(4) If the Court determines that it is appropriate to hear evidence or receive submissions by video link or telephone, the Registrar may be directed to arrange and co-ordinate the appropriate facilities in Australia and New Zealand. "(5) Without limiting the generality of subrule (4), the Court may direct that: (a) the Registrar arrange for the evidence to be given, or the submissions be made, at the High Court of New Zealand or at another place approved by that Court; (b) an officer of the High Court of New Zealand, or another person approved by the Court be requested to be present to assist in the transmission of the evidence or submissions, and, in particular to: (i) introduce witnesses to be called and legal representatives; and (ii) assist with the administration of oaths, if necessary; and (iii) assist with the implementation of any directions or requests given or made by the Judge hearing the evidence or submissions. Fax copies "9. (1) Part 6 of the Act is taken to apply to a fax of a document in the same way as it applies to the original of the document (whether or not that original is itself a copy or extract of a document). "(2) If a fax of a document is adduced in evidence under subrule (1), the party adducing that evidence must file in the Registry a copy of the fax on paper of durable quality measuring about 295 mm long and 210 mm wide on which the writing is permanent, unless the fax meets those specifications. Enforcement of Orders made in New Zealand proceedings "10. (1) In a proceeding in a New Zealand court to which Part 5 of the Act applies an order made by that court under section 32 of the Act may be enforced by the Court in accordance with this rule. "(2) If enforcement of an order referred to in subrule (1) is sought by the New Zealand court which made the order or by a party to the proceeding in that court, a request in accordance with Form 71A is to be filed with the Court accompanied by: (a) an affidavit that sets out: (i) the order alleged to have been contravened; and (ii) the person alleged to have contravened the order; and (iii) the circumstances alleged to constitute the contravention of the order; and (b) if the circumstances are recorded on a video or audio tape recording of the proceeding-a copy of that recording exhibited to the affidavit. "(3) The Court must determine whether: (a) the contravention alleged would have been a contempt in the face or hearing of the Court if the order had been made by the Court, and, if so, direct that the provisions of Division 1 of Order 40, with necessary modification, apply; or (b) the request is to be treated as a motion for punishment for contempt, and, if so, direct that rules 8 and 9 of Order 40 apply. "(4) Nothing in this rule affects the power of the Court to punish for contempt.". 1995 No. 46 FEDERAL COURT RULES (AMENDMENT) - RULE 1.6 6. First Schedule 6.1 New Form 66A: After Form 66, insert: FORM 66A SUBPOENA FOR PRODUCTION (Order 27, rule 6) To: (name) (address) THE COURT ORDERS THAT: 1. you must attend and produce this subpoena and the documents and things described in the schedule: (a) before (the Court or other place); (b) at (address of Court or other place); (c) on (insert date) at (insert time) and until you are excused from further attending; but 2. you: (a) need not comply with this subpoena unless allowances and travelling expenses sufficient to meet your reasonable expenses are paid, or tendered to you, or vouchers tendered at the time of service of the subpoena, or not later than a reasonable time before the day upon which you are required to comply with this subpoena; and (b) may produce this subpoena and the documents and things described in the schedule either: (i) to the registry of the Federal Court at the above place not later than 2 days before the first day on which you are required to attend; or (ii) to a registry of the High Court of New Zealand not later than 10 working days before the first day on which you are required to attend (in which case you must obtain from the Registrar of the High Court of New Zealand a receipt of the documents or things produced and send a copy of the receipt by fax to the Registry of the Federal Court of Australia from which the subpoena was issued, together with a copy of the subpoena); and (c) if required as an officer of a bank to produce a banker's book, need not produce the banker's book, if: (i) either section 5 or section 14, as relevantly applicable, of the Banking Act 1982 (New Zealand) would have applied if this subpoena had been issued in New Zealand proceedings; and (ii) you produce proof of the relevant entries in accordance with section 5 of the Banking Act 1982 (New Zealand). Schedule (description) Date: eg 7 May 19 By the Court (signature and description of officer of the Court issuing subpoena) Name and address of District Registry of the Federal Court: (insert name and address) Telephone number of District Registry: (insert number) Fax number of District Registry: (insert number) Note:1.Failure to comply with this subpoena may result in your arrest and the imposition of a fine under section 16 of the Evidence Amendment Act 1994 (New Zealand). 2. Service of this subpoena is effective only if it is accompanied by a copy of the order giving leave to serve the subpoena in New Zealand and by a Notice to Witness setting out your rights and obligations in relation to this subpoena. 3. If you are not a party to the proceeding and incur substantial expense or loss in complying with this subpoena, you may apply to the Court for an order that the party who requested the issue of the subpoena pay to you an amount to compensate you for such expense or loss as is reasonably incurred by you in complying with the subpoena. This subpoena is issued at the request of (name), the applicant's solicitor (or as the case may be). 