Supreme Court Amendment (Subpoenas) Rules 2017 (WA)
!2017098GG!
WESTERN 2565 AUSTRALIAN GOVERNMENT
ISSN 1448-949X (print) ISSN 2204-4264 (online)
| PRINT POST APPROVED PP665002/00041 |
PERTH, WEDNESDAY, 24 MAY 2017 No. 98 SPECIAL PUBLISHED BY AUTHORITY KEVIN J. McRAE, GOVERNMENT PRINTER AT 12.00 NOON
© STATE OF WESTERN AUSTRALIA
Supreme Court Act 1935
Supreme Court Amendment (Subpoenas)
Rules 2017
Made by the judges of the Supreme Court.
Part 1 — Preliminary matters
1. Citation
These rules are the Supreme Court Amendment (Subpoenas)
Rules 2017.
2. Commencement
These rules come into operation as follows —
(a) Part 1 — on the day on which these rules are published in the Gazette; (b) the rest of the rules — on the 14th day after that day.
3. Rules amended
These rules amend the Rules of the Supreme Court 1971.
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Part 2 — Amendments about subpoenas
4. Order 36B amended
(1) In Order 36B rule 1(1) insert in alphabetical order:
Registry means the Central Office;
(2) In Order 36B rule 1(2) after “give” (1st occurrence) insert: oral (3) Delete Order 36B rule 2(2) and insert:
(2) An issuing officer must not issue either a subpoena to
attend to give evidence or a subpoena to produce —
(a) if a written law or a law of another Australian jurisdiction prohibits its issue; or (b) if a written law or a law of another Australian jurisdiction prohibits its issue except with the Court’s leave and the Court has not given that leave; or
(c) if the Court has ordered that the subpoena not be issued; or (d) if the Court has ordered that the subpoena not be issued without the Court’s leave and the Court has not given that leave.
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(2A) An issuing officer must not issue a subpoena to attend
to give evidence unless —
(a) the oral evidence of the addressee is required at one of the following — (i) a trial of substantive issues in a proceeding;
(ii) an assessment of damages under Order 34 rule 18;
(iii) a trial ordered under Order 35 to be before a referee or other person;
(iv) an examination ordered under Order 38 to be before an examiner;
(v) any other proceeding at which, under an express provision of a written law, the attendance of a person may be enforced by a subpoena;
and (b)
a date has been set for the trial, assessment, examination or proceeding.
(2B) An issuing officer must not issue a subpoena to
produce —
(a) if it would require the production of a document or thing in the custody of the Court or another court; or (b) in a proceeding in which a defence is required to be filed, unless — (i) the defence has been filed; or
(ii) the Court has given leave for the subpoena to be issued; or
(iii) the subpoena is being issued under Order 73 rule 20(2);
or
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(c) in a proceeding in which a defence is not required to be filed, unless — (i) the date and time for production is the date and time of a trial; or
(ii) the Court has given leave for the subpoena to be issued.
(2C) A party may apply for leave under subrule (2B)(b)
or (c) without notice to any other party.(2D) The Court must not give leave under subrule (2B)(b)
or (c) unless satisfied there are exceptional
circumstances.(2E) If the Court gives leave to issue a subpoena to produce,
it must set the date and time for production to be
specified in the subpoena which must be —
(a)
the date and time of the trial in the proceeding at which production is required; or
(b) an earlier date and time.
(4) Delete Order 36B rule 3(1) and insert:
(1) Subject to subrule (1A) —
(a)
a subpoena to attend to give evidence must be in the form of Form 21;
(b)
a subpoena to produce must be in the form of Form 21A;
(c)
a subpoena both to attend to give evidence and to produce must be in the form of Form 21B.
(1A)
Subrule (1) does not apply to a subpoena issued in proceedings under the Trans-Tasman Proceedings Act 2010 (Commonwealth).
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(5) Delete Order 36B rule 3(4), (5), (6) and (7) and insert:
(4) A subpoena to attend to give evidence must specify the
date and time and place at which the addressee is to
attend.(5) A subpoena to produce must specify —
(a) the date and time for production which must be — (i) if the Court has given leave for the subpoena to be issued, the date and time set by the Court when giving leave; or
(ii) otherwise, the date and time of the trial which the addressee is to attend, or a date and time permitted by the issuing officer or a registrar;
and
(b) the place for production which must be — (i) the address of the Court; or
(ii) the address of a person authorised to take evidence in the proceeding as permitted by the Court.
(6) Delete Order 36B rules 3A, 4 and 5 and insert: 4. Service of subpoenas
(1) A subpoena must be served personally on the
addressee.(2) As soon as practicable after a subpoena is served on the
addressee, the issuing party must serve a copy of it on
each other party.
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Part 2 Amendments about subpoenas r. 4 5. Party may request notice that subpoena to produce has been obeyed
(1) A party may, in writing, request the Court to inform the
party whether any document or thing has been
produced to the court under a subpoena to produce.(2) If a party has made a request under subrule (1), a
registrar must inform the party whether any document
or thing has been produced and, if so, include a
description, in general terms, of the documents and
things produced.
5A. Altering date for attendance or production
(1) This rule does not apply to a subpoena to produce that
has been issued with the leave of the Court under
rule 2(2B)(b)(ii) or (c)(ii).(2) The issuing party may give the addressee of a subpoena
notice of a date or time later than the date or time
specified in the subpoena as the date or time for
attendance or for production or for both.(3) The later date or time specified in a notice given under
subrule (2) must be —
(a)
if the subpoena is a subpoena to attend to give evidence, a later date and time of a trial, assessment, examination or proceeding referred to in rule 2(2A);
(b)
if the subpoena is a subpoena to produce in which the date and time for production is the date and time of a trial — a later date and time of a trial;
(c)
if the subpoena is a subpoena to produce in which the date and time for production is not the date and time of a trial — any later date and time.
