Supreme Court Amendment Rules (No. 3) 2012 (WA)

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3748

GOVERNMENT GAZETTE, WA

3 August 2012

JU301*
Supreme Court Act 1935

Supreme Court Amendment Rules (No. 3) 2012
Made by the Judges of the Supreme Court.
1.             Citation

These rules are the Supreme Court Amendment Rules
(No. 3) 2012.
2.             Commencement
These rules come into operation as follows —

(a) rules 1 and 2 — on the day on which these rules are published in the Gazette;
(b) the rest of the rules — on the day on which the Trans-Tasman Proceedings Act 2010 (Commonwealth) sections 3 to 110 come into operation.
3.             Rules amended
These rules amend the Rules of the Supreme Court 1971.

3 August 2012 GOVERNMENT GAZETTE, WA 3749
4. Order 10 amended

(1) In Order 10 rule 1A(2) delete “Australia” and insert:
Australia, except a writ served on a person in New Zealand
under the Trans-Tasman Proceedings Act 2010
(Commonwealth),
(2) After Order 10 rule 1A(2) insert:

(3A) A writ served on a person in New Zealand has no effect
unless it is served under the Trans-Tasman
Proceedings Act 2010 (Commonwealth).
5. Order 36B amended
Delete Order 36B rule 3(1) and insert:

(1) A subpoena must be in the form of Form No. 22, unless
it is a subpoena for which leave to serve the subpoena
in New Zealand is to be sought under Order 39A, in
which case the subpoena must be in the form of
Form No. 23.
6. Order 39A heading replaced and Order 39A Division 1 heading inserted
Delete the heading to Order 39A and insert:
Order 39A — Trans-Tasman

Proceedings Act 2010 (Commonwealth) rules
Division 1 — General

7. Order 39A amended

(1) In Order 39A rule 1(1) delete the definition of Act and insert:
Act means the Trans-Tasman Proceedings Act 2010
(Commonwealth).

(2) In Order 39A rule 2(1) and (2) after “proceedings” insert:
and NZ judgments

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GOVERNMENT GAZETTE, WA

3 August 2012

(3) After Order 39A rule 2 insert:
Division 2 — Subpoenas to be served in New Zealand

(4) In Order 39A rule 3(1) delete “Leave” and insert:
For the purposes of section 31 of the Act, leave
(5) In Order 39A rule 3(2)(g) delete “14(2) or (3)” and insert:
36
(6) Delete Order 39A rule 3(3).

Note: The heading to amended Order 39A rule 3 is to read:
Leave to serve subpoena (Act s. 31)

(7) Delete Order 39A rule 4(1) and insert:

(1)

An application to the Court under section 35(1) of the Act must be made by filing an application in the form of Form No. 31A.
(8) Delete Order 39A rule 4(4) and insert:

(4) In addition to the requirements of section 35(3) of the
Act, the application must contain the applicant’s
telephone number.
(9) Delete Order 39A rule 4(6) and insert:

(6) For the purposes of section 35(4) of the Act, the
Principal Registrar must serve the copy of the
application, and any accompanying affidavit, in
accordance with Order 72 rule 6.
(10) Delete Order 39A rule 4(8) and (9) and insert:

(8) A request made under section 36(5) of the Act must be
made by filing a notice in the form of Form No. 31B
not later than 7 days after —

(a)

if the request is made by the person named in the subpoena, the date on which the application was filed; or

3 August 2012 GOVERNMENT GAZETTE, WA 3751

(b)

otherwise, the date on which the application is served on the party who obtained leave to serve the subpoena.

(9) A request made under section 36(6)(b) of the Act that
is not made in the application must be made by filing a
request in the form of Form No. 31C.
Note: The heading to amended Order 39A rule 4 is to read:
Setting aside subpoena (Act s. 35 and 36)

(11) Before Order 39A rule 5(1) insert:

(1A) In this rule —
certificate means a certificate referred to in section 38
of the Act.

(12) In Order 39A rule 5(1) delete “under section 16 of the Act, in
accordance with Form No. 31D,”.
(13) In Order 39A rule 5(2)(a) delete “accordance with” and insert:
the form of
(14) In Order 39A rule 5(3):

(a) delete paragraph (a) and insert:

(a) an affidavit of service of —
(i) the subpoena; and
(ii) the order giving leave for the subpoena to be served in New Zealand; and
(iii) the notice referred to in section 32(2) of the Act;

and

(b) delete paragraph (b)(i).

