Rules of the Supreme Court of the Australian Capital Territory (Amendment) (Cth)
WE,
Judges appointed under subsection 7 (1) of the
Dated 6 October 1989.
JEFFREY MILES
Chief Justice
J. KELLY
Judge
J. F. GALLOP
Judge
P. G. DINGWALL
Registrar
—————
“5. In any action other than one which includes:
(a) a claim by the plaintiff for libel, slander, malicious prosecution, false imprisonment or seduction; or
(b) a claim by the plaintiff based on an allegation of fraud;
the writ of summons may, at the option of the plaintiff, be specially indorsed with or accompanied by a statement of claim.”.
“1.01 In this Part,
“2.01 A reference in this Part to a form by number shall be read as a reference to the form so numbered in the Eleventh Schedule.
“2.02 Where, under this Part, the use of a form in the Eleventh Schedule is required, a form which does not differ materially from the form in the Eleventh Schedule shall, unless the Court otherwise orders, be taken to comply with that requirement.
“3.01 The summons and other
documents intended to be used in an application for bail shall be entitled ‘In
the Supreme Court of the Australian Capital Territory’, ‘In the matter of an
application for bail by [
“3.02 On an application for bail the Court or Judge may give such directions as to service or otherwise as the case requires.
“4.01 In any criminal proceeding, the Court may issue a subpoena to give evidence, a subpoena for production, or a subpoena to give evidence and for production, in the prescribed form or in such other form as the Court directs requiring the attendance or production (or both as the case may be) of or by the person named before the Court or a Judge.
“5.01 Where a party serves a subpoena requiring the person named to attend or produce any document or thing on any day on which that person’s attendance is required the party shall at the time of service pay or tender to the person named in the subpoena a sum sufficient to enable the person to travel by reasonable means to the Court on that day together with an undertaking to pay all reasonable expenses of, and any loss reasonably incurred in, complying with the subpoena.
“5.02 Where the person named is a corporation the sum mentioned in the preceding subrule may be paid or tendered to any person on whom service of the subpoena may be effected.
“5.03 Where a person named in a subpoena receives conduct money which he or she considers inadequate to compensate him or her for expense or loss reasonably incurred in attending as required by the subpoena the person may, having given to the person who caused the subpoena to be served not less than 7 days notice in writing of his or her intention to apply, apply in writing to the taxing officer to determine the amount which is sufficient to compensate him or her for such expense or loss and upon the taxing officer certifying that amount the person who caused the subpoena to be served shall forthwith pay it to the applicant.
“5.04 A certificate issued pursuant to the preceding subrule shall be deemed to be a judgment of the Court against the person who caused the subpoena to be served on the applicant and execution may issue as if it were a judgment under Part 2 of these Rules.
“5.05 The provisions of Order 65
shall be deemed to apply
“6.01 A person required by a subpoena to produce any document or thing in relation to a criminal proceeding, being a subpoena requiring attendance before the Court or a Judge, may, unless the Court otherwise orders, produce the document or thing to the Registrar not later than the day before the first date on which his or her attendance is required, instead of attending and producing the document or thing as required by the subpoena.
“6.02 Where a document or thing is produced to the Registrar pursuant to subrule (1), the Registrar shall:
(a) give a receipt to the person producing the document or thing; and
(b) produce the document or thing as the nature of the case requires or as the Court directs.
“6.03 This rule does not apply to so much of a subpoena as requires the person named to attend to give evidence in any criminal proceeding.
“7.01 Where a person named in a subpoena for production of any document or thing in relation to a criminal proceeding incurs substantial expense or loss over and above that provided for by subrules 5.01 and 5.03 in complying with the subpoena the Court or Judge dealing with the proceeding may order that the party who requested the issue of the subpoena pay to the person so named, in addition to any amount which the person served with the subpoena is entitled to be paid pursuant to subrule 5.01 or 5.03 of this Order, an amount which is sufficient to compensate him or her for such expense or loss reasonably incurred in complying with the subpoena.
“7.02 Where an order is made under the preceding subrule the Court or Judge hearing the matter shall either determine the amount or direct that the amount shall be determined by the taxing officer.
“7.03 An amount determined by the Court or Judge, or the taxing officer, pursuant to the preceding subrule shall be deemed to be a judgment of the Court against the person who caused the subpoena to be served and execution may issue as if it were a judgment under Part 2 of these Rules.
“7.04
The provisions of Order 65 shall be deemed to apply
“8.01 Where the person named in a subpoena is an officer of a bank, the bank is not a party to the criminal proceeding, and the subpoena requires the officer to produce any banker’s book, the contents of which can be proved under legislation in force in the Territory by means other than the production of the book, the subpoena shall, unless the Court otherwise orders, expressly permit the officer to produce proof of the relevant entries in accordance with that legislation, instead of producing the banker’s book.
“8.02 When issuing a subpoena the Registrar shall not be concerned to inquire whether the preceding subrule applies to the subpoena, but the Court may set aside as irregular a subpoena which does not comply with it.