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(4) As soon as practicable after giving a notice under
subrule (2), the issuing party must —
(a) file a copy of the notice; and (b) serve a copy of the notice on each other party.
(5) The notice need not be served personally. (6)
If notice is given under subrule (2), the subpoena has effect as if the date or time notified were specified in the subpoena instead of the date or time originally
specified in the subpoena.
(7) Delete Order 36B rule 6(7)(b) and insert:
(b)
in an electronic format that the subpoena indicates will be acceptable on a CD-ROM, DVD or USB device, unless the Court, on an application made by a party or the addressee, has directed otherwise.
(8) Delete Order 36B rule 7(1) and insert:
(1)
This rule applies if, under a subpoena to produce, the addressee produces a document or thing to the Court otherwise than at a trial.
(9) Delete Order 36B rule 7(3) and insert:
(3) If the addressee produces more than 1 document or
thing, the addressee must provide a list of them.Note: The heading to amended rule 7 is to read: Production otherwise than at a trial
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(10) Delete Order 36B rule 8 and insert: 8. Setting aside subpoena to attend to give evidence
(1) This rule applies if a subpoena to attend to give
evidence has been issued in a proceeding.(2)
On a request by the addressee, a party or any other person with a sufficient interest, the Court may set aside the subpoena or grant other relief in respect of it.
(3) A request under this rule may be made before the date
and time for attendance specified in the subpoena.(4) Subrule (3) does not limit when a request under this
rule may be made.(5) A request under this rule must be made in accordance
with rule 8B.
8A. Setting aside subpoena to produce and directions as
to things to be produced
(1) This rule applies if a subpoena to produce has been
issued in a proceeding.(2)
On a request by the addressee, a party or any other person with a sufficient interest, the Court may, by order —
(a) set aside the subpoena or part of it; or (b)
make or vary directions in relation to removing from and returning to the Court, and the inspection, copying and disposal, of any document or thing that has been or is to be produced under it; or
(c) grant other relief in respect of it.
(3) A request under this rule may be made before the date
and time for production specified in the subpoena.
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(4) Subrule (3) does not limit when a request under this
rule may be made.(5) A request under this rule must be made in accordance
with rule 8B.(6) While a request made under this rule is pending, the
Registry must not permit any, or any further inspection,
copying, removal or disposal of any document or thing
to which the request relates.
8B. How requests under r. 8 and 8A to be made
(1) A request under rule 8 or 8A must be made by way of a
letter to the Principal Registrar unless —
(a) the request is made orally during a case management conference held under Order 4A, or during a hearing, by a party to the proceeding in which the subpoena has been issued; or (b) a motion or summons is justified by the circumstances of the particular case or the nature of the request, in which case the request may be made by way of motion or summons; or (c) Supreme Court (Corporations) (WA)
Rules 2004 apply to the proceeding in whichthe request must be made under those rules.
(2) A request under rule 8 or 8A made by letter must
state —
(a) the grounds of the request; and (b) the order, direction or relief sought.
(3) The person making a request under rule 8 or 8A by
letter must —
(a) file it; and
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(b) serve a copy of it on the issuing party.
(4) Even if a person has made a request under rule 8 or 8A
by letter in accordance with this rule, the Principal
Registrar or a case manager (as defined in Order 4A
rule 1) may direct the person to make the request in
some other manner.
(11) Delete Order 36B rule 9 and insert: 9. Inspecting and dealing with documents and things produced otherwise than at a trial
(1)
This rule applies if, under a subpoena to produce, the addressee produces a document or thing to the Court otherwise than at a trial.
(2) After the date and time for production specified in the
subpoena, a registrar, subject to —
(a)
any direction made or relief granted under rule 8A; and
(b) rule 8A(6) and this rule,
may permit any party to the proceeding to inspect, copy
or remove any document or thing produced under thesubpoena.
(3) A document or thing produced cannot be removed from
the Registry except on a written application that is
signed by the solicitor for a party and approved by —
(a) a registrar; or (b)
a Court officer authorised in writing for the purposes of this subrule by the Chief Justice.
(4) An application made under subrule (3) may be
approved with or without conditions, or refused.
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(5) A solicitor who signs an application under subrule (3)
and removes a document or thing from the Registry,
undertakes to the Court by force of this rule that —
(a)
the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and
(b)
the document or thing will be returned to the Registry in the same condition, order and packaging in which it was removed, as and when directed by a registrar.
(12) In Order 36B rule 10(2) delete “the registrar” (1st occurrence) and insert: a registrar (13) In Order 36B rule 10(6) delete “The registrar” and insert: A registrar (14) In Order 36B rule 13(3) delete “the registrar” (1st occurrence) and insert: a registrar (15) In the provisions listed in the Table delete “registrar” and insert: Registry
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Table
Order 36B rule 6(4)(b) Order 36B rule 7(2) Order 36B rule 7(5) (16) In the provisions listed in the Table delete “the registrar” and insert: a registrar
Table
Order 36B rule 9(2) Order 36B rule 9(7) Order 36B rule 10(1) Order 36B rule 10(5) Order 36B rule 13(1) Order 36B rule 13(2) 5. Order 39A amended
At the beginning of Order 39A Division 2 insert:
2A. Form of subpoenas If it is to be served in New Zealand —
(a)
a subpoena to attend to give evidence must be in the form of Form 23;
(b)
a subpoena to produce the subpoena and a document or thing must be in the form of Form 23A;
(c)
a subpoena both to attend to give evidence and to produce the subpoena and a document or thing must be in the form of Form 23B.
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6. Order 73 amended
In Order 73 rule 20(2) delete “by a master”.
7. Schedule 2 amended
(1) After Schedule 2 Form 20 insert: 21. Subpoena to give oral evidence (O. 36B r. 3(1))
Supreme Court of Western Australia No.: *General Division/Court of Appeal Subpoena to give oral evidence Parties1 Plaintiff Defendant To [Name and address] Order You are ordered to attend the Supreme Court to give
oral evidence. See details below.