6.2 New Form 68A: After Form 68, insert: FORM 68A SUBPOENA TO GIVE EVIDENCE (Order 27, rule 6) To: (name) (address) THE COURT ORDERS that you must attend for the purpose of giving evidence: (a) before (the Court or other place); (b) at (address of Court or other place); (c) on (insert date) at (insert time) and until you are excused from further attending, but you need not attend on any day unless reasonable expenses have been paid or tendered to you. Date: eg 7 May 19 By the Court (signature and description of officer of the Court issuing subpoena) Name and address of District Registry of the Federal Court: (insert name and address) Telephone number of District Registry: (insert number) Fax number of District Registry: (insert number) Note: 1. Failure to comply with this subpoena may result in your arrest and the imposition of a fine under section 16 of the Evidence Amendment Act 1994 (New Zealand). 2. Service of this subpoena is effective only if it is accompanied by a copy of the order giving leave to serve the subpoena in New Zealand and by a Notice to Witness setting out your rights and obligations in relation to this subpoena. 3. If you are not a party to the proceeding and incur substantial expense or loss in complying with this subpoena, you may apply to the Court for an order that the party who requested the issue of the subpoena pay to you an amount to compensate you for such expense or loss as is reasonably incurred by you in complying with the subpoena. This subpoena is issued at the request of (name), the applicant's solicitor (or as the case may be). 6.3 New Form 69A: After Form 69, insert: FORM 69A SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE (Order 27, rule 6) To: (name) (address) THE COURT ORDERS THAT: 1. you must attend and produce this subpoena and the documents and things described in the schedule and attend for the purpose of giving evidence: (a) before (the Court or other place); (b) at (address of Court or other place); (c) on (insert date) at (insert time) and until you are excused from further attending; but 2. you need not comply with this subpoena unless allowances and travelling expenses sufficient to meet your reasonable expenses are paid, or tendered to you, or vouchers tendered at the time of service of the subpoena, or not later that a reasonable time before the day upon which you are required to comply with this subpoena. Schedule (description) Date: eg 7 May 19 By the Court (signature and description of officer of the Court issuing subpoena) Name and address of District Registry of the Federal Court: (insert name and address) Telephone number of District Registry: (insert number) Fax number of District Registry: (insert number) Note: 1. Failure to comply with this subpoena may result in your arrest and the imposition of a fine under section 16 of the Evidence Amendment Act 1994 (New Zealand). 2. Service of this subpoena is effective only if it is accompanied by a copy of the order giving leave to serve the subpoena in New Zealand and by a Notice to Witness setting out your rights and obligations in relation to this subpoena. 3. If you are not a party to the proceeding and incur substantial expense or loss in complying with this subpoena, you may apply to the Court for an order that the party who requested the issue of the subpoena pay to you an amount to compensate you for such expense or loss as is reasonably incurred by you in complying with the subpoena. This subpoena is issued at the request of (name), the applicant's solicitor (or as the case may be). 6.4 New Form 70A: After Form 70, insert: FORM 70A CERTIFICATE OF NON-COMPLIANCE WITH SUBPOENA (Order 69A, rule 6 (1)) To: The High Court of New Zealand (Address) THE FEDERAL COURT OF AUSTRALIA, respectfully requests you to exercise your powers under section 16 of the Evidence Amendment Act 1994 (New Zealand) in relation to non-compliance by (name of person subpoenaed) with a subpoena issued by the Federal Court of Australia and for which leave to serve in New Zealand was given by the Federal Court of Australia under the Evidence and Procedure (New Zealand) Act 1994 on (insert date of leave). A copy of the subpoena and a copy of the order giving leave to serve in New Zealand are annexed to this certificate. (Either) 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: eg 7 May 19 By the Court (signature of Registrar) (SEAL OF COURT TO BE AFFIXED) 6.5 New Form 71A: After Form 71, insert: FORM 71A REQUEST FOR PUNISHMENT OF PERSON CONTRAVENING ORDER (Order 69A, rule 10 (2)) (Name of party making request) respectfully requests the Federal Court of Australia to punish, under subsection 33 (3) of the Evidence and Procedure (New Zealand) Act 1994, (name of person contravening the order) for contravention of an order made by (New Zealand court which made the order). An affidavit setting out details of the contravention is attached. Name of party making request: (insert name) Address of party making request: (insert address) Telephone number: (insert number) Fax number: (insert number) Date: eg 7 May 19 (signed, applicant or applicant's solicitor) 6.6 New Forms 72A and 72B: After Form 72, insert: FORM 72A OBJECTION TO DETERMINATION WITHOUT HEARING (Order 69A, rule 7 (7)) The (identify person) objects to the application to set aside the subpoena (identify subpoena) being determined without a hearing. Date: eg 7 May 19 (signed, applicant or applicant's solicitor) FORM 72B REQUEST FOR HEARING BY VIDEO LINK OR TELEPHONE (Order 69A, rule 7 (8)) The applicant requests that the hearing of the application to set aside the subpoena (identify subpoena) be heard by video link or telephone. Date: eg 7 May 19 (signed, applicant or applicant's solicitor) - NOTES 1995 No. 46*1* FEDERAL COURT RULES*2* (AMENDMENT) - Dated 15 March 1995 *1* Notified in the Commonwealth of Australia Gazette on 23 March 1995. *2* Statutory Rules 1979 No. 140 as amended by 1980 No. 87; 1982 Nos. 217 and 408; 1983 No. 264; 1984 Nos. 9 and 258; 1985 Nos. 16, 97, 168 and 227; 1986 Nos. 61, 157 and 324; 1987 Nos. 73, 174 and 197; 1988 Nos. 14, 54, 144, 217 and 306; 1989 Nos. 50, 253 and 318; 1990 Nos. 72, 102, 276, 319, 414 and 453; 1991 Nos. 70, 249, 395 and 461; 1992 Nos. 43, 44, 86, 87, 186, 330, 421 and 453; 1993 No. 40, 45, 137. 225 and 290; 1994 Nos. 63, 130, 224, 279, 332 and 463; 1995 No. 31.