“9.01 Where a party serves a subpoena to produce a document upon a person and that person does not object to its production or to its being made available by the Court for inspection, that party may arrange with that person that the document be sent or delivered to the Registrar.
“9.02 Where such an arrangement is made, the person shall:
(a) post the document to the Registrar so as to reach him or her before the day specified in the subpoena; or
(b) deliver the document to the Registrar before that day;
together with, in either case, the subpoena or a copy thereof, or a schedule giving brief particulars of the document and containing an adequate reference to the proceeding in which the subpoena was issued and the name and address of the person producing the document, and accompanied by a statement in writing that he or she does not object to the production of the document or to its being made available by the Court for inspection by a party.
“9.03 Where a person served with a subpoena to produce a document objects to its production or to its being made available by the Court for inspection by a party, he or she shall not produce the document to the Registrar in accordance with this rule, but shall answer the subpoena by attending the Court in answer to the subpoena and making his or her objection to the Court or Judge.
“9.04 The Registrar shall not, without the leave of the Court or Judge, allow a document produced to him or her in accordance with this rule to be inspected by any party or person, but shall arrange for the document to be available at the hearing for which it is required.
“9.05 The production of a document to the Registrar in accordance with this rule and pursuant to an arrangement with the party who caused the subpoena to be served shall be a sufficient answer to the subpoena, and shall be treated as being in obedience thereto.
“9.06 A subpoena to produce a document shall have endorsed thereon or annexed thereto a written statement commencing with the words ‘Order 80, subrules 9.01 to 9.05, inclusive, of the Rules of Court are as follows:’ and followed by the text of the five preceding subrules.
“9.07 The preceding subrule does not apply in any case where it is intended that the procedure provided for in this rule is not to be followed.
“10.01 On request by a party, the Registrar shall, unless the Court otherwise orders, issue a subpoena to give evidence, a subpoena for production or a subpoena for production and to give evidence.
“10.02 A subpoena shall be issued under seal.
“10.03 A party requesting the issue of a subpoena shall file a copy of the subpoena, but need not file a praecipe for subpoena.
“10.04 A subpoena shall be in the form of one of the forms numbered 1 to 4.
“11.01 The Registrar shall not issue a subpoena for production of any document or thing in the custody of the Court or another court.
“11.02 A party desiring the production of a document or thing in the custody of another court shall request the Registrar to proceed under the following subrule.
“11.03 On receipt of a request under the preceding subrule, the Registrar shall request the court holding the document or thing to send it to the Registrar.
“11.04 The Registrar shall produce the document or thing as the nature of the case requires or as the Court directs.
“12.01 Subject to the following subrule, a subpoena shall be served personally.
“12.02 Where the person named in a subpoena is a medical expert:
(a) service of the subpoena on the expert may be effected at the place where the expert’s practice is carried on, by handing it to some person apparently engaged (whether as servant or otherwise) in the practice and apparently of or above the age of 16 years; and
(b) if, on tender of the subpoena to the person mentioned in paragraph (a), he or she refuses to accept it, the subpoena may be served by putting it down in his or her presence after he or she has been told of the nature of the subpoena; and
(c) where service is effected in accordance with paragraph (a) such service shall be deemed to be personal service on the medical expert.
“13.01 The Court may, on motion by the person named in a subpoena, set aside the subpoena wholly or in part.
“13.02 Notice of a motion under the preceding subrule shall be filed and served on the party at whose request the subpoena was issued.
“14.01 The jurisdiction of the
Court that is exercisable in accordance with subsection 8 (1) of the Act may be
exercised by the Registrar in the hearing and determination of an application
for leave under section 16 of the
“15.01 Any document required to be
executed or any recognisance required to be entered into pursuant to an order
or a sentence of the Court or Judge made in a criminal proceeding whereby a
person binds himself or herself to do or suffer anything may be executed before
the Registrar or a Justice of the Peace.”
FORMS—CRIMINAL PROCEEDINGS
Form 1 Order 80
Subrule 10.04
SUBPOENA TO GIVE EVIDENCE
No. of 19 . |
To
(address)
THE COURT ORDERS that you shall attend for the purposes of giving evidence:
(a) before the Court
(or as the case may be) ;(b) at
(address of Court or place); (c) on
(insert date) at(insert time) and until you are excused from further attending.
If you consider that you have not been paid reasonable expenses of, and any loss reasonably incurred in, complying with this subpoena you may, after having complied with the subpoena, apply, in writing, to the Registrar for a determination of the amount which is sufficient to compensate you for any such expenses or loss, but, before so applying, you must give 7 days notice in writing of your intention so to apply to the person who caused the subpoena to be served on you.
Dated this day of 19 .
By the Court
Note that failure to comply with this subpoena may constitute contempt of court and may result in your arrest. If you think the subpoena is oppressive, you may apply to the Court to have it set aside wholly or in part.
