County Court (Chapters I and III Miscellaneous Amendments) Rules 2017 · S.R. No. 143/2017 . TABLE...

Authorised by the Chief Parliamentary Counsel

Authorised Version

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County Court (Chapters I and III Miscellaneous Amendments) Rules 2017

S.R. No. 143/2017

TABLE OF PROVISIONS Rule Page

Part 1—Preliminary 1

1 Objects 1 2 Authorising provisions 2 3 Commencement 2

Part 2—Amendment of Chapter I 3

Division 1—Service under the Hague Convention 3

4 Definitions 3 5 Application 3 6 New Order 80 inserted 4 7 Forms 80A and 80B inserted 17

Division 2—Subpoena changes to reflect Rules of the Supreme Court 21

8 Form of subpoena 21 9 Compliance with subpoena 21 10 Production otherwise than upon attendance 22 11 Disposal of documents and things produced 22 12 Form 42B (Notice to addressee and declaration) revoked 23 13 Form 42A substituted and new Forms 42B and 42C inserted 23

Division 3—Subpoenas for production to Registrar 35 14 Compliance with subpoena 35 15 Objection by addressee or other person 36 16 Objection by party to inspection by other party 36 17 Return or disposal of document 36 18 Form 42AA substituted 37

Division 4—Trans-Tasman proceedings 42

19 Definitions 42 20 Application of Order 43 21 Commencement of proceeding for order under Trans-Tasman

Proceedings Act 43 22 Interlocutory application under Trans-Tasman Proceedings Act 43

Rule Page

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23 Application for interim relief 43 24 Application for leave to serve subpoena in New Zealand 44 25 Application to set aside subpoena 44 26 Application for issue of certificate of non-compliance with

subpoena 45 27 Form of certificate of non-compliance 45 28 New Rule 7A.10.1 inserted 45 29 Notice of registration of NZ judgment 46 30 Application for extension of time to give notice of registration

of NZ judgment 46 31 Application to set aside registration of NZ judgment 46 32 Application for stay of enforcement of registered NZ judgment

to enable liable person to appeal 47 33 Application for extension of time to apply for stay of

enforcement of registered NZ judgment to enable liable person to appeal 47

Part 3—Amendment of Chapter III 48

34 Subpoenas 48 35 Form 1E (Notice to Addressee and Declaration) revoked 49 36 Form 1D substituted and new Forms 1E and 1EA inserted 49

═════════════

Endnotes 64


Authorised Version

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STATUTORY RULES 2017

S.R. No. 143/2017

County Court Act 1958

County Court (Chapters I and III Miscellaneous Amendments) Rules 2017

A majority of the Judges of the County Court makes the following Rules:

Part 1—Preliminary 1 Objects

The objects of these Rules are—

(a) to amend Chapter I of the Rules of the County Court—

(i) to provide for service of documents in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters;

(ii) to make changes in provisions relating to subpoenas to reflect changes made to the Rules of the Supreme Court;

(iii) in relation to inspection and copying of documents produced under subpoenas for production to the Registrar; and

(iv) to amend Order 7A of Chapter I of the Rules of the County Court to clarify the process for the registration under the Trans-Tasman Proceedings Act 2010 of the Commonwealth of New Zealand judgments and to alter certain related procedures; and

Part 1—Preliminary

County Court (Chapters I and III Miscellaneous Amendments) Rules 2017 S.R. No. 143/2017


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(b) to amend Chapter III of the Rules of the County Court to further provide for subpoenas harmonised with other Australian jurisdictions.

2 Authorising provisions These Rules are made under section 78 of the County Court Act 1958 and all other enabling powers.

3 Commencement These Rules come into operation on 1 January 2018.

Part 2—Amendment of Chapter I



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Division 1—Service under the Hague Convention 4 Definitions

In Rule 1.13(1) of the County Court Civil Procedure Rules 20081—

(a) in the definition of Convention, for "means" substitute ", other than in Order 80, means";

(b) in the definition of Convention country, for "means" substitute ", other than in Order 80, means".

