Untitled document

Supreme Court (Subpoena, Search Order and Freezing Order Amendment) Rules 2010

S.R. No. 23/2010

TABLE OF PROVISIONS

Rule  Page

PART 1—PRELIMINARY

1Objects

2Authorising provisions

3Commencement

4Principal Rules

PART 2—AMENDMENTS RELATING TO SUBPOENAS

5Form of subpoena

6Compliance with subpoena

7Disposal of documents and things produced

8Form 42A

9New Form 42B

Form 42B—Notice to addressee and declaration

10Subpoenas in criminal proceedings

11Form 6–1A in Chapter VI amended

12New Form 6–1B in Chapter VI

Form 6–1B—Notice to Addressee and Declaration

PART 3—AMENDMENTS RELATING TO FREEZING ORDERS AND SEARCH ORDERS

13Form 37AA—freezing order

14Form 37BA—search order

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ENDNOTES

STATUTORY RULES 2010

S.R. No. 23/2010

Supreme Court Act 1986

Supreme Court (Subpoena, Search Order and Freezing Order Amendment) Rules 2010

The Judges of the Supreme Court make the following Rules:

PART 1—PRELIMINARY

1Objects

The objects of these Rules are—

(a)to amend Chapter I and Chapter VI of the Rules of the Supreme Court to further provide for the manner of delivering documents for the purposes of subpoena rules harmonised with like rules in other Australian jurisdictions; and

(b)to amend Chapter I of the Rules of the Supreme Court to provide that the forms of freezing orders and search orders harmonised with like rules in other Australian jurisdictions are consistent with the Evidence Act 2008.

2Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.

3Commencement

These Rules come into operation on 3 May 2010.

4Principal Rules

In these Rules, the Supreme Court (General Civil Procedure) Rules 2005[1] are called the Principal Rules.

__________________

PART 2—AMENDMENTS RELATING TO SUBPOENAS

5Form of subpoena

At the foot of Rule 42.03(9) of the Principal Rules insert—

"Note

See also Rule 42.10(3) regarding notice and declaration in Form 42B to accompany a subpoena to produce dealing with copies and disposal of documents.".

6Compliance with subpoena

After Rule 42.06(5) of the Principal Rules insert—

"(6)Unless a subpoena specifically requires the production of the original, the addressee may produce a copy of any document required to be produced by the subpoena.

(7)The copy of a document may be—

(a)a photocopy; or

(b)in PDF format on a CD-Rom.".

7Disposal of documents and things produced

After Rule 42.10(2) of the Principal Rules insert—

"(3)The issuing party must attach to the front of a subpoena to produce to be served on the addressee a notice and declaration in accordance with Form 42B.

(4)The addressee must—

(a)complete the notice and declaration referred to in paragraph (3); and

(b)attach it to the subpoena or copy of the subpoena which accompanies the documents produced to the Court under the subpoena.

(5)Subject to paragraph (6), the Prothonotary may, upon the expiry of four months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceeding in compliance with a subpoena which were declared by the addressee to be copies.

(6)The Prothonotary may cause to be destroyed those documents declared by the addressee to be copies which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.".

8Form 42A

In the Notes to Form 42A of the Principal Rules, for Note 9 substitute—

"9.    If the subpoena requires you to produce a document, you may produce a copy of the document unless the subpoena specifically requires you to produce the original.

9A.   The copy of a document may be—

(a)    a photocopy; or

(b)    in PDF format on a CD-Rom.".

9New Form 42B

After Form 42A of the Principal Rules insert—

"FORM 42B

Rule 42.10(3)

NOTICE TO ADDRESSEE AND DECLARATION

[heading as in originating process]

To: [name of person to whom the subpoena is addressed and who will be the recipient of the subpoena]

of [address]:

You may produce copies of any subpoenaed documents, unless the subpoena specifically requires you to produce originals.  A copy of a document may be—

(a)a photocopy; or

(b)in PDF format on a CD-Rom.

You must complete the declaration below, attach it to the subpoena or a copy of the subpoena and return them with the documents or things you provide to the Court under the subpoena.

If you declare that the material you produce is copies of documents, the Prothonotary may, without further notice to you, destroy the copies after the expiry of a period of four months from the conclusion of the proceeding or, if the documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.

If the material you produce to the Court is or includes any original document, the Court will return all of the material to you at the address specified by you in the Declaration below.

DECLARATION BY ADDRESSEE (SUBPOENA RECIPIENT)

[tick the relevant option below, provide your address as appropriate, sign and date]

£All of the material I am providing to the Court in compliance with the attached subpoena is copies of documents.  I acknowledge that the Court will destroy the copies once they are no longer required, without further notice to me.

£Some or all of the material I am providing to the Court in compliance with the attached subpoena is an original document.  Once the material is no longer required, all of the material should be returned to me at the following address—

[insert address for return of material].

Date:

[signature of addressee]

[name of addressee]

__________________".

10Subpoenas in criminal proceedings

(1)In Rule 1.12(1) of the Supreme Court (Criminal Procedure) Rules 2008[2], for "paragraphs (2) and (3)" substitute "this Rule".

(2)After Rule 1.12(3) of the Supreme Court (Criminal Procedure) Rules 2008 insert—

"(4)In a proceeding to which these Rules relate, the issuing party must attach to the front of a subpoena to produce to be served on the addressee a notice and declaration in accordance with Form 6–1B.