Failure to comply with this subpoena without lawful
excuse is a contempt of court and may result in your
arrest.
Please read Notes 1 to 8 at the end of this subpoena.Last date for The last date for service of this subpoena is [date]. service [see Note 1] Issuing details Issued at the request of: [Name of party] Address for service: [see Order 71A rule 3] Email:
Date of issue: [Seal or stamp of the Court] Details of Date, time and place at which you must attend to give oral subpoena evidence, unless you receive a 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 1. You need not comply with this subpoena unless it is service served on you on or before the date specified in it as the last date for service of the subpoena.
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Informal 2. Even if this subpoena has not been served personally on service you, you must, nevertheless, comply with it if you have, by the last date for service of the subpoena, actual
knowledge of it and of its requirements.Addressee a 3. If the subpoena is addressed to a corporation, the corporation corporation must comply with the subpoena by its appropriate or proper officer. Conduct 4. You need not comply with this subpoena unless conduct money money sufficient to meet your reasonable expenses of attending as required by the subpoena is handed or
tendered to you a reasonable time before the date your
attendance is required.Applications in 5. You have the right to apply to the Court for an order relation to setting aside this subpoena or for other relief in respect subpoena of it. Loss or 6. If you are not a party to the proceeding, you may apply expense of to the Court for an order that the issuing party pay an compliance amount (in addition to conduct money and any witness’s expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying
with this subpoena.Contempt of 7. Failure to comply with a subpoena without lawful court—arrest 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 any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.
Footnotes to Form 21 —
* Delete the inapplicable. 1. If there is more than one of any party, include the additional parties’ names and types of party in a schedule to the subpoena. 21A. Subpoena to produce documents (O. 36B r. 3(1)) Supreme Court of Western Australia No.: *General Division/Court of Appeal Subpoena to produce
documentsParties1 Plaintiff Defendant To [Name and address]
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Order You are ordered to attend the Supreme Court and
produce this subpoena or a copy of it and the documents
or things specified in the Schedule of documents. See
details below.
Failure to comply with this subpoena without lawful
excuse is a contempt of court and may result in your
arrest.
Please read Notes 1 to 12 at the end of this subpoena.Last date for The last date for service of this subpoena is [date]. service [see Note 1] Issuing details Issued at the request of: [Name of party] Address for service: [see Order 71A rule 3] Email:
Date of issue: [Seal or stamp of the Court] Details of You must comply with this subpoena — subpoena
(a)
by attending the Court and producing this subpoena or a Schedule of documents below at the date, time and place specified below; or
(b) by delivering or posting this subpoena or a copy of it documents below to the Court at the address below, so that they are received not less than 2 clear days before the date specified below. (See Notes 5-8)
Date, time and place at which you must attend and produce things may be delivered or posted:
this subpoena or a copy of it and the documents or things,
unless you receive a notice of a later date or time from the
issuing party, in which case the later date or time is
substituted —
Date:
Time:
Place:
* Supreme Court of Western Australia
David Malcolm Justice Centre
Level 11, 28 Barrack Street
Perth WA 6000* Supreme Court of Western Australia
Court of Appeal Office
Stirling Gardens, Barrack Street
Perth WA 6000
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The documents and things you must produce are as follows:
[List the documents or things and state whether the original of any documentis required. If insufficient space, attach list.]
Notes
Last day for 1. You need not comply with this subpoena unless it is service served on you on or before the date specified in it as the
last date for service of the subpoena.Informal 2. Even if this subpoena has not been served personally on service you, you must, nevertheless, comply with it if you have,
by the last date for service of the subpoena, actual
knowledge of it and of its requirements.Addressee a 3. If this subpoena is addressed to a corporation, the corporation corporation must comply with the subpoena by its
appropriate or proper officer.Conduct 4. You need not comply with this subpoena unless conduct money money sufficient to meet your reasonable expenses of attending as required by the subpoena is handed or
tendered to you a reasonable time before the date your
attendance is required.Production of 5. Instead of attending the Court and producing this subpoena or subpoena (or a copy of it) and the documents or things, copy of it and you may comply with this subpoena by delivering or documents or posting the subpoena (or a copy of it) and the things by documents or things to the Court at the address delivery or specified in the subpoena so that they are received not post less than 2 clear 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.Production of 6. If you produce more than one document or thing, you a number of must include with them a list of them. documents or things Production of 7. Unless the Schedule of documents says the original of a copy instead of document listed in the Schedule is required, you may original produce a copy of it instead.
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8. The copy of a document may be —
(a) a photocopy; or (b) in an electronic form on a CD-ROM, DVD or USB 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
Applications in 9. You have the right to apply (before or after complying relation to with this subpoena) to the Court for an order — subpoena (a) setting aside this subpoena (or a part of it);
(b)
giving directions in relation to removing from and returning to the Court, and the inspection, copying and disposal, of any document or thing that you
produce or are required to produce by this
subpoena;
(c) giving other relief in respect of it. Unless the Court has made such an order, a registrar may permit the parties to the proceeding to inspect, copy, or remove and return any document or thing you
produce under this subpoena.
Loss or 10. If you are not a party to the proceeding, you may apply expense of to the Court for an order that the issuing party pay an compliance amount (in addition to conduct money and any
witness’s expenses) in respect of the loss or expense,including legal costs, reasonably incurred in complying
with this subpoena.Contempt of 11. Failure to comply with a subpoena without lawful court—arrest excuse is a contempt of court and may be dealt with
accordingly.12.
Note 11 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who
defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.
Footnotes to Form 21A —
* Delete the inapplicable. 1. If there is more than one of any party, include the additional parties’ names and types of party in a schedule to the subpoena.
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21B. Subpoena to give oral evidence and produce documents
(O. 36B r. 3(1))Supreme Court of Western Australia No.: *General Division/Court of Appeal Subpoena to give oral evidence
and produce documentsParties1 Plaintiff Defendant To [Name and address] Order You are ordered to attend the Supreme Court to give
oral evidence and to produce this subpoena or a copy of
it and the documents or things specified in the Schedule
of documents. See details below.