(15) After Order 39A rule 5(3) insert:

(4) It is not necessary to attach the documents referred to
in subrule (3)(a) to the affidavit of service.
(5) A certificate must be in the form of Form No. 31D.
Note: The heading to amended Order 39A rule 5 is to read:

Failure to comply with subpoena (Act s. 38)

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GOVERNMENT GAZETTE, WA

3 August 2012

(16) After Order 39A rule 5 insert:
Division 3 — Remote appearances from New Zealand

6A. Appearances by audio link or audiovisual link
(Act s. 48)

(1) An application for leave under section 48(1) of the Act
may be made orally or by summons.
(2) The application must be supported by an affidavit
stating the following —

(a) the reasons why the applicant or the applicant’s lawyer can more conveniently participate in the hearing from New Zealand;
(b) which audio link or audiovisual link facilities are available for the hearing or can reasonably be made available;
(c) that the requirements of section 51 or 52, as the case requires, of the Act can be met;
(d) if leave is sought for the applicant’s lawyer to appear before the Court, and the lawyer is not entitled to appear before the Court —
(i) that the lawyer is a qualified NZ lawyer; and
(ii) the applicant ordinarily resides or, if the applicant is not an individual, has its principal place of business, in New Zealand.

(17) In Order 39A rule 6(1) delete “a direction under section 25” and
insert:
leave under section 50(1)
(18) In Order 39A rule 6(2):

(a) in paragraph (g) before “facilities” insert:
audio link or audiovisual link

(b) in paragraph (h) delete “26 or 27” and insert:
51 or 52, as the case requires,

3 August 2012 GOVERNMENT GAZETTE, WA 3753

(19) In Order 39A rule 6(3) delete “the application,” and insert:
leave,
(20) In Order 39A rule 6(4) delete “video link or telephone, the
Principal Registrar may be directed” and insert:
audio link or audiovisual link, the Court may direct the Principal
Registrar

Note: The heading to amended Order 39A rule 6 is to read:
Evidence by audio link or audiovisual link (Act s. 50)

(21) Delete Order 39A rule 7.
(22) At the end of Order 39A insert:
Division 4 — Registration and enforcement of
NZ judgments

7. Setting aside registration of NZ judgment (Act s. 72)

(1) An application under section 72(2) of the Act must be
made by filing a notice of originating motion in the
form of Form No. 64.
(2) The application must be supported by an affidavit
setting out the facts and grounds on which the
application is made.
(3) The notice of originating motion and the accompanying
affidavit must be served on the entitled person not less
than 7 clear days before the day named in the notice for
hearing the motion.
8. Stay of enforcement of registered NZ judgment (Act s. 76)

(1) An application under section 76(3) of the Act must be
made by filing a notice of originating motion in the
form of Form No. 64.
(2) The application must be supported by an affidavit
setting out the facts and grounds on which the
application is made.
(3) The notice of originating motion and the accompanying
affidavit must be served on the entitled person not less
than 7 clear days before the day named in the notice for
hearing the motion.

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GOVERNMENT GAZETTE, WA

3 August 2012

8. Schedule 2 amended

(1) In Schedule 2 Form 23 delete “section 16 of the Evidence Amendment
Act 1994 of New Zealand.” and insert:
the Evidence Act 2006 (New Zealand) section 165.
(2) Delete Schedule 2 Form 23A.
(3) In Schedule 2 Form 31A:

(a) delete “The applicant seeks” and insert:
Under the Trans-Tasman Proceedings Act 2010 (Commonwealth)
section 35, the applicant seeks
(b) delete “video link or telephone.” and insert:
audio link or audiovisual link.

(c) delete “[Applicant’s address, telephone number and, if applicable,
fax number for service.]” and insert:
[Applicant’s address for service and telephone number.]

(4) Delete Schedule 2 Form 31B and insert:

31B. Request for application to be determined with hearing
(O. 39A r. 4(8))

(Heading as in order for leave to issue subpoena)

Under the Trans-Tasman Proceedings Act 2010 (Commonwealth)
section 36(5), the [identify person] requests that the application to set aside
the subpoena [identify subpoena] be determined with a hearing.
Dated:
[Signature of applicant or applicant’s solicitor]

3 August 2012 GOVERNMENT GAZETTE, WA 3755

(5) Delete Schedule 2 Form 31C and insert:

31C. Request to appear remotely in hearing to set aside
subpoena (O. 39A r. 4(9))
(Heading as in order for leave to issue subpoena)

1.         Under the Trans-Tasman Proceedings Act 2010 (Commonwealth) section 36(6)(b), the [identify person] requests to appear remotely in the hearing of the application to set aside the subpoena [identify subpoena].
2.         The applicant was [served/purportedly served*] with the subpoena in New Zealand under the Trans-Tasman Proceedings Act 2010 (Commonwealth) Part 5 Division 2.
3.         A remote appearance medium is, or can reasonably be made, available for the hearing.
4.         The remote appearance can be made from [place in New Zealand].

5.
The [audio link/audiovisual link*] facilities are available at is to be made].
6.         I estimate the remote appearance will take [amount of time for remote appearance].
*[Select one]
Dated:
[Signature of applicant or applicant’s solicitor]

(6) Delete Schedule 2 Form 31D and insert:

31D. Certificate of non-compliance with subpoena
(O. 39A r. 5)

To: The High Court of New Zealand
[Address]
Under the Trans-Tasman Proceedings Act 2010 (Commonwealth) section 38, the [issuing Australian court] certifies as follows —

1. dateTrans-Tasman Proceedings Act 2010
(Commonwealth) section 31, the [issuing Australian court] gave
On [] under the New Zealand. Copies of the subpoena and the order giving leave are attached.
2. On [date] the subpoena was served on [identify person].

