Magistrates' Court General Civil Procedure (Miscellaneous Amendments) Rules 2018 (Vic)
Magistrates' Court General Civil Procedure (Miscellaneous Amendments) Rules 2018
S.R. No. 158/2018
TABLE OF PROVISIONS
Rule Page
Part 1—Preliminary
1Objects
2Authorising provisions
3Commencement
4Principal Rules
Part 2—Trans-Tasman proceedings
5Order 7A substituted
Part 3—Harmonised subpoenas amendment
6Form of subpoena
7Compliance with subpoena
8Production otherwise than upon attendance
9Disposal of documents and things produced
10Compliance with subpoena
11Return of document
12Form 42B (Notice to addressee and declaration) revoked
13Form 42A substituted and new Forms 42B and 42C inserted
14Form 42AA substituted
Part 4—Recovery of Pro Bono Costs amendment
15New Part 3A of Order 63 inserted
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Endnotes
STATUTORY RULES 2018
S.R. No. 158/2018
Magistrates' Court Act 1989
Magistrates' Court General Civil Procedure (Miscellaneous Amendments) Rules 2018
The Chief Magistrate together with 2 Deputy Chief Magistrates jointly make the following Rules:
Part 1—Preliminary
1Objects
The objects of these Rules are to amend the Magistrates' Court General Civil Procedure Rules 2010—
(a)by substituting Order 7A to clarify the process for the registration under the Trans‑Tasman Proceedings Act 2010 of the Commonwealth of New Zealand judgments; and
(b)to further provide for subpoenas harmonised with other Australian jurisdictions; and
(c)to provide for the recovery of costs in cases where Australian lawyers are acting pro bono.
2Authorising provisions
These Rules are made under section 16 of the Magistrates' Court Act 1989 and all other enabling powers.
3Commencement
These Rules come into operation on 15 October 2018.
4Principal Rules
In these Rules, the Magistrates' Court General Civil Procedure Rules 2010[1] are called the Principal Rules.
Part 2—Trans-Tasman proceedings
5Order 7A substituted
For Order 7A of the Principal Rules substitute—
"ORDER 7A
TRANS-TASMAN PROCEEDINGS
7A.01Definitions
(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
·NZ judgment
·party
·person named
·procedural rules
·proceeding
·subpoena.
7A.02Application of Order
This Order applies in relation to any proceeding or matter under the Trans‑Tasman Proceedings Act.
7A.03Commencement of proceeding for order under Trans-Tasman Proceedings Act
Except as otherwise provided by or under the Trans-Tasman Proceedings Act or by this Order, a proceeding for an order under the Trans-Tasman Proceedings Act is commenced by filing a complaint in—
(a)the manner required by Order 4; and
(b)the form required by Order 5.
7A.04Interlocutory application under Trans‑Tasman Proceedings Act
An interlocutory application of which notice is to be given to any person in a proceeding for an order under the Trans‑Tasman Proceedings Act must be made by summons.
7A.05Application for interim relief
(1)An application for an order for interim relief under section 25 of the Trans-Tasman Proceedings Act must be made by filing a summons.
(2)The summons must be supported by an affidavit stating—
(a)if the applicant has commenced a proceeding in a New Zealand court—
(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.06Application for leave to serve subpoena in New Zealand
(1)An application under section 31(1) of the Trans-Tasman Proceedings Act for leave to serve a subpoena in New Zealand may be made—
(a)orally to the Court; and
(b)without summons or notice to any person.
(2)The application must 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;
(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
(b)exhibiting a copy of the subpoena in relation to which leave is sought.
Note
Pursuant to section 37(4) of the Trans-Tasman Proceedings Act, the Court may make orders to ensure that the person complying with the subpoena receives the amount of the person's reasonable expenses in so complying.
7A.07Form of subpoena
A subpoena to which this Order applies must 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.08Application to set aside subpoena
(1)An application under section 35 of the Trans‑Tasman Proceedings Act to set aside a subpoena served in New Zealand must be made by filing a summons in the proceeding in which the subpoena was issued.
(2)The summons must 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.
7A.09Application for issue of certificate of non‑compliance with subpoena
(1)A party may apply to the Court for the issue, under section 38 of the Trans‑Tasman Proceedings Act, of a certificate of non‑compliance with a subpoena.
(2)An application may be made—
(a)orally to the Court; and
(b)without summons or notice to any person.
(3)The application must 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) must exhibit—
(a)a copy of the subpoena; and
(b)a copy of the order giving leave to serve the subpoena.
