Supreme Court (Harmonised Subpoenas …FILE/17-098sr.docx · Web view.doc and .docx—Microsoft Word documents .pdf – Adobe Acrobat documents .xls and .xlsx – Microsoft Excel

Supreme Court (Harmonised Subpoenas Amendment) Rules 2017

S.R. No. 98/2017

TABLE OF PROVISIONSRule Page

Part 1—Preliminary 1

1 Object 12 Authorising provisions 13 Commencement 1

Part 2—Amendment of Chapter I 2

4 Form of subpoena 25 Compliance with subpoena 26 Production otherwise than upon attendance 37 Disposal of documents and things produced 38 Form 42B (Notice to addressee and declaration) revoked 49 Form 42A substituted and new Forms 42B and 42C inserted 4

Part 3—Amendment of Chapter VI 18

10 Subpoenas 1811 Form 6–1B (Notice to addressee and declaration) revoked 1912 Form 6–1A substituted and new Forms 6–1B and 6-1C inserted 19

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Endnotes 34

1

STATUTORY RULES 2017

S.R. No. 98/2017

Supreme Court Act 1986

Supreme Court (Harmonised Subpoenas Amendment) Rules 2017

The Judges of the Supreme Court make the following Rules:

Part 1—Preliminary1 Object

The object of these Rules is—

(a) to amend Chapter I of the Rules of the Supreme Court to further provide for subpoenas harmonised with other Australian jurisdictions; and

(b) to consequentially amend the forms of subpoenas in Chapter VI which are based on the Chapter I forms.

2 Authorising provisions

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

3 Commencement

These Rules come into operation on 1 November 2017.

1

Part 2—Amendment of Chapter I4 Form of subpoena

(1) For Rule 42.03(1) of the Supreme Court (General Civil Procedure) Rules 20151 substitute—

"(1) A subpoena shall be in accordance with—

(a) Form 42A, for a subpoena to attend to give evidence;

(b) Form 42B, for a subpoena to produce; or

(c) Form 42C, for a subpoena both to attend to give evidence and to produce.".

(2) The note at the foot of Rule 42.03(9) of the Supreme Court (General Civil Procedure) Rules 2015 is revoked.

5 Compliance with subpoena

(1) For Rule 42.06(1) of the Supreme Court (General Civil Procedure) Rules 2015 substitute—

"(1) An addressee need not comply with the requirements of a subpoena to attend to give evidence (a subpoena in Form 42A) or a subpoena both to attend to give evidence and to produce (a subpoena in Form 42C) unless conduct money has been provided or tendered to the addressee a reasonable time before the day on which attendance is required.".

(2) For Rule 42.06(7)(b) of the Supreme Court (General Civil Procedure) Rules 2015 substitute—

Supreme Court (Harmonised Subpoenas Amendment) Rules 2017S.R. No. 98/2017

2

"(b) in an electronic form in any of the following electronic formats—

(i) .doc and .docx—Microsoft Word documents;

(ii) .pdf—Adobe Acrobat documents;

(iii) .xls and .xlsx—Microsoft Excel spreadsheets;

(iv) .jpg—image files;

(v) .rtf—rich text format;

(vi) .gif—graphics interchange format;

(vii) .tif—tagged image format; or

(viii) any other format agreed with the issuing party.".

6 Production otherwise than upon attendance

Rule 42.07(4) of the Supreme Court (General Civil Procedure) Rules 2015 is revoked.

7 Disposal of documents and things produced

For Rule 42.10(3) and (4) of the Supreme Court (General Civil Procedure) Rules 2015 substitute—

"(3) The addressee of a subpoena which is in accordance with Form 42B or Form 42C must complete the declaration by the addressee provided for in the subpoena.

(4) The completed declaration must be included in the subpoena or copy of the subpoena which accompanies the documents produced under the subpoena.".


3

8 Form 42B (Notice to addressee and declaration) revoked

Form 42B of the Supreme Court (General Civil Procedure) Rules 2015 is revoked.

9 Form 42A substituted and new Forms 42B and 42C inserted

For Form 42A of the Supreme Court (General Civil Procedure) Rules 2015 substitute—

"Form 42A—Subpoena to attend to give evidence

Rule 42.03(1)(a)

[heading as in originating process]

SUBPOENA TO ATTEND TO GIVE EVIDENCE

To [name]

of [address]:

YOU ARE ORDERED to attend to give evidence: see below for details.

Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest.

You should read all of the Notes set out at the end of this subpoena.

The last day for service of this subpoena is: [date]. (See Note 1)

Date:

[Seal of the Court]

Issued at the request of [name of party], whose address for service is:

Place:

Email:


4

Details of subpoena

You are required by this subpoena to attend to give evidence and you must attend as follows unless you receive notice of a later date or time from the issuing party, in which case, the later date or time is substituted:

Date:

Time:

Place:

You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed.