5 Application (1) For Rule 7.09.1(a) and (b) of the County Court

Civil Procedure Rules 2008 substitute—

"(a) in a country that is not a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; or

(b) in such other country as the Attorney-General, by instrument filed in the proceeding, specifies.".

(2) At the foot of Rule 7.09.1 of the County Court Civil Procedure Rules 2008 insert— "Note

Order 80 provides for service in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.".




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6 New Order 80 inserted In the County Court Civil Procedure Rules 2008, for—

"ORDER 80

* * * * * Note

There is no Order 80.

__________________"

substitute—

'ORDER 80

SERVICE UNDER THE HAGUE CONVENTION

PART 1—PRELIMINARY Note 1

This Order forms part of a scheme to implement Australia's obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney-General's Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as "other" or "additional" authorities (under Article 18 of the Convention).

Note 2

This Order provides (in Part 2) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in Part 3) for default judgment in proceedings in the Court after service overseas of such a document.

Note 3

The Attorney-General's Department of the Commonwealth maintains a copy of the Convention, a list of all Convention countries, details of declarations and objections made under the Convention by each of those countries and the names and addresses of the Central and other authorities of each of




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those countries. A copy of the Convention can be found at http://www.hcch.net.

80.01 Definitions In this Order—

additional authority, for a Convention country, means an authority that is—

(a) for the time being designated by that country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for that country; and

(b) competent to receive requests for service abroad emanating from Australia;

applicant, for a request for service abroad or a request for service in this jurisdiction, means the person on whose behalf service is requested; Note

The term applicant may have a different meaning in other provisions of these Rules.

Central Authority, for a Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Convention, to be the Central Authority for that country;

certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Convention;

certifying authority, for a Convention country, means the Central Authority for that country or some other authority that is for the time being designated by

http://www.hcch.net/




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that country, under Article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention;

civil proceedings means any judicial proceedings in relation to civil or commercial matters;

Convention country means a country, other than Australia, that is a party to the Hague Convention;

defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served;

Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965;

initiating process means any document by which proceedings (including proceedings on any cross-claim or third party notice) are commenced;

local judicial document means a judicial document that relates to civil proceedings in the Court;

request for service abroad means a request for service in a Convention country of a local judicial document mentioned in Rule 80.04(1);

this jurisdiction means Victoria.




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80.02 Provisions of this Order to prevail The provisions of this Order prevail to the extent of any inconsistency between those provisions and any other provisions of these Rules.

PART 2—SERVICE ABROAD OF LOCAL JUDICIAL DOCUMENTS

80.03 Application of Part (1) Subject to paragraph (2), this Part applies to

service in a Convention country of a local judicial document.

(2) This Part does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention.

80.04 Application for request for service abroad (1) A person may apply to the Registrar, in

the Registrar's capacity as an authority competent to forward a request for service under Article 3 of the Hague Convention, for a request for service in a Convention country of a local judicial document.

(2) The application must be accompanied by 3 copies of each of the following documents—

(a) a draft request for service abroad, which must be in accordance with Part 1 of Form 80A;

(b) the document to be served;

(c) a summary of the document to be served, which must be in accordance with Form 80B;




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(d) if, under Article 5 of the Hague Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, the official language or one of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served.

(3) The application must contain a written undertaking to the Court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no practitioner on the record for the applicant in those proceedings, by the applicant—

(a) to be personally liable for all costs that are incurred—

(i) by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served; or

(ii) by the use of any particular method of service that has been requested by the applicant for service of the documents to be served; and

(b) to pay the amount of those costs to the Registrar within 28 days after receipt from the Registrar of a notice specifying the amount of those costs under Rule 80.06(3); and




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(c) to give such security for those costs as the Registrar may require.

(4) The draft request for service abroad—

(a) must be completed (except for signature) by the applicant; and

(b) must state whether (if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected) the applicant wants service to be attempted after the expiry of that time; and

(c) must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served; and

(d) may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.