Issued
at the request of
Form 2 Order 80
Subrule 10.04
To
(address)
THE COURT ORDERS that you shall attend and produce this subpoena and the documents and things described in the Schedule for the purposes of evidence:
(a) before the Court
(or as the case may be) ;(b) at
(address of Court or other place) ;(c) on
(insert date) at(insert time) and until you are excused from further attending, but:(i) if you consider that you have not been paid reasonable expenses of, and any loss reasonably incurred in, complying with this subpoena you may, after having complied with the subpoena, apply, in writing, to the Registrar for a determination of the amount which is sufficient to compensate you for any such expenses or loss, but, before so applying, you must give 7 days notice in writing of your intention so to apply to the person who caused the subpoena to be served on you; and
(ii) instead of so attending you may produce this subpoena and the documents and things described in the Schedule to the Registrar of the Court at the above place not later than the day before the first day on which you are required to attend; and
(iii) if, as an officer of a bank, you are required by this subpoena to produce a banker’s book and the following legislation, namely
(insert reference to the legislation in force in the Territory enabling alternative mode of proof of entries in banker’s books) applies, you need not produce it if you produce proof of the relevant entries in it in accordance with that legislation.
SCHEDULE
Dated this day of 19 .
By the Court
Note that failure to comply with this subpoena may constitute contempt of court and may result in your arrest. If you think the subpoena is oppressive, you may apply to the Court to have it set aside wholly or in part.
Issued at the
request of
Form 3 Order 80
Subrule 10.04
SUBPOENA FOR PRODUCTION AND TO ANSWER QUESTIONS
To
(address)
THE COURT ORDERS that:
(a) you shall produce this subpoena and the documents and things described in the Schedule
for the purposes of evidence by causing your proper officer to attend and produce them:
(i) before the Court
(or as the case may be); (ii) at
(address of Court or other place); (iii) on
(insert date) or, if notice of a later date is given to you, that later date(or state the commencement and concluding dates of sittings of the Court and that notice would be given of a date during those sittings when the subpoena and documents and things are to be produced) at(insert time) and until the officer is excused from further attending, but:(A) if you consider that you have not been paid reasonable expenses of, and any loss reasonably incurred in, complying with this subpoena you may, after having complied with the subpoena, apply to the Registrar for a determination of the amount which is sufficient to compensate you for any such expenses or loss, but, before so applying, you must give 7 days notice in writing of your intention so to apply to the person who caused the subpoena to be served on you; and
(B) you may produce this subpoena and the documents and things described in the Schedule to the Registrar of the Court at the above place by hand or by post in either case so that he or she receives them not later than the day before the first day on which your officer is required to attend; and
(C) if you are a bank and are required by this subpoena to produce a banker’s book and the following legislation, namely
(insert reference to the legislation in force in the Territory enabling alternative mode of proof of entries in banker’s books) applies, you need not cause your officer to produce it if you cause him or her to produce proof of the relevant entries in it in accordance with that legislation; and(b) the officer who is to attend shall make enquiries for the purpose of answer, and, on attending, shall answer, such questions as the Court requires him or her to answer concerning possession or custody of those documents and things.
SCHEDULE
Dated this day of 19 .
By the Court
Note that:
(1) failure to comply with this subpoena may constitute contempt of Court and may result in the sequestration of your property or arrest of one or more of your officers, or both;
(2) documents and things 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 request that they be posted to you at another address given by you;
(3) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(4) if you think the subpoena is oppressive, you may apply to the Court to have it set aside wholly or in part.
Issued at the
request of (
Form 4 Order 80
Subrule 10.04
SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE
(
To (
(
address )
THE COURT ORDERS that you shall attend and produce this subpoena and the documents and things described in the Schedule for the purposes of evidence and that you shall attend for the purposes of giving evidence:
(a) before the Court (
or as the case may be );(b) at (
address of Court or place );(c) on (
insert date ) at (insert time )and until you are excused from further attending, but:(i) if you consider that you have not been paid reasonable expenses of, and any loss reasonably incurred in, complying with this subpoena you may, after having complied with the subpoena, apply, in writing, to the Registrar for a determination of the amount which is sufficient to compensate you for any such expenses or loss, but, before so applying, you must give 7 days notice in writing of your intention so to apply to the person who caused the subpoena to be served on you; and
(ii) instead of producing the documents and things described in the Schedule when so attending, you may produce this subpoena and the documents and things described in the Schedule to the Registrar of the Court at the above place not later than the day before the first day on which you are required to attend; and
(iii) if, as an officer of a bank, you are required by this subpoena to produce a banker’s book and (
insert reference to the legislation in force in the Territory enabling alternative mode of proof of entries in banker’s books )applies, you need not produce it if you produce proof of the relevant entries in it in accordance with that legislation.
SCHEDULE
(
Dated this day of 19 .
By the Court
Note that failure to comply with this subpoena may constitute contempt of court and may result in your arrest. If you think the subpoena is oppressive, you may apply to the Court to have it set aside wholly or in part.
Issued at the
request of (
1. Notified in the
Commonwealth of Australia Gazette on 19 October 1989.2. Statutory Rules 1937 No. 85 as amended to date. For previous amendments
see Note 2 to Statutory Rules 1989 No. 18 andsee also
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