(5)For the purposes of this Rule, the Court may be constituted by a registrar.
7A.10Form of certificate of non-compliance
(1)A certificate of non-compliance with a subpoena must be in Form 7AD.
(2)The certificate of non-compliance may be signed and sealed by the Magistrate, or the judicial registrar who issued the certificate, or by the registrar.
7A.11Application for registration of NZ judgment
(1)An application under section 67 of the Trans‑Tasman Proceedings Act for registration under section 68 of that Act of an NZ judgment must be made to the registrar.
Note
See Regulation 17 and Form 5 of the Trans-Tasman Proceedings Regulation 2012 of the Commonwealth made under the Trans-Tasman Proceedings Act.
(2)Where the registrar registers an NZ judgment, the matter in which the judgment is registered must, for the purposes of Rules 7A.12, 7A.13(1), 7A.14(1), 7A.15(1) and 7A.16(1), be taken to be a proceeding.
7A.12Notice of registration of NZ judgment
An entitled person must not take any step to enforce a registered NZ 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.13Application 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 an NZ judgment under section 73(3) of the Trans-Tasman Proceedings Act may be made—
(a)orally to the Court in the proceeding in which the judgment is registered; and
(b)without summons or notice to any person.
(2)An application under paragraph (1) must be supported by an affidavit stating—
(a)briefly, but specifically, the grounds relied on in support of the application;
(b)the material facts relied on in support of the application; and
(c)why notice was not given within time.
7A.14Application to set aside registration of NZ judgment
(1)An application by a liable person to set aside the registration of an NZ judgment under section 72(1) of the Trans-Tasman Proceedings Act must be made by filing a summons in the proceeding in which the judgment is registered.
(2)An application under paragraph (1) must 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 an 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.15Application 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 must be made by filing a summons in the proceeding in which the judgment is registered.
(2)An application under paragraph (1) must 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.16Application 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 must be made by filing a summons in the proceeding in which the judgment is registered.
(2)An application under paragraph (1) must 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.
7A.17Application 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).
__________________".
Part 3—Harmonised subpoenas amendment
6Form of subpoena
(1)For Rule 42.03(1) of the Principal Rules substitute—
"(1)A subpoena must be in accordance with—
(a)Form 42A, for a subpoena to attend to give evidence;
(b)Form 42B, for a subpoena to produce; or
(c)Form 42C, for a subpoena both to attend to give evidence and to produce.".
(2)The note at the foot of Rule 42.03(9) of the Principal Rules is revoked.
7Compliance with subpoena
(1)For Rule 42.06(1) of the Principal Rules substitute—
"(1)An addressee need not comply with the requirements of a subpoena to attend to give evidence (a subpoena in Form 42A) or a subpoena both to attend to give evidence and to produce (a subpoena in Form 42C) unless conduct money has been provided or tendered to the addressee a reasonable time before the day on which attendance is required.".
(2)In Rule 42.06(4)(b) of the Principal Rules, for "3 days" substitute "2 clear business days".
(3)For Rule 42.06(7)(b) of the Principal Rules substitute—
"(b)in an electronic form in any of the following electronic formats—
(i).doc and .docx—Microsoft Word documents;
(ii).pdf—Adobe Acrobat documents;
(iii).xls and .xlsx—Microsoft Excel spreadsheets;
(iv).jpg—image files;
(v).rtf—rich text format;
(vi).gif—graphics interchange format;
(vii).tif—tagged image format; or
(viii)any other format agreed with the issuing party.".
8Production otherwise than upon attendance
Rule 42.07(4) of the Principal Rules is revoked.
9Disposal of documents and things produced
For Rule 42.10(3) and (4) of the Principal Rules substitute—
"(3)The addressee of a subpoena which is in accordance with Form 42B or Form 42C must complete the declaration by the addressee provided for in the subpoena.
(4)The completed declaration must be included in the subpoena or copy of the subpoena which accompanies the documents produced under the subpoena.".
10Compliance with subpoena
For Rule 42A.05(2) of the Principal Rules substitute—
"(2)Unless a subpoena specifically requires the production of the original, the addressee may produce a copy of any document required to be produced by the subpoena.