NOTES

Last day for service

1. Subject to Note 2, you need not comply with the subpoena unless it is served on you on or before the date specified in the subpoena as the last date for service of the subpoena.

Informal service

2. Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.

Addressee a corporation

3. If the subpoena is addressed to a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.

Conduct money

4. You need not comply with the requirements of the subpoena unless a sum of money or its equivalent (such as pre-paid travel) sufficient to meet your reasonable expenses of attending as required by the subpoena and returning after so attending is provided or tendered to you a reasonable time before the day on which your attendance is required.

Applications in relation to subpoena

5. You have the right to apply to the Court—

(a) for an order setting aside the subpoena (or a part of it) or for relief in respect of the subpoena; and


5

(b) for an order with respect to any claim you may have for privilege, public interest immunity or confidentiality in relation to any evidence you may be required to give under the subpoena.

Loss or expense of compliance

6. If you are not a party to the proceeding, you may apply to the Court for an order that the issuing party pay an amount (in addition to conduct money and any witness's expenses) in respect of any loss or expense, including any legal costs, reasonably incurred in complying with the subpoena.

Contempt of court—arrest

7. Failure to comply with a subpoena without lawful excuse is a contempt of court and may be dealt with accordingly.

8. Note 7 is without prejudice to any power of the Court under any Rules of the Supreme Court (including any Rules of the Supreme 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.


6

Form 42B—Subpoena to produce Rule 42.03(1)(b)


SUBPOENA TO PRODUCE

To [name]

of [address]:

YOU ARE ORDERED to attend to produce this subpoena or a copy of it and the documents or things specified in the Schedule of documents: see below for details.


You should read all of the Notes set out in this subpoena. Also, you must complete the Declaration by Addressee (Subpoena Recipient) set out at the end of this subpoena.


Date:

[Seal of the Court]


Place:

Email:

Details of subpoena

You must comply with this subpoena:

(a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule of documents below at the date, time and place specified for attendance and production; or

(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule of documents below to the Prothonotary at the address below, or if there is more than one address below, at any one of those addresses, so that they are received not less than two clear business days before the date specified for attendance and production. (See Notes 4 to 10)


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Date, time and place at which to attend to produce the subpoena or a copy of it and the documents or things unless you receive notice of a later date or time from the issuing party, in which case, the later date or time is substituted:

Date:

Time:

Place:

Address, or any address, to which the subpoena (or copy) and documents or things may be delivered or sent:

The Prothonotary

[Supreme Court of Victoria436 Lonsdale StreetMelbourne]

SCHEDULE OF DOCUMENTS

The documents and things you must produce are as follows:

[List the documents or things. Attach list if insufficient space.]

NOTES


1. You need not comply with the subpoena unless it is served on you on or before the date specified in the subpoena as the last date for service of the subpoena.

Informal service




8


Production of subpoena or copy of it and documents or things by delivery or post

4. Instead of attending to produce this subpoena (or a copy of it) and the documents or things required to be produced, you may comply with the subpoena by delivering or sending the subpoena (or a copy of it) and the documents or things to the Prothonotary—

(a) at the address specified in the subpoena for the purpose; or

(b) if more than one address is specified, at any of those addresses—

so that they are received not less than two clear business days before the date specified in the subpoena for attendance and production or if you receive notice of a later date or time from the issuing party, before the later date or time.

5. If you object to a document or thing produced in response to this subpoena being inspected by a party to the proceeding or any other person, you must, at the time of production, notify the Prothonotary in writing of your objection and of the grounds of your objection.

6. Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to the subpoena being inspected by any party to the proceeding, the Prothonotary may permit the parties to the proceeding to inspect the document or thing.

Production of a number of documents or things

7. If you produce more than one document or thing, you must, if requested by the Prothonotary, produce a list of the documents or things produced.

Production of copy instead of original

8. Unless the subpoena specifically requires you to produce an original, you may produce a copy of any document that the subpoena requires you to produce. If you are producing copies, you are encouraged to produce them in electronic form.

9. Electronic copies of documents can be provided on a memory card or stick in any of the formats referred to in paragraph 10(b) below.

10. A copy of a document may be—

(a) a photocopy; or

(b) in an electronic form in any of the following electronic formats—


9

.doc and .docx—Microsoft Word documents

.pdf – Adobe Acrobat documents

.xls and .xlsx – Microsoft Excel spreadsheets

.jpg – image files

.rtf – rich text format

.gif – graphics interchange format

.tif – tagged image format

any other format agreed with the issuing party.




(b) for an order with respect to any claim you may have for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena.