Failure to comply with this subpoena without lawful
excuse is a contempt of court and may result in your
arrest.
Please read Notes 1 to 12 at the end of this subpoena.Last date for The last date for service of this subpoena is [date]. service [see Note 1] Issuing details Issued at the request of: [Name of party] Address for service: [see Order 71A rule 3] Email:
Date of issue: [Seal or stamp of the Court] Details of In so far as this subpoena requires you to attend to give oral subpoena 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.
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Insofar as this subpoena requires you to attend to produce the subpoena or a copy of it and documents or things, you must comply with that requirement —
(a) by attending to produce this subpoena or a copy of it documents below at the date, time and place specified for attendance and production; or
(b)
Date, time and place at which you must attend to produce the subpoena or a copy of it and the documents or things, unless you receive a notice of a later date or time from the issuing party, in which case the later date or time isby delivering or posting this subpoena or a copy of it documents below to the Court at the address below so that they are received not less than 2 clear days before the date specified for attendance and production. (See Notes 5–8)
substituted — things may be delivered:
Date:
Time:
Place:
* Supreme Court of Western Australia
David Malcolm Justice Centre
Level 11, 28 Barrack Street
Perth WA 6000* Supreme Court of Western Australia
Court of Appeal Office
Stirling Gardens, Barrack StreetPerth WA 6000
Schedule of documents
The documents and things you must produce are as follows:
[List the documents or things and whether the original of any document isrequired. If insufficient space, attach list.]
Notes
Last day for 1. You need not comply with this subpoena unless it is service served on you on or before the date specified in it as the
last date for service of the subpoena.
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Informal 2. Even if this subpoena has not been served personally on service you, you must, nevertheless, comply with it if you have,
by the last date for service of the subpoena, actual
knowledge of it and of its requirements.Addressee a 3. If the subpoena is addressed to a corporation, the corporation corporation must comply with the subpoena by its
appropriate or proper officer.Conduct 4. You need not comply with this subpoena unless conduct money money sufficient to meet your reasonable expenses of
attending as required by the subpoena is handed or
tendered to you a reasonable time before the date your
attendance is required.Production of 5. Insofar as this subpoena requires you to attend and subpoena or produce the subpoena (or a copy of it) and documents or copy of it and things, you may, instead of attending, comply with that documents or requirement by delivering or posting the subpoena (or a things by copy of it) and the documents or things to the Court at delivery or the address specified in the subpoena so that they are post received not less than 2 clear 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.Production of 6. If you produce more than one document or thing, you a number of must include with them a list of them. documents or things Production of 7. Unless the Schedule of documents says the original of a copy instead of document listed in the Schedule is required, you may original produce a copy of it instead. 8. The copy of a document may be —
(a) a photocopy; or (b) in an electronic form on a CD-ROM, DVD or USB 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
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Applications in 9. You have the right to apply (before or after complying relation to with this subpoena) to the Court for an order — subpoena (a) setting aside this subpoena (or a part of it);
(b)
giving directions in relation to removing from and returning to the Court, and the inspection, copying and disposal, of any document or thing that you
produce or are required to produce by this
subpoena;
(c) giving other relief in respect of it. Unless the Court has made such an order, a registrar may permit the parties to the proceeding to inspect, copy, or remove and return any document or thing you
produce under this subpoena.
Loss or 10. If you are not a party to the proceeding, you may apply expense of to the Court for an order that the issuing party pay an compliance amount (in addition to conduct money and any
witness’s expenses) in respect of the loss or expense,including legal costs, reasonably incurred in complying
with this subpoena.Contempt of 11. Failure to comply with a subpoena without lawful court—arrest excuse is a contempt of court and may be dealt with
accordingly.12.
Note 11 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who
defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.
Footnotes to Form 21B —
* Delete the inapplicable. 1. If there is more than 1 of any party, include the additional parties’ names and types of party in a schedule to the subpoena. (2) Delete Schedule 2 Form 22.
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(3) In Schedule 2 Form 22A delete paragraph (b) and insert:
(b) in an electronic form on a CD-ROM, DVD or USB 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
(4) Delete Schedule 2 Form 23 and insert: 23. Subpoena to give evidence to WA Supreme Court (to be served in NZ) (O. 39A r. 2A)
Supreme Court of Western Australia No.: *General Division/Court of Appeal Notice attached to subpoena to
give evidence to the Supreme
Court of Western Australia (to be
served in New Zealand)Parties1 Plaintiff Defendant Notice to Trans-Tasman Proceedings Act 2010 (Commonwealth) witness This notice is very important. Please read it and the attached document or documents
very carefully.
If you have any trouble understanding these documents
you should get legal advice as soon as possible.
Attached to this notice is a subpoena requiring you to attend to give evidence to the Supreme Court of Western Australia. The subpoena has been issued by that court.
The subpoena may be served in New Zealand under New
Zealand law (see Evidence Act 2006 (New Zealand)
section 163).This notice —
• sets out your rights relating to the subpoena; and • sets out your obligations relating to the subpoena; and •
includes information about the way in which you may make an application to have the subpoena set aside.
24 May 2017 GOVERNMENT GAZETTE, WA 2587 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
Your rights 1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena. 2. An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: ‘Your obligations’). 3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court that you be paid the additional amount you incurred. 4. You may apply to the Supreme Court to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible. 5. An application can be made and determined without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand. Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice.
Your 6. Unless the subpoena is set aside, you must comply with obligations it if —
(a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either — (i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or
(ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses;
and (b)
you were given with the subpoena a copy of an order by a judge of the Supreme Court giving leave to serve the subpoena in New Zealand; and
(c)
the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and
2588 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7
(d)
service of the subpoena complied with any other conditions specified in the order; and
(e) you are over the age of 18 years.