(3)The copy of a document may be—
(a)a photocopy;
(b)in an electronic form in any of the following electronic formats—
(i).doc and .docx—Microsoft Word documents;
(ii).pdf—Adobe Acrobat documents;
(iii).xls and .xlsx—Microsoft Excel spreadsheets;
(iv).jpg—image files;
(v).rtf—rich text format;
(vi).gif—graphics interchange format;
(vii).tif—tagged image format;
(viii)any other format agreed with the issuing party; or
(c)in any other appropriate form.
(4)Even where a subpoena specifically requires the production of the original, the addressee may, with the consent of the issuing party, produce a copy, instead of the original, of the document required to be produced.".
11Return of document
(1)In the heading to Rule 42A.12 of the Principal Rules, after "Return" insert "or disposal".
(2)After Rule 42A.12(3) of the Principal Rules insert—
"(4)The addressee of a subpoena must complete the declaration by the addressee provided for in the subpoena.
(5)The completed declaration must be included in the subpoena or copy of the subpoena which accompanies the documents produced under the subpoena.
(6)Subject to paragraph (7), the registrar may, upon the expiry of 4 months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceeding in compliance with a subpoena which were declared by the addressee to be copies.
(7)The registrar may cause to be destroyed those documents declared by the addressee to be copies which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.".
12Form 42B (Notice to addressee and declaration) revoked
Form 42B of the Principal Rules is revoked.
13Form 42A substituted and new Forms 42B and 42C inserted
For Form 42A of the Principal Rules substitute—
"FORM 42A
Rule 42.03(1)(a)
SUBPOENA TO ATTEND TO GIVE EVIDENCE
[heading as in Form 5A]
To [name]
of [address]:
YOU ARE ORDERED to attend to give evidence: see below for details.
Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest.
You should read all of the Notes set out at the end of this subpoena.
The last day for service of this subpoena is: [date]. (See Note 1)
Date:
[Seal of the Court]
Issued at the request of [name of party], whose address for service is:
Place:
Email:
Details of subpoena
You are required by this subpoena to attend to give evidence and 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.
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 date specified in the subpoena as the last date for service of the subpoena.
Informal service
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 date 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 requirements of the subpoena unless a sum of money or its equivalent (such as pre-paid travel) sufficient to meet your reasonable expenses of attending, as required by the subpoena and returning after so attending, is provided or tendered to you a reasonable time before the day on which your attendance is required.
Applications in relation to subpoena
5.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 any claim you may have for privilege, public interest immunity or confidentiality in relation to any evidence you may be required to give under the 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 any loss or expense, including any legal costs, reasonably incurred in complying with the subpoena.
Contempt of court—arrest
7.Failure to comply with a subpoena without lawful excuse is a contempt of court and may be dealt with accordingly.
8.Note 7 is without prejudice to any power of the Court under section 134 of the Magistrates' Court Act 1989.
__________________
FORM 42B
Rule 42.03(1)(b)
SUBPOENA TO PRODUCE
[heading as in Form 5A]
To [name]
of [address]:
YOU ARE ORDERED to attend to produce this subpoena or a copy of it and the documents or things specified in the Schedule of documents: see below for details.
Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest.
You should read all of the Notes set out in this subpoena. Also, you must complete the Declaration by Addressee (Subpoena Recipient) set out at the end of this subpoena.
The last day for service of this subpoena is: [date]. (See Note 1)
Date:
[Seal of the Court]
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 of documents 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 of documents below to the registrar at the address below, or if there is more than one address below, at any one of those addresses, so that they are received not less than 2 clear business days before the date specified for attendance and production. (See Notes 4 to 10)
Date, time and place at which to attend to produce the subpoena or a copy of it and the documents or things 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:
Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or sent:
The registrar
Magistrates' Court of Victoria
at [venue]
SCHEDULE OF DOCUMENTS
The documents and things you must produce are as follows:
[List the documents or things. Attach list if insufficient space.]
NOTES
Last day for service
1.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
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 date 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.
Production of subpoena or copy of it and documents or things by delivery or post
4.Instead of attending to produce this subpoena (or a copy of it) and the documents or things required to be produced, you may comply with the subpoena by delivering or sending the subpoena (or a copy of it) and the documents or things to the registrar—
(a)at the address specified in the subpoena for the purpose; or
(b)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 the subpoena for attendance and production or if you receive notice of a later date or time from the issuing party, before the later date or time.
5.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 registrar in writing of your objection and of the grounds of your objection.
6.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 registrar may permit the parties to the proceeding to inspect the document or thing.
Production of a number of documents or things
7.If you produce more than one document or thing, you must, if requested by the registrar, produce a list of the documents or things produced.