12. If you are not a party to the proceeding, you may apply to the Court for an order that the issuing party pay an amount in respect of any loss or expense, including any legal costs, reasonably incurred in complying with the subpoena.




DECLARATION BY ADDRESSEE (SUBPOENA RECIPIENT)

You must complete the declaration below. The completed declaration must be included in the subpoena or in the copy of the subpoena when you produce the subpoena or the copy with the documents required by the subpoena.

If you declare that the material you produce is copies of documents, the Prothonotary may, without further notice to you, destroy the copies after the expiry of four months from the conclusion of the proceeding or, if the


10

documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.

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

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

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

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

[insert address for return of material].

Date:

[signature of addressee]

[name of addressee]


11

Form 42C—Subpoena both to attend to give evidence and to produce

Rule 42.03(1)(c)


SUBPOENA BOTH TO ATTEND TO GIVE EVIDENCE AND TO PRODUCE

To [name]

of [address]:

YOU ARE ORDERED both to attend to give evidence and to produce this subpoena or a copy of it and the documents or things specified in the Schedule of documents: see below for details.




Date:

[Seal of the Court]


Place:

Email:

Details of subpoena

In so far as you are required by this subpoena to attend to give evidence, you must attend as follows unless you receive notice of a later date or time from the issuing party, in which case, the later date or time is substituted:

Date:

Time:

Place:


12


In so far as you are required by this subpoena to produce the subpoena or a copy of it and documents or things, you must comply with this subpoena:


(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule of documents below to the Prothonotary at the address below, or if there is more than one address below, at any one of those addresses, so that they are received not less than two clear business days before the date specified for attendance and production. (See Notes 5 to 11).


Date:

Time:

Place:


The Prothonotary






13

NOTES



Informal service




Conduct money



5. In so far as this subpoena requires production of the subpoena (or a copy of it) and a document or thing, instead of attending to produce the subpoena (or a copy of it) and the document or thing, you may comply with the subpoena to that extent by delivering or sending the subpoena (or a copy of it) and the document or thing to the Prothonotary—






14








(a) a photocopy; or



.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






15

(b) for an order with respect to any claim you may have for privilege, public interest immunity or confidentiality in relation to any evidence you may be required to give under the subpoena or any document or thing the subject of the subpoena.








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 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.





16



Date:


[name of addressee]".


17

Part 3—Amendment of Chapter VI10 Subpoenas

(1) For Rule 1.12(2) of the Supreme Court (Criminal Procedure) Rules 20082 substitute—

"(2) In a proceeding to which these Rules relate (except an appeal or an application for leave to appeal), a subpoena shall be in accordance with—

(a) Form 6–1A, for a subpoena to attend to give evidence;

(b) Form 6–1B, for a subpoena to produce; or

(c) Form 6–1C, for a subpoena both to attend to give evidence and to produce.

(2.1) An addressee need not comply with the requirements of a subpoena to attend to give evidence (a subpoena in Form 6–1A) or a subpoena both to attend to give evidence and to produce (a subpoena in Form 6–1C) unless conduct money has been provided or tendered to the addressee a reasonable time before the day on which attendance is required.".

(2) For Rule 1.12(4) and (5) of the Supreme Court (Criminal Procedure) Rules 2008 substitute—

"(4) The addressee of a subpoena which is in accordance with Form 6–1B or Form 6–1C must complete the declaration by the addressee provided for in the subpoena.

(5) The completed declaration must be included in the subpoena or copy of the subpoena which accompanies the documents produced under the subpoena.".


18

11 Form 6–1B (Notice to addressee and declaration) revoked

Form 6–1B of the Supreme Court (Criminal Procedure) Rules 2008 is revoked.

12 Form 6–1A substituted and new Forms 6–1B and 6-1C inserted

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

"Form 6–1A—Subpoena to attend to give evidence

Rule 1.12(2)(a)


SUBPOENA TO ATTEND TO GIVE EVIDENCE

To [name]

of [address]:

YOU ARE ORDERED to attend to give evidence: see below for details.


You should read all of the Notes set out at the end of this subpoena.


Date:

[Seal of the Court]


Place:

Email:


19

Details of subpoena

You are required by this subpoena to attend to give evidence and you must attend as follows unless you receive notice of a later date or time from a police officer or the Solicitor for Public Prosecutions, in which case, the later date or time is substituted:

Date:

Time:

Place:


NOTES


1. Subject to Note 2, you need not comply with the subpoena unless it is served on you on or before the date specified in the subpoena as the last date for service of the subpoena.

Informal service




Conduct money






20

(b) for an order with respect to any claim you may have for privilege, public interest immunity or confidentiality in relation to any evidence you may be required to give under the subpoena.