Failure to 7. If you do not comply with the subpoena you may be comply with arrested and taken before the High Court of New subpoena Zealand. Unless the High Court is satisfied that failure
to comply should be excused, a fine not exceeding
NZ$10 000 may be imposed.Grounds for 8. The Supreme Court must set aside the subpoena if the setting aside a subpoena requires you to attend at a place in Australia subpoena and —
(a)
you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or
(b)
if you complied with the subpoena — you would be liable to be detained for the purpose of serving a sentence; or
(c)
you are being prosecuted or you are liable to prosecution for an offence in Australia; or
(d)
you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Competition and Consumer Act 2010
(Commonwealth)); or
(e) you are subject to a restriction on your movements imposed by law or an order of a court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence). 9. The grounds on which the Supreme Court may set aside the subpoena include —
(a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense; (b) compliance with the subpoena would cause you hardship or serious inconvenience.
Note: The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application.
Procedure for 10. Application must be made to the Supreme Court of applying to set Western Australia. aside a 11. You may fax your application to that Court on fax subpoena number [fax number of the court].
24 May 2017 GOVERNMENT GAZETTE, WA 2589 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
12. Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address.
13. A registrar of the Supreme Court will arrange for service of your application and of any affidavit you lodge with the Court with your application.
14. The Supreme Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing.
15. If there is a hearing, the Supreme Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand.
16. lodging your application, you request that the hearing be
If, in your application or within a reasonable time after must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used.
Supreme Court of Western Australia No.: *General Division/Court of Appeal Subpoena to give evidence to
the Supreme Court of Western
Australia (to be served in New
Zealand)Parties1 Plaintiff Defendant To [Name and address] Order You are ordered to attend the Supreme Court of
Western Australia to give evidence. See details below.
Failure to comply with this subpoena without lawful
excuse is a contempt of court and may result in your
arrest and the imposition of a fine under the Evidence
Act 2006 (New Zealand) section 165.
Please read Notes 1 to 7 at the end of this subpoena.Last date for The last date for service of this subpoena is [date]. service
[see Note 2]
2590 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7
Issuing details Issued at the request of: [Name of party] Address for service: [see Order 71A rule 3] Email:
Date of issue: [Seal or stamp of the Court] Details of Date, time and place at which you must attend the Supreme subpoena Court of Western Australia to give evidence, unless you
receive a 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
Leave to serve 1. You need not comply with this subpoena unless it is subpoena accompanied by —
(a) a copy of the order of a judge of the Supreme Court giving leave to serve the subpoena in New Zealand; and (b) a notice in the prescribed form that — (i) sets out your rights and obligations in relation to the subpoena; and
(ii) includes information about the way in which an application to have the subpoena set aside may be made.
Last day for 2. You need not comply with this subpoena unless it is service served on you on or before the date specified in it as the
last date for service of the subpoena.Informal 3. Even if this subpoena has not been served personally on service you, you must, nevertheless, comply with it if you have,
by the last date for service of the subpoena, actual
knowledge of it and of its requirements.Addressee a 4. If the subpoena is addressed to a corporation, the corporation corporation must comply with the subpoena by its
appropriate or proper officer.Loss or 5. If you are not a party to the proceeding, you may apply expense of to the Supreme Court for an order that the issuing party compliance
pay an amount (in addition to conduct money and any witness’s expenses) in respect of the loss or expense,
including legal costs, reasonably incurred in complying
with the subpoena.
24 May 2017 GOVERNMENT GAZETTE, WA 2591 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
Contempt of 6. Failure to comply with this subpoena without lawful court—arrest excuse may result in your arrest and the imposition of a
fine under the Evidence Act 2006 (New Zealand)
section 165.7.
Note 6 is without prejudice to any other power to enforce compliance with a subpoena.
Footnotes to Form 23 —
* Delete the inapplicable. 1. If there is more than one of any party, include the additional parties’ names and types of party in a schedule to the subpoena. 23A. Subpoena to produce documents to WA Supreme Court
(to be served in NZ) (O. 39A r. 2A)Supreme Court of Western Australia No.: *General Division/Court of Appeal Notice attached to subpoena to
produce documents to the
Supreme Court of Western
Australia (to be served in New
Zealand)Parties1 Plaintiff Defendant Notice to Trans-Tasman Proceedings Act 2010 (Commonwealth) witness This notice is very important. Please read it and the attached document or documents
very carefully.
If you have any trouble understanding these documents
you should get legal advice as soon as possible.
Attached to this notice is a subpoena requiring you to produce documents to the Supreme Court of Western Australia. The subpoena has been issued by that court. The subpoena may be served in New Zealand under New
Zealand law (see Evidence Act 2006 (New Zealand)
section 163).This notice —
• sets out your rights relating to the subpoena; and • sets out your obligations relating to the subpoena; and •
includes information about the way in which you may make an application to have the subpoena set aside.
2592 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7
Your rights 1. You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena. 2. An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: ‘Your obligations’). 3. If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court of Western Australia that you be paid the additional amount you incurred. 4. You may apply to the Supreme Court to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible. 5. An application can be made and determined without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand. Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice.
Your 6. Unless the subpoena is set aside, you must comply with obligations it if —
(a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either — (i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or
(ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses;
and (b)
you were given with the subpoena a copy of an order by a judge of the Supreme Court giving leave to serve the subpoena in New Zealand; and
(c)
the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and
24 May 2017 GOVERNMENT GAZETTE, WA 2593 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
(d) service of the subpoena complied with any other conditions specified in the order; and (e) you are over the age of 18 years. 7. The subpoena must specify the date on which you must attend the Supreme Court and produce the documents or things. But instead of attending you may comply with
the subpoena by delivering or posting the subpoena (or
a copy of it) and the documents or things to either —
(a)
the Supreme Court so that they are received not less than 2 clear days before that date; or
(b)
the High Court of New Zealand so that they are received at least 10 days before that date.