(5)The addressee must—

(a)complete the notice and declaration referred to in paragraph (4); and

(b)attach it to the subpoena or copy of the subpoena which accompanies the documents produced to the Court under the subpoena.

(6)Subject to paragraph (7), the Prothonotary may, upon the expiry of four months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceeding in compliance with a subpoena which were declared by the addressee to be copies.

(7)The Prothonotary may cause to be destroyed those documents declared by the addressee to be copies which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.".

11Form 6–1A in Chapter VI amended

In the Notes to Form 6–1A of the Supreme Court (Criminal Procedure) Rules 2008, for Note 9 substitute—

"9.    If the subpoena requires you to produce a document, you may produce a copy of the document unless the subpoena specifically requires you to produce the original.

9A.   The copy of a document may be—

(a)    a photocopy; or

(b)    in PDF format on a CD-Rom.".

12New Form 6–1B in Chapter VI

After Form 6–1A of the Supreme Court (Criminal Procedure) Rules 2008 insert—

"FORM 6–1B

Rule 1.12(4)

NOTICE TO ADDRESSEE AND DECLARATION

[heading as in originating process]

To: [name of person to whom the subpoena is addressed and who will be the recipient of the subpoena]

of: [address]

You may produce copies of any subpoenaed documents, unless the subpoena specifically requires you to produce originals.  A copy of a document may be—

(a)a photocopy; or

(b)in PDF format on a CD-Rom.

You must complete the declaration below, attach it to the subpoena or a copy of the subpoena and return them with the documents or things you provide to the Court under the subpoena.

If you declare that the material you produce is copies of documents, the Prothonotary may, without further notice to you, destroy the copies after the expiry of a period of four months from the conclusion of the proceeding or, if the documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.

If the material you produce to the Court is or includes any original document, the Court will return all of the material to you at the address specified by you in the Declaration below.

DECLARATION BY ADDRESSEE (SUBPOENA RECIPIENT)

[tick the relevant option below, provide your address as appropriate, sign and date]

£All of the material I am providing to the Court in compliance with the attached subpoena is copies of documents.  I acknowledge that the Court will destroy the copies once they are no longer required, without further notice to me.

£Some or all of the material I am providing to the Court in compliance with the attached subpoena is an original document.  Once the material is no longer required, all of the material should be returned to me at the following address—

[insert address for return of material].

Date:

[signature of addressee]

[name of addressee]".

__________________

PART 3—AMENDMENTS RELATING TO FREEZING ORDERS AND SEARCH ORDERS

13Form 37AA—freezing order

In Form 37AA of the Principal Rules, for paragraph 9 substitute—

"9.(a)    This paragraph 9 applies if you are not a corporation and you wish to object to complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(b)This paragraph 9 also applies if you are a corporation and all persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(c)You must—

(i)disclose so much of the information required to be disclosed to which no objection is taken; and

(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.".

14Form 37BA—search order

(1)In Form 37BA of the Principal Rules, for paragraph 21 substitute—

"21.(a)       This paragraph 21 applies if you are not a corporation and you wish to object to complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(b)This paragraph 21 also applies if you are a corporation and all persons who are able to comply with paragraph 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(c)You must—

(i)disclose so much of the information required to be disclosed to which no objection is taken; and

(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

(iii)   file and serve on each other party a separate affidavit setting out the basis of the objection.".

(2)In Form 37BA of the Principal Rules, for paragraph 24 substitute—

"24.(a)    This paragraph 24 applies if you are not a corporation and you wish to object to complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(b)This paragraph 24 also applies if you are a corporation and all persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—

(i)have committed an offence against or arising under an Australian law or a law of a foreign country; or

(ii)are liable to a civil penalty.

(c)You must—

(i)disclose so much of the information required to be disclosed to which no objection is taken; and

(ii)prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

(iii)file and serve on each other party a separate affidavit setting out the basis of the objection.".

Dated:    29 April 2010

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

PETER BUCHANAN, J.A.

GEOFFREY NETTLE, J.A.

DAVID ASHLEY, J.A.

ROBERT REDLICH, J.A.

MARK WEINBERG, J.A.

PHILIP MANDIE, J.A.

BERNARD D. BONGIORNO, J.A.

DAVID BYRNE, J.

H. R. HANSEN, J.

R. S. OSBORN, J.

STEPHEN KAYE, J.

SIMON P. WHELAN, J.

KEVIN H. BELL, J.

BETTY JUNE KING, J.

ANTHONY CAVANOUGH, J.

ELIZABETH CURTAIN, J.

TONY PAGONE, J.

PAUL COGHLAN, J.

ROSS ROBSON, J.

JACK FORREST, J.

LEX LASRY, J.

JAMES JUDD, J.

PETER VICKERY, J.

JENNIFER DAVIES, J.

TERRY FORREST, J.

KARIN EMERTON, J.

IAIN ROSS, J.

CLYDE CROFT, J.

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ENDNOTES

[1] Rule 4: S.R. No. 148/2005.  Reprint No. 2 as at 1 November 2009.  Reprinted to S.R. No. 109/2009 and subsequently amended by S.R. Nos 60/2009, 97/2009, 132/2009, 144/2009 and 146/2009.

[2] Rule 10(1): S.R. No. 12/2008 as amended by S.R. Nos 100/2008, 118/2008, 150/2008, 98/2009, 99/2009, 132/2009 and 146/2009.