21

Form 6–1B—Subpoena to produce Rule 1.12(2)(b)


SUBPOENA TO PRODUCE

To [name]

of [address]:

YOU ARE ORDERED to attend to produce this subpoena or a copy of it and the documents or things specified in the Schedule of documents: see below for details.




Date:

[Seal of the Court]


Place:

Email:

Details of subpoena

You must comply with this subpoena:


(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule of documents below to the Prothonotary at the address below, or if there is more than one address below, at any one of those addresses, so that they are received not less than two clear business days before the date specified for attendance and production. (See Notes 4 to 10).


22

Date, time and place at which to attend to produce the subpoena or a copy of it and the documents or things unless you receive notice of a later date or time from a police officer or the Solicitor for Public Prosecutions, in which case, the later date or time is substituted:

Date:

Time:

Place:


The Prothonotary





NOTES



Informal service




23



4. Instead of attending to produce this subpoena (or a copy of it) and the documents or things required to be produced, you may comply with the subpoena by delivering or sending the subpoena (or a copy of it) and the documents or things to the Prothonotary—












(a) a photocopy; or



24




.jpg—image files








(b) for an order with respect to any claim you may have for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena.


12. If you are not a party to the proceeding, you may apply to the Court for an order that the issuing party pay an amount in respect of any loss or expense, including any legal costs, reasonably incurred in complying with the subpoena.






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 four months from the conclusion of the proceeding or, if the


25

documents become exhibits in the proceeding, when they are no longer required in connection with the proceeding, including on any appeal.






Date:


[name of addressee]


26

Form 6–1C—Subpoena both to attend to give evidence and to produce

Rule 1.12(2)(c)


SUBPOENA BOTH TO ATTEND TO GIVE EVIDENCE AND TO PRODUCE

To [name]

of [address]:

YOU ARE ORDERED both to attend to give evidence and to produce this subpoena or a copy of it and the documents or things specified in the Schedule of documents: see below for details.




Date:

[Seal of the Court]


Place:

Email:

Details of subpoena

In so far as you are required by this subpoena to attend to give evidence, you must attend as follows unless you receive notice of a later date or time from a police officer or the Solicitor for Public Prosecutions, in which case, the later date or time is substituted:

Date:

Time:

Place:


27


In so far as you are required by this subpoena to produce the subpoena or a copy of it and documents or things, you must comply with this subpoena:


(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule of documents below to the Prothonotary at the address below, or if there is more than one address below, at any one of those addresses, so that they are received not less than two clear business days before the date specified for attendance and production. (See Notes 5 to 11)


Date:

Time:

Place:


The Prothonotary






28

NOTES



Informal service




Conduct money



5. In so far as this subpoena requires production of the subpoena (or a copy of it) and a document or thing, instead of attending to produce the subpoena (or a copy of it) and the document or thing, you may comply with the subpoena to that extent by delivering or sending the subpoena (or a copy of it) and the document or thing to the Prothonotary—






29








(a) a photocopy; or





.jpg—image files









30

(b) for an order with respect to any claim you may have for privilege, public interest immunity or confidentiality in relation to any evidence you may be required to give under the subpoena or any document or thing the subject of the subpoena.







You must complete the declaration below. The completed declaration must be included in the subpoena or in the copy of the subpoena when you produce the subpoena or the copy of it with the documents required by 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 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.





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Date:


[name of addressee]".

Dated: 21 September 2017

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

PAMELA TATE, J.A.

R. S. OSBORN, J.A.

J. G. SANTAMARIA, J.A.

DAVID F. R. BEACH, J.A.

ANNE FERGUSON, J.A.

S. G. E. McLEISH, J.A.

KIM HARGRAVE, J.

ANTHONY CAVANOUGH, J.

JACK FORREST, J.

LEX LASRY, J.

JAMES JUDD, J.

PETER VICKERY, J.

CLYDE CROFT, J.

PETER ALMOND, J.

JOHN R. DIXON, J.

C. MACAULAY, J.

GREG GARDE, J.


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G. J. DIGBY, J.

T. J. GINNANE, J.

MELANIE SLOSS, J.

CHRISTOPHER W. BEALE, J.

RITA ZAMMIT, J.

P. J. RIORDAN, J.

JANE A. DIXON, J.

A. J. KEOGH, J.

MAREE KENNEDY, J.

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33

Endnotes

Endnotes


34

1 Rule 4(1): S.R. No. 103/2015. Reprint No. 1 as at 1 October 2016. Reprinted to S.R. No. 109/2016. Subsequently amended by S.R. Nos 138/2016, 139/2016, 14/2017, 15/2017, 32/2017 and 33/2017.

2 Rule 10(1): S.R. No. 12/2008. Reprint No. 3 as at 12 December 2016. Reprinted to S.R. No. 141/2016. Subsequently amended by S.R. No. 34/2017.

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