(5) Any translation required under paragraph (2)(d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating—

(a) that the translation is an accurate translation of the documents to be served; and

(b) the translator's full name and address and the translator's qualifications for making the translation.

80.05 How application to be dealt with (1) If satisfied that the application and its

accompanying documents comply with Rule 80.04, the Registrar—




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(a) must sign the request for service abroad; and

(b) must forward 2 copies of the relevant documents—

(i) if the applicant has asked for the request to be forwarded to a nominated additional authority for the Convention country in which service of the document is to be effected, to the nominated additional authority; or

(ii) in any other case, to the Central Authority for the Convention country in which service of the document is to be effected.

(2) The relevant documents mentioned in paragraph (1)(b) are the following—

(a) the request for service abroad (duly signed);

(b) the document to be served;

(c) the summary of the document to be served;

(d) if required under Rule 80.04(2)(d), a translation into the relevant language of each of the documents mentioned in subparagraphs (b) and (c).

(3) If not satisfied that the application or any of its accompanying documents complies with Rule 80.04, the Registrar must inform the applicant of the respects in which the application or document fails to comply.




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80.06 Procedure on receipt of certificate of service

(1) Subject to paragraph (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the Registrar—

(a) must arrange for the original certificate to be filed in the proceedings to which the document relates; and

(b) must send a copy of the certificate to—

(i) the legal practitioner on the record for the applicant in those proceedings; or

(ii) if there is no legal practitioner on the record for the applicant in those proceedings, the applicant.

(2) For the purposes of paragraph (1), a certificate of service is in due form if—

(a) it is in accordance with Part 2 of Form 80A; and

(b) it has been completed by a certifying authority for the Convention country in which service was requested; and

(c) if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority, it has been so countersigned.

(3) On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in paragraph (1), the Registrar must send to the legal practitioner or applicant who gave the




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undertaking mentioned in Rule 80.04(3) a notice specifying the amount of those costs.

(4) For the purposes of paragraph (3), a statement of costs is in due form if—

(a) it relates only to costs of a kind mentioned in Rule 80.04(3)(a); and

(b) it has been completed by a certifying authority for the Convention country in which service was requested.

(5) Paragraph (1) does not apply unless—

(a) adequate security to cover the costs mentioned in paragraph (3) has been given under Rule 80.04(3)(c); or

(b) to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the Registrar.

80.07 Payment of costs (1) On receipt of a notice under Rule 80.06(3)

in relation to the costs of service, the legal practitioner or applicant, as the case may be, must pay to the Registrar the amount specified in the notice as the amount of those costs.

(2) If the legal practitioner or applicant fails to pay that amount within 28 days after receiving the notice—

(a) except by leave of the Court, the applicant may not take any further step in the proceedings to which the local judicial document relates until those costs are paid to the Registrar; and




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(b) the Registrar may take such steps as are appropriate to enforce the undertaking for payment of those costs.

80.08 Evidence of service A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of Rule 80.06(2)) that certifies that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that—

(a) service of the document was effected by the method specified in the certificate on that date; and

(b) if that method of service was requested by the applicant, that method is compatible with the law in force in the Convention country in which service was effected.

PART 3—DEFAULT JUDGMENT FOLLOWING SERVICE ABROAD OF INITIATING PROCESS

80.09 Application of Part This Part applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country.

80.10 Restriction on power to enter default judgment if certificate of service filed

(1) This Rule applies if—

(a) a certificate of service of initiating process has been filed in the proceedings (being a certificate in




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due form within the meaning of Rule 80.06(2)) that states that service has been duly effected; and

(b) the defendant has not appeared or filed a notice of address for service.

(2) In circumstances to which this Rule applies, default judgment may not be given against the defendant unless the Court is satisfied that—

(a) the initiating process was served on the defendant—

(i) by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory; or

(ii) if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to the defendant's residence) and that method is compatible with the law in force in that country, by that method; or

(iii) if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily; and

(b) the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.