Production of copy instead of original
8.Unless the subpoena specifically requires you to produce an original, you may produce a copy of any document that the subpoena requires you to produce. If you are producing copies, you are encouraged to produce them in electronic form.
9.Electronic copies of documents can be provided on a memory card or stick in any of the formats referred to in paragraph 10(b) below.
10.A copy of a document may be—
(a)a photocopy; or
(b)in an electronic form in any of the following electronic formats—
.doc and .docx—Microsoft Word documents
.pdf—Adobe Acrobat documents
.xls and .xlsx—Microsoft Excel spreadsheets
.jpg—image files
.rtf—rich text format
.gif—graphics interchange format
.tif—tagged image format
any other format agreed with the issuing party.
Applications in relation to subpoena
11.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 any claim you may have for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena.
Loss or expense of compliance
12.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 respect of any loss or expense, including any legal costs, reasonably incurred in complying with the subpoena.
Contempt of court—arrest
13.Failure to comply with a subpoena without lawful excuse is a contempt of court and may be dealt with accordingly.
14.Note 13 is without prejudice to any power of the Court under section 134 of the Magistrates' Court Act 1989.
DECLARATION BY ADDRESSEE (SUBPOENA RECIPIENT)
You must complete the declaration below. The completed declaration must be included in the subpoena or in the copy of the subpoena when you produce the subpoena or the copy with the documents required by the subpoena.
If you declare that the material you produce is copies of documents, the registrar may, without further notice to you, destroy the copies after the expiry of 4 months from the conclusion of the proceeding or, if the documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.
If you declare that the material you produce is or includes any original document, the Court will return all of the material to you at the address specified by you in the Declaration below.
[tick the relevant option below, provide your address as appropriate,
sign and date]
£All copied documents
All of the material I am providing in compliance with this subpoena is copies of documents. I acknowledge that the Court will destroy the copies once they are no longer required, without further notice to me.£Some original documents
Some or all of the material I am providing in compliance with this subpoena is an original document. Once the material is no longer required, all of the material should be returned to me at the following address—
[insert address for return of material].
Date:
[signature of addressee]
[name of addressee]
__________________
FORM 42C
Rule 42.03(1)(c)
SUBPOENA BOTH TO ATTEND TO GIVE EVIDENCE AND TO PRODUCE
[heading as in Form 5A]
To [name]
of [address]:
YOU ARE ORDERED both to attend to give evidence and to produce this subpoena or a copy of it and the documents or things specified in the Schedule of documents: see below for details.
Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest.
You should read all of the Notes set out in this subpoena. Also, you must complete the Declaration by Addressee (Subpoena Recipient) set out at the end of this subpoena.
The last day for service of this subpoena is: [date]. (See Note 1)
Date:
[Seal of the Court]
Issued at the request of [name of party], whose address for service is:
Place:
Email:
Details of subpoena
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.
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 of documents 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 of documents below to the registrar at the address below, or if there is more than one address below, at any one of those addresses, so that they are received not less than 2 clear business days before the date specified for attendance and production. (See Notes 5 to 11).
Date, time and place at which to attend to produce the subpoena or a copy of it and the documents or things 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:
Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or sent:
The registrar
Magistrates' Court of Victoria
at [venue]
SCHEDULE OF DOCUMENTS
The documents and things you must produce are as follows:
[List the documents or things. Attach list if insufficient space.]
NOTES
Last day for service
1.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
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 date 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 requirements of the subpoena unless a sum of money or its equivalent (such as pre-paid travel) sufficient to meet your reasonable expenses of attending, as required by the subpoena and returning after so attending, is provided or tendered to you a reasonable time before the day on which your attendance is required.
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 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 to that extent by delivering or sending the subpoena (or a copy of it) and the document or thing to the registrar—
(a)at the address specified in the subpoena for the purpose; or
(b)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 the subpoena for attendance and production or if you receive notice of a later date or time from the issuing party, before the later date or time.
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 registrar 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 registrar 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 registrar, produce a list of the documents or things produced.
Production of copy instead of original
9.Unless the subpoena specifically requires you to produce an original, you may produce a copy of any document that the subpoena requires you to produce. If you are producing copies, you are encouraged to produce them in electronic form.
10.Electronic copies of documents can be provided on a memory card or stick in any of the formats referred to in paragraph 11(b) below.