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GOVERNMENT GAZETTE, WA

3 August 2012

3.
been made. An application to set aside the subpoena was dismissed
*No application to set aside the subpoena either wholly or in part has certificate.
4. On [date] [identify person] failed to comply with the subpoena.

*[Delete the inapplicable]
Dated:
BY THE COURT
[Signature of appropriate officer]

Note: The seal of the court is to be affixed.

Date: 30 July 2012.
Judges’ signatures:
Chief Justice MARTIN

Justice McKECHNIE Justice CHANEY
Justice McLURE Justice MARTIN
Justice PULLIN Justice MURPHY
Justice HEENAN Justice HALL
Justice Le MIERE Justice MAZZA
Justice JENKINS Justice PRITCHARD
Justice BUSS Justice ALLANSON
Justice BEECH Justice EDELMAN
Justice NEWNES

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Supreme Court Amendment Rules (No. 3) 2012 (WA)

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(a)	rules 1 and 2 — on the day on which these rules are published in the Gazette;
(b)	the rest of the rules — on the day on which the Trans-Tasman Proceedings Act 2010 (Commonwealth) sections 3 to 110 come into operation.

(1)	In Order 10 rule 1A(2) delete “Australia” and insert:
Australia, except a writ served on a person in New Zealand under the Trans-Tasman Proceedings Act 2010 (Commonwealth),
(2)	After Order 10 rule 1A(2) insert:

(2)	In Order 39A rule 2(1) and (2) after “proceedings” insert:
and NZ judgments

(9)	A request made under section 36(6)(b) of the Act that is not made in the application must be made by filing a request in the form of Form No. 31C.
Note:	The heading to amended Order 39A rule 4 is to read:
Setting aside subpoena (Act s. 35 and 36)

(1A)	In this rule —
*certificate* means a certificate referred to in section 38 of the Act.

(12)	In Order 39A rule 5(1) delete “under section 16 of the Act, in accordance with Form No. 31D,”.
(13)	In Order 39A rule 5(2)(a) delete “accordance with” and insert:
the form of
(14)	In Order 39A rule 5(3):

6A.	Appearances by audio link or audiovisual link (Act s. 48)
(1)	An application for leave under section 48(1) of the Act may be made orally or by summons.
(2)	The application must be supported by an affidavit stating the following —

(a)	the reasons why the applicant or the applicant’s lawyer can more conveniently participate in the hearing from New Zealand;
(b)	which audio link or audiovisual link facilities are available for the hearing or can reasonably be made available;
(c)	that the requirements of section 51 or 52, as the case requires, of the Act can be met;
(d)	if leave is sought for the applicant’s lawyer to appear before the Court, and the lawyer is not entitled to appear before the Court —

(17)	In Order 39A rule 6(1) delete “a direction under section 25” and insert:
leave under section 50(1)
(18)	In Order 39A rule 6(2):

(21)	Delete Order 39A rule 7.
(22)	At the end of Order 39A insert:

(1)	An application under section 72(2) of the Act must be made by filing a notice of originating motion in the form of Form No. 64.
(2)	The application must be supported by an affidavit setting out the facts and grounds on which the application is made.
(3)	The notice of originating motion and the accompanying affidavit must be served on the entitled person not less than 7 clear days before the day named in the notice for hearing the motion.

(1)	An application under section 76(3) of the Act must be made by filing a notice of originating motion in the form of Form No. 64.
(2)	The application must be supported by an affidavit setting out the facts and grounds on which the application is made.
(3)	The notice of originating motion and the accompanying affidavit must be served on the entitled person not less than 7 clear days before the day named in the notice for hearing the motion.

(1)	In Schedule 2 Form 23 delete “section 16 of the Evidence Amendment Act 1994 of New Zealand.” and insert:
the Evidence Act 2006 (New Zealand) section 165.
(2)	Delete Schedule 2 Form 23A.
(3)	In Schedule 2 Form 31A:

(a)	delete “The applicant seeks” and insert:
Under the Trans-Tasman Proceedings Act 2010 (Commonwealth) section 35, the applicant seeks
(b)	delete “video link or telephone.” and insert:

31D.	Certificate of non-compliance with subpoena (O. 39A r. 5)
To:	The High Court of New Zealand
[Address]

Justice McKECHNIE	Justice CHANEY
Justice McLURE	Justice MARTIN
Justice PULLIN	Justice MURPHY
Justice HEENAN	Justice HALL
Justice Le MIERE	Justice MAZZA
Justice JENKINS	Justice PRITCHARD
Justice BUSS	Justice ALLANSON
Justice BEECH	Justice EDELMAN
Justice NEWNES