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(3) In paragraph (2)(b), sufficient time means—

(a) 42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or

(b) such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.

80.11 Restriction on power to enter default judgment if certificate of service not filed

(1) This Rule applies if—

(a) a certificate of service of initiating process has not been filed in the proceedings; or

(b) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of Rule 80.06(2)) that states that service has not been effected—

and the defendant has not appeared or filed a notice of address for service.

(2) If this Rule applies, default judgment may not be given against the defendant unless the Court is satisfied that—

(a) the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested; and

(b) a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since




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the date on which initiating process was so forwarded; and

(c) every reasonable effort has been made—

(i) to obtain a certificate of service from the relevant certifying authority; or

(ii) to effect service of the initiating process—

as the case requires.

80.12 Setting aside judgment in default of appearance

(1) This Rule applies if default judgment has been entered against the defendant in proceedings to which this Part applies.

(2) If this Rule applies, the Court may set aside the judgment on the application of the defendant if it is satisfied that the defendant—

(a) without any fault on the defendant's part, did not have knowledge of the initiating process in sufficient time to defend the proceedings; and

(b) has a prima facie defence to the proceedings on the merits.

(3) An application to have a judgment set aside under this Rule may be filed—

(a) at any time within 12 months after the date on which the judgment was given; or

(b) after the expiry of that 12 month period, within such time after the defendant acquires knowledge of the judgment as




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the Court considers reasonable in the circumstances.

(4) Nothing in this Rule affects any other power of the Court to set aside or vary a judgment.'.

7 Forms 80A and 80B inserted After Form 75C of the County Court Civil Procedure Rules 2008 insert—

"Rules 80.04 and 80.06 FORM 80A

REQUEST FOR SERVICE ABROAD OF JUDICIAL DOCUMENTS AND CERTIFICATE

PART 1—REQUEST FOR SERVICE ABROAD OF JUDICIAL DOCUMENTS

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965

Identity and address of the forwarding authority requesting service

Identity and address of receiving authority [Central Authority/additional authority]

The undersigned forwarding authority (on the application of [name and address of applicant on whose behalf forwarding authority requests service]) has the honour to transmit—in duplicate—the documents listed below and, in conformity with Article 5 of the above-mentioned Convention, requests prompt service of one copy thereof on the addressee, i.e.:

(identity and address)

(a) in accordance with the provisions of subparagraph (a) of the first paragraph of Article 5 of the Convention*:

(b) in accordance with the following particular method (subparagraph (b) of the first paragraph of Article 5*):

(c) by delivery to the addressee, if the addressee accepts it voluntarily (second paragraph of Article 5).*




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The receiving authority [Central Authority/additional authority] is requested to return or to have returned to the forwarding authority a copy of the documents—and of the annexes*—with a certificate as provided in Part 2 of this Form on the reverse side.

List of documents

Done at , the

Signature or stamp (or both) of forwarding authority.

*Delete if inappropriate.

PART 2—CERTIFICATE


The undersigned authority has the honour to certify, in conformity with Article 6 of the Convention:

1. that the documents listed in Part 1 have been served*

the (date)

at (place, street, number)

in one of the following methods authorised by Article 5:

(a) in accordance with the provisions of subparagraph (a) of the first paragraph of the Article 5 of the Convention*:

(b) in accordance with the following particular method*:

(c) by delivery to the addressee, who accepted it voluntarily*.

The document referred to in the request, has been delivered to:

(identity and description of person)

relationship to the addressee (family, business or other)

2. that the document has not been served, by reason of the following facts*:




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In conformity with the second paragraph of Article 12 of the Convention, the forwarding authority is requested to pay or reimburse the expenses detailed in the attached statement*.

Annexes

Documents returned:

In appropriate cases, documents, establishing the service:

Done at , the

Signature or stamp (or both).

*Delete if inappropriate.