If you deliver or post them to the High Court of New Zealand you will be required to pay the cost of sending them to the Supreme Court. You will be able to pay that cost out of the money given to you to meet your reasonable expenses of complying with the subpoena.
Failure to 8. If you do not comply with this subpoena you may be comply with arrested and taken before the High Court of New subpoena Zealand. Unless the High Court is satisfied that failure
to comply should be excused, a fine not exceeding
NZ$10 000 may be imposed.Grounds for 9. The Supreme Court must set aside the subpoena if the setting aside a subpoena requires you to attend at a place in Australia subpoena and —
(a)
you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or
(b)
if you complied with the subpoena — you would be liable to be detained for the purpose of serving a sentence; or
(c)
you are being prosecuted or you are liable to prosecution for an offence in Australia; or
(d)
you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Competition and Consumer Act 2010
(Commonwealth)); or
(e)
you are subject to a restriction on your movements imposed by law or an order of a court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence).
2594 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7 10. The grounds on which the Supreme Court may set aside the subpoena include —
(a) compliance with the subpoena would cause you hardship or serious inconvenience; (b) that, in respect of a document or thing that the subpoena requires you to produce — (i) the document or thing should not be taken out of New Zealand; and
(ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means.
Note: The above list does not include all the matters the
Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application.
Procedure for 11. Application must be made to the Supreme Court of applying to set Western Australia. aside a 12. You may fax your application to that Court on fax subpoena number [fax number of the Court]. 13.
Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address.
14.
A registrar of the Supreme Court will arrange for service of your application and of any affidavit you lodge with the Court with your application.
15.
The Supreme Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing.
16.
If there is a hearing, the Supreme Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand.
17. lodging your application, you request that the hearing be
If, in your application or within a reasonable time after must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used.
24 May 2017 GOVERNMENT GAZETTE, WA 2595 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
Supreme Court of Western Australia No.: *General Division/Court of Appeal Subpoena to produce
documents to the Supreme
Court of Western Australia (to
be served in New Zealand)Parties1 Plaintiff Defendant To [Name and address] Order You are ordered to attend the Supreme Court of
Western Australia and produce this subpoena or a copy
of it and the documents or things specified in the
Schedule of documents. See details below.
Failure to comply with this subpoena without lawful
excuse is a contempt of court and may result in your
arrest and the imposition of a fine under the Evidence
Act 2006 (New Zealand) section 165.
Please read Notes 1 to 16 at the end of this subpoena.Last date for The last date for service of this subpoena is [date]. service [see Note 2] Issuing details Issued at the request of: [Name of party] Address for service: [see Order 71A rule 3] Email:
Date of issue: [Seal or stamp of the Court] Details of You must comply with this subpoena — subpoena
(a) by attending the Supreme Court and producing this [See Notes 5–13]
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 posting this subpoena or a copy of it documents below to —
(i)
the Supreme Court at the address specified below so that they are received not less than 2 clear days before the date specified in the subpoena for
attendance and production; or
(ii) the Registrar of the High Court of New Zealand at the address specified below, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 10 clear days before the date specified in the subpoena for attendance and production.
2596 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7 Date, time and place at which you must attend to produce things may be delivered:
the subpoena or a copy of it and documents or things —
Date:
Time:
Place:
* Supreme Court of Western Australia
David Malcolm Justice Centre
Level 11, 28 Barrack Street
Perth WA 6000* Supreme Court of Western Australia
Court of Appeal
Stirling Gardens, Barrack Street
Perth WA 6000Address(es) of the High Court of New Zealand to which the subpoena (or copy) and documents or things may be delivered or posted:
[Address(es)]
Schedule of documents
The documents and things you must produce are as follows:
[List the documents or things and whether the original of any document isrequired. If insufficient space, attach list.]
Notes
Leave to serve 1. You need not comply with this subpoena unless it is subpoena accompanied by —
(a) a copy of the order of a judge of the Supreme Court giving leave to serve the subpoena in New Zealand; and (b) a notice in the prescribed form that — (i) sets out your rights and obligations in relation to the subpoena; and
(ii) includes information about the way in which an application to have the subpoena set aside may be made.
Last day for 2. You need not comply with this subpoena unless it is service served on you on or before the date specified in it as the
last date for service of the subpoena.Informal 3. Even if this subpoena has not been served personally on service you, you must, nevertheless, comply with it if you have,
by the last date for service of the subpoena, actual
knowledge of it and of its requirements.
24 May 2017 GOVERNMENT GAZETTE, WA 2597 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
Addressee a 4. If the subpoena is addressed to a corporation, the corporation corporation must comply with the subpoena by its
appropriate or proper officer.Production of 5. Instead of attending the Supreme Court and producing subpoena or this subpoena or a copy of it and the document or thing, copy of it and you may comply with this subpoena by delivering or documents or posting the subpoena or a copy of it and the document things by or thing to — delivery or
(a) the Supreme Court at the address specified in the
post subpoena, so that they are received not less than
2 clear days before the date specified in the
subpoena for attendance and production; or
(b) the Registrar of the High Court of New Zealand at the address specified in the subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 10 clear days before the date specified in the subpoena for attendance and production. 6. If you object to a document or thing produced in response to this subpoena being inspected by a party to the proceeding or any other person, you must, at the time of production, include a written notice to the Supreme Court of your objection and of the grounds of your objection.
7. Unless the Supreme 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, a registrar of the Supreme Court may
permit the parties to the proceeding to inspect the
document or thing.
Production of 8. If you produce more than one document or thing, you a number of must include with them a list of them. documents or things Production of 9. Unless the Schedule of documents says the original of a copy instead of document listed in the Schedule is required, you may original produce a copy of it instead. 10. The copy of a document may be —
(a) a photocopy; or (b) in an electronic form on a CD-ROM, DVD or USB formats —
.doc and .docx – Microsoft Word documents
2598 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7 .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
Return or 11. You may, at the time of production, include a written destruction of notice to the Supreme Court that any document or copy documents or of a document produced need not be returned and may copies be destroyed. 12.