11.A copy of a document may be—
(a)a photocopy; or
(b)in an electronic form in any of the following electronic formats—
.doc and .docx—Microsoft Word documents
.pdf—Adobe Acrobat documents
.xls and .xlsx—Microsoft Excel spreadsheets
.jpg—image files
.rtf—rich text format
.gif—graphics interchange format
.tif—tagged image format
any other format agreed with the issuing party.
Applications in relation to subpoena
12.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 any claim you may have for privilege, public interest immunity or confidentiality in relation to any evidence you may be required to give under the subpoena or any document or thing the subject of the 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 any loss or expense, including any legal costs, reasonably incurred in complying with the subpoena.
Contempt of court—arrest
14.Failure to comply with a subpoena without lawful excuse is a contempt of court and may be dealt with accordingly.
15.Note 14 is without prejudice to any power of the Court under section 134 of the Magistrates' Court Act 1989.
DECLARATION BY ADDRESSEE (SUBPOENA RECIPIENT)
You must complete the declaration below. The completed declaration must be included in the subpoena or in the copy of the subpoena when you produce the subpoena or the copy with the documents required by the subpoena.
If you declare that the material you produce is copies of documents, the registrar may, without further notice to you, destroy the copies after the expiry of 4 months from the conclusion of the proceeding or, if the documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.
If you declare that the material you produce is or includes any original document, the Court will return all of the material to you at the address specified by you in the Declaration below.
[tick the relevant option below, provide your address as appropriate,
sign and date]
£All copied documents
All of the material I am providing in compliance with this subpoena is copies of documents. I acknowledge that the Court will destroy the copies once they are no longer required, without further notice to me.£Some original documents
Some or all of the material I am providing in compliance with this subpoena is an original document. Once the material is no longer required, all of the material should be returned to me at the following address—
[insert address for return of material].
Date:
[signature of addressee]
[name of addressee]
__________________".
14Form 42AA substituted
For Form 42AA of the Principal Rules substitute—
'FORM 42AA
Rule 42A.03
SUBPOENA FOR PRODUCTION TO REGISTRAR
[heading as in Form 5A]
To [name]
of [address]:
YOU ARE ORDERED to produce to the registrar this subpoena or a copy of it and the documents or things specified in the Schedule of documents: see below for details.
Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest.
You should read all of the Notes set out in this subpoena. Also, you must complete the Declaration by Addressee (Subpoena Recipient) set out at the end of this subpoena.
The last day for service of this subpoena is: [date]. (See Note 1)
Date:
[Seal of the Court]
Issued at the request of [name of party], whose address for service is:
Place:
Email:
Details of subpoena
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 of documents below to the registrar 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 registrar to which the subpoena (or copy) and documents or things must be delivered or sent is:
The registrar
Magistrates' Court of Victoria
at [venue]
SCHEDULE OF DOCUMENTS
The documents and things you must produce are as follows:
[List the documents or things. Attach list if insufficient space.]
NOTES
Last day for service
1.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
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 date 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.
Question concerning subpoena
4.Any question concerning this subpoena should be directed not to the Court but to the Australian lawyer for the party at whose request the subpoena was issued.
Availability of documents for inspection and at trial
5.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 Australian lawyer, and copies taken.
Objection by addressee to production or inspection
6.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 registrar 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 the Court.
Objection by party served with subpoena to inspection
7.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 registrar 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 the Court.
Objection by plaintiff to production of hospital or medical file or record
8.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 registrar 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 7 days after the day specified in the subpoena for production.
Obligation of issuing party after objection
9.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 registrar 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
10.Documents produced in compliance with this subpoena may not be removed from the custody of the registrar, even for the purpose of their being photocopied, except upon application in writing signed by an Australian lawyer for a party. Rule 42A.11(2) of the Magistrates' Court General Civil Procedure Rules 2010 is then relevant:
"(2)An Australian lawyer who signs an application under paragraph (1) and removes a document from the office of the registrar, undertakes to the Court by force of this Rule that—
(a) the document will be kept in the personal custody of the Australian lawyer or a barrister briefed by the Australian lawyer in the proceeding; and
(b) the document will be returned to the office of the registrar in the same condition, order and packaging in which it was removed, as and when directed by the registrar.".
A breach of this undertaking may be dealt with as a contempt of court.
Production of a number of documents or things
11.If you produce more than one document or thing, you must, if requested by the registrar, produce a list of the documents or things produced.
Production of copy instead of original
12.Unless the subpoena specifically requires you to produce an original, you may produce a copy of any document that the subpoena requires you to produce. Even if the subpoena required the production of the original, you may, if you have the consent of the issuing party, produce a copy, instead of the original, of the document. If you are producing copies of documents, you are encouraged to produce them in electronic form.