If you have so informed the Court, a registrar of the Supreme Court may destroy the document or copy instead of returning it to you.
Applications in 13. You have the right to apply to the Supreme Court for an relation to order with respect to any claim for privilege, public subpoena interest immunity or confidentiality in relation to any
document or thing the subject of this subpoena.Loss or 14. If you are not a party to the proceeding, you may apply expense of to the Supreme Court for an order that the issuing party compliance
pay an amount (in addition to conduct money and any witness’s expenses) in respect of the loss or expense,
including legal costs, reasonably incurred in complying
with the subpoena.Contempt of 15. Failure to comply with this subpoena without lawful court—arrest excuse may result in your arrest and the imposition of a
fine under the Evidence Act 2006 (New Zealand)
section 165.16.
Note 15 is without prejudice to any other power to enforce compliance with a subpoena.
Footnotes to Form 23A —
* Delete the inapplicable. 1. If there is more than one of any party, include the additional parties’ names and types of party in a schedule to the subpoena.
24 May 2017 GOVERNMENT GAZETTE, WA 2599 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
23B. Subpoena to give evidence and produce documents to
WA Supreme Court (to be served in NZ) (O. 39A r. 2A)Supreme Court of Western Australia No.: *General Division/Court of Appeal Notice attached to subpoena to
give evidence and produce
documents to the Supreme
Court of Western Australia (to
be served in New Zealand)Parties1 Plaintiff Defendant Notice to Trans-Tasman Proceedings Act 2010 (Commonwealth) witness This notice is very important. Please read it and the attached document or documents
very carefully.
If you have any trouble understanding these documents
you should get legal advice as soon as possible.
Attached to this notice is a subpoena requiring you to attend
the Supreme Court of Western Australia to give evidence
and produce documents. The subpoena has been issued by
that court.
The subpoena may be served in New Zealand under New
Zealand law (see Evidence Act 2006 (New Zealand)
section 163).This notice —
• sets out your rights relating to the subpoena; and • sets out your obligations relating to the subpoena; and •
includes information about the way in which you may make an application to have the subpoena set aside.
Your rights
1.
You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena.
2.
An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: ‘Your obligations’).
3.
If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court that you be paid the additional amount you incurred.
4.
You may apply to the Supreme Court to have the subpoena wholly or partly set aside. If you wish to
2600 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7 apply to have the subpoena set aside you should get
legal advice as soon as possible.5. An application can be made and determined by the Supreme Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand.
Note: Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice.
Your 6. Unless the subpoena is set aside, you must comply with obligations the attached subpoena if —
(a) when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either — (i) enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or
(ii) a combination of money and vouchers (for example, travel tickets) to meet those expenses;
and (b) you were given with the subpoena a copy of an order by a judge of the Supreme Court giving leave to serve the subpoena in New Zealand; and (c) the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and (d) service of the subpoena complied with any other conditions specified in the order; and (e) you are over the age of 18 years. 7. In so far as the subpoena requires you to produce documents or things to the Supreme Court, it must specify the date on which you must attend the Court and produce the documents or things. But instead of attending you may comply with that requirement by delivering or posting the subpoena (or a copy of it) and the documents or things to either —
(a)
the Supreme Court so that they are received not less than 2 clear days before that date; or
(b)
the High Court of New Zealand so that they are received at least 10 days before that date.
If you deliver or post them to the High Court of New
Zealand you will be required to pay the cost of sending
24 May 2017 GOVERNMENT GAZETTE, WA 2601 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
them to the Supreme Court. You will be able to pay that
cost out of the money given to you to meet yourreasonable expenses of complying with the subpoena.
Failure to 8. If you do not comply with this subpoena you may be comply with arrested and taken before the High Court of New subpoena Zealand. Unless the High Court is satisfied that failure
to comply should be excused, a fine not exceeding
NZ$10 000 may be imposed.Grounds for 9. The Supreme Court must set aside the subpoena if the setting aside a subpoena requires you to attend at a place in Australia subpoena and —
(a)
you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or
(b)
if you complied with the subpoena — you would be liable to be detained for the purpose of serving a sentence; or
(c)
you are being prosecuted or you are liable to prosecution for an offence in Australia; or
(d)
you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Competition and Consumer Act 2010
(Commonwealth)); or
(e) you are subject to a restriction on your movements imposed by law or an order of a court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence). 10. The grounds on which the Supreme Court may set aside the subpoena include —
(a) the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense; (b) compliance with the subpoena would cause you hardship or serious inconvenience; (c) insofar as the subpoena requires you to produce a document or thing, that — (i) the document or thing should not be taken out of New Zealand; and
(ii) satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means.
2602 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7 Note: The above list does not include all the matters the
Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application.
Procedure for 11. Application must be made to the Supreme Court of applying to set Western Australia. aside a 12. You may fax your application to that court on fax subpoena number [fax number of the court]. 13.
Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address.
14.
A registrar of the Supreme Court will arrange for service of your application and of any affidavit you lodge with the court with your application.
15.
The Supreme Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing.
16.
If there is a hearing, the Supreme Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand.
17. lodging your application, you request that the hearing be
If, in your application or within a reasonable time after must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used.
Supreme Court of Western Australia No.: *General Division/Court of Appeal Subpoena to give evidence and
produce documents to the
Supreme Court of Western
Australia (to be served in New
Zealand)Parties1 Plaintiff Defendant To [Name and address] Order You are ordered to attend the Supreme Court of
Western Australia to give evidence and to produce this
subpoena or a copy of it and the documents or things
24 May 2017 GOVERNMENT GAZETTE, WA 2603 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
specified in the Schedule of documents. See details below.
Failure to comply with this subpoena without lawful
excuse is a contempt of court and may result in your
arrest and the imposition of a fine under the Evidence
Act 2006 (New Zealand) section 165.Please read Notes 1 to 16 at the end of this subpoena.
Last date for The last date for service of this subpoena is [date]. service [see Note 2] Issuing details Issued at the request of: [Name of party] Address for service: [see Order 71A rule 3] Email:
Date of issue: [Seal or stamp of the Court] Details of Insofar as this subpoena requires you to attend the Supreme subpoena to Court of Western Australia to give evidence, you must give evidence 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.Details of Insofar as this subpoena requires you to attend the Supreme subpoena to Court of Western Australia to produce the subpoena or a produce copy of it and documents or things, you must comply with documents that requirement — [See Notes 5–13]
(a) by attending at the Supreme Court 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 below for attendance and production; or (b) by delivering or posting this subpoena or a copy of it documents below to —
(i) the Supreme Court at the address specified below so that they are received not less than 2 clear days before the date specified below for attendance and production; or
(ii) the Registrar of the High Court of New Zealand at the address specified below, or if more than one address is so specified, at any one of those
2604 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7 addresses, so that they are received not less than 10 clear days before the date specified below for attendance and production.
Date, time and place at which you must attend and produce
the subpoena or a copy of it and documents or things —
Date:
Time:
Place:Address of the Supreme Court to which the subpoena (or copy) and documents or things may be delivered or posted:
* Supreme Court of Western Australia
David Malcolm Justice Centre
Level 11, 28 Barrack Street
Perth WA 6000* Supreme Court of Western Australia
Court of Appeal
Stirling Gardens, Barrack Street
Perth WA 6000Address(es) of the High Court of New Zealand to which the subpoena (or copy) and documents or things may be delivered or posted:
[Address(es)]
Schedule of documents
The documents and things you must produce are as follows —
[List the documents or things and whether the original of any document isrequired. If insufficient space, attach list.]
Notes
Leave to serve 1. You need not comply with this subpoena unless it is subpoena accompanied by —
(a) a copy of the order of a judge of the Supreme Court giving leave to serve the subpoena in New Zealand; and (b) a notice in the prescribed form that — (i) sets out your rights and obligations in relation to the subpoena; and
(ii) includes information about the way in which an application to have the subpoena set aside may be made.
Last day for 2. You need not comply with this subpoena unless it is service served on you on or before the date specified in it as the
last date for service of this subpoena.
24 May 2017 GOVERNMENT GAZETTE, WA 2605 Supreme Court Amendment (Subpoenas) Rules 2017
Amendments about subpoenas Part 2 r. 7
Informal 3. Even if this subpoena has not been served personally on service you, you must, nevertheless, comply with it if you have,
by the last date for service of the subpoena, actual
knowledge of it and of its requirements.Addressee a 4. If this subpoena is addressed to a corporation, the corporation corporation must comply with the subpoena by its
appropriate or proper officer.Production of 5. Insofar as this subpoena requires you to attend and subpoena or produce this subpoena or a copy of it and a document or copy of it and thing, you may, instead of attending to produce the documents or subpoena or a copy of it and the document or thing, things by comply with that requirement by delivering or posting delivery or the subpoena or a copy of it and the document or thing post to —
(a) the Supreme Court at the address specified in the 2 clear days before the date specified in the subpoena for attendance and production; or
(b) the Registrar of the High Court of New Zealand at the address specified in the subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 10 clear days before the date specified in the subpoena for attendance and production. 6. If you object to a document or thing produced in response to this subpoena being inspected by a party to the proceeding or any other person, you must, at the time of production, include a written notice to the Supreme Court of your objection and of the grounds of your objection.
7. Unless the Supreme 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, a registrar of the Supreme Court may
permit the parties to the proceeding to inspect the
document or thing.
Production of 8. If you produce more than one document or thing, you a number of must include with them a list of them. documents or things Production of 9. Unless the Schedule of documents says the original of a copy instead of document listed in the Schedule is required, you may original produce a copy of it instead.
2606 GOVERNMENT GAZETTE, WA 24 May 2017 Supreme Court Amendment (Subpoenas) Rules 2017
Part 2 Amendments about subpoenas r. 7 10. The copy of a document may be:
(a) a photocopy; or (b) in an electronic form on a CD-ROM, DVD or USB 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
Return or 11. You may, at the time of production, include a written destruction of notice to the Supreme Court that any document or copy documents or of a document produced need not be returned and may copies be destroyed. 12.
If you have so notified the Court, a registrar of the Supreme Court may destroy the document or copy instead of returning it to you.
Applications in 13. You have the right to apply to the Supreme Court for an relation to order with respect to any claim for privilege, public subpoena interest immunity or confidentiality in relation to any
document or thing the subject of this subpoena.Loss or 14. If you are not a party to the proceeding, you may apply expense of to the Supreme Court for an order that the issuing party compliance
pay an amount (in addition to conduct money and any witness’s expenses) in respect of the loss or expense,
including legal costs, reasonably incurred in complying
with this subpoena.Contempt of 15. Failure to comply with this subpoena without lawful court—arrest excuse may result in your arrest and the imposition of a
fine under the Evidence Act 2006 (New Zealand)
section 165.16.
Note 15 is without prejudice to any other power to enforce compliance with a subpoena.
Footnotes to Form 23B —
* Delete the inapplicable. 1. If there is more than one of any party, include the additional parties’ names and types of party in a schedule to the subpoena.
24 May 2017 GOVERNMENT GAZETTE, WA 2607 Supreme Court Amendment (Subpoenas) Rules 2017
Miscellaneous amendments Part 3 r. 8
Part 3 — Miscellaneous amendments
8. Order 17 amended
In Order 17 rule 2(3) delete “Subject to subrule (4) a summons”
and insert:
A summons
9. Order 20 amended
In Order 20 rule 19(3) delete “Subject to subrule (4) an
application” and insert:
An application
10. Order 69 amended
In Order 69 rule 2(1)(h) before “have” insert:
unless the document is in a prescribed form,
The Hon. Chief Justice WAYNE MARTIN AC,
Chief Justice of Western Australia,Supreme Court of Western Australia.
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