13.Electronic copies of documents can be provided on a memory card or stick in any of the formats referred to in paragraph 14(b) below.
14.A copy of a document may be—
(a)a photocopy;
(b)in an electronic form in any of the following electronic formats—
.doc and .docx—Microsoft Word documents
.pdf—Adobe Acrobat documents
.xls and .xlsx—Microsoft Excel spreadsheets
.jpg—image files
.rtf—rich text format
.gif—graphics interchange format
.tif—tagged image format
any other format agreed with the issuing party; or
(c)in any other appropriate form.
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 any claim you may have 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 respect of any loss or expense, including any 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 section 134 of the Magistrates' Court Act 1989.
DECLARATION BY ADDRESSEE (SUBPOENA RECIPIENT)
You must complete the declaration below. The completed declaration must be included in the subpoena or in the copy of the subpoena when you produce the subpoena or the copy with the documents required by the subpoena.
If you declare that the material you produce is copies of documents, the registrar may, without further notice to you, destroy the copies after the expiry of 4 months from the conclusion of the proceeding or, if the documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.
If you declare that the material you produce is or includes any original document, the Court will return all of the material to you at the address specified by you in the Declaration below.
[tick the relevant option below, provide your address as appropriate,
sign and date]
£All copied documents
All of the material I am providing in compliance with this subpoena is copies of documents. I acknowledge that the Court will destroy the copies once they are no longer required, without further notice to me.£Some original documents
Some or all of the material I am providing in compliance with this subpoena is an original document. Once the material is no longer required, all of the material should be returned to me at the following address—
[insert address for return of material].
Date:
[signature of addressee]
[name of addressee]
__________________'.
Part 4—Recovery of Pro Bono Costs amendment
15New Part 3A of Order 63 inserted
After Part 3 of Order 63 of the Principal Rules insert—
"PART 3A—COSTS FOR PRO BONO REPRESENTATION
63.34.1Definitions for this Part
(1)In this Part—
assisted party
means a party receiving legal assistance provided by an Australian lawyer on a pro bono
basis;
legal assistance means any legal services provided in connection with a proceeding in the Court;
pro bono costs order means an order made under Rule 63.34.2(1).
(2)For the purposes of this Part, an Australian lawyer provides legal assistance on a pro bono basis when the Australian lawyer provides legal assistance on the basis that—
(a)the Australian lawyer is to receive no professional fees from or on behalf of the person to or for whom the legal assistance is provided;
(b)the Australian lawyer is to receive such professional fees only to the extent that an order for costs covering such professional fees is made in favour of the assisted party; or
(c)the Australian lawyer is to receive such professional fees only to the extent that payment is made in satisfaction or part satisfaction of such an order for costs.
63.34.2Orders for legal costs
(1)If an Australian lawyer provides legal assistance to an assisted party in a proceeding on a pro bono basis, the Court may make, in favour of the assisted party, any order for the recovery of the costs of the legal assistance that the Court might have made had the legal assistance been provided not on a pro bono basis but on the basis that the assisted party was under an obligation to pay for the legal assistance in the ordinary way.
(2)When making a pro bono costs order, the Court may order that a party or other person against whom the pro bono costs order is made, pay the costs, including any disbursements incurred by the Australian lawyer acting on a pro bono basis, directly to the Australian lawyer instead of to the assisted party.
(3)A payment made to an Australian lawyer acting on a pro bono basis pursuant to an order made under paragraph (2) satisfies the pro bono costs order in favour of the assisted party to the extent of that payment.
63.34.3Taxation or assessment and recovery of legal costs
On the taxation of costs payable to or in favour of an assisted party, the Costs Court must not disallow an item merely because—
(a)the assisted party is, by reason of being an assisted party, under no obligation to pay, in whole or in part, for the service to which the item relates; or
(b)in the case of a disbursement (whether for counsel's fees or otherwise) the amount of the disbursement has not been paid prior to the taxation.".
Dated: 11 October 2018
PETER HENRY LAURITSEN,
Chief MagistrateFELICITY ANNE BROUGHTON,
Deputy Chief MagistrateLANCE IVAN MARTIN,
Deputy Chief Magistrate
═════════════
Endnotes
[1] Rule 4: S.R. No. 140/2010. Reprint No. 3 as at 15 March 2018. Reprinted to S.R. No. 128/2017.
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