_______________

Rule 80.04 FORM 80B

SUMMARY OF THE DOCUMENT TO BE SERVED


(Article 5, fourth paragraph)

Identity and address of the addressee [Central Authority/additional authority]:

IMPORTANT

THE ENCLOSED DOCUMENT IS OF A LEGAL NATURE AND MAY AFFECT YOUR RIGHTS AND OBLIGATIONS. THE SUMMARY OF THE DOCUMENT TO BE SERVED WILL GIVE YOU SOME INFORMATION ABOUT ITS NATURE AND PURPOSE. YOU SHOULD




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HOWEVER READ THE DOCUMENT ITSELF CAREFULLY. IT MAY BE NECESSARY TO SEEK LEGAL ADVICE.

IF YOUR FINANCIAL RESOURCES ARE INSUFFICIENT YOU SHOULD SEEK INFORMATION ON THE POSSIBILITY OF OBTAINING LEGAL AID OR ADVICE EITHER IN THE COUNTRY WHERE YOU LIVE OR IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED.

ENQUIRIES ABOUT THE AVAILABILITY OF LEGAL AID OR ADVICE IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED MAY BE DIRECTED TO:

SUMMARY OF THE DOCUMENT TO BE SERVED

Name and address of the forwarding authority:

Particulars of the parties:

**JUDICIAL DOCUMENT

Nature and purpose of the document:

Nature and purpose of the proceedings and, when appropriate, the amount in dispute:

Date and place for entering appearance:

Court in which proceedings pending/judgment given:

**Date of judgment (if applicable):

Time limits stated in the document:

_______________".




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Division 2—Subpoena changes to reflect Rules of the Supreme Court

8 Form of subpoena (1) For Rule 42.03(1) of the County Court Civil

Procedure Rules 2008 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 County Court Civil Procedure Rules 2008 is revoked.

9 Compliance with subpoena (1) For Rule 42.06(1) of the County Court Civil

Procedure Rules 2008 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.".




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(2) For Rule 42.06(7)(b) of the County Court Civil Procedure Rules 2008 substitute—

"(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;

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

10 Production otherwise than upon attendance Rule 42.07(4) of the County Court Civil Procedure Rules 2008 is revoked.

11 Disposal of documents and things produced For Rule 42.10(3) and (4) of the County Court Civil Procedure Rules 2008 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.".




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

Form 42B of the County Court Civil Procedure Rules 2008 is revoked.

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

For Form 42A of the County Court Civil Procedure Rules 2008 substitute—

"Rule 42.03(1)(a) FORM 42A

SUBPOENA TO ATTEND TO GIVE EVIDENCE

[heading as in originating process]

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:




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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




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(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 County Court (including any Rules of the County 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.

_______________

Rule 42.03(1)(b) FORM 42B

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]




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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 Registrar 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)

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 Registrar

[County Court of Victoria 250 William Street Melbourne]

SCHEDULE OF DOCUMENTS

The documents and things you must produce are as follows:

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




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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




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 Registrar—

(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 Registrar 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 Registrar 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 Registrar, produce a list of the documents or things produced.




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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—

.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.






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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 Registrar 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.

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 documents All 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 documents Some 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]

_______________




30

Rule 42.03(1)(c) FORM 42C

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:





31

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:




Date:

Time:

Place:


The Registrar








32

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 Registrar—








33








(a) a photocopy; or





.jpg—image files











34

(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.















35



Date:


[name of addressee]

_______________".

Division 3—Subpoenas for production to Registrar 14 Compliance with subpoena

For Rule 42A.05(2), (3) and (4) of the County Court Civil Procedure Rules 2008 substitute—

"(2) 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.

(3) The copy of a document may be—

(a) a photocopy;


(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;




36

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

(4) Even where a subpoena specifically requires the production of the original, the addressee may, with the consent of the issuing party, produce a copy, instead of the original, of the document required to be produced.".

15 Objection by addressee or other person In Rule 42A.07(a) and (b) of the County Court Civil Procedure Rules 2008, after "inspected" insert "or copied".

16 Objection by party to inspection by other party (1) In Rule 42A.08(1) of the County Court Civil

Procedure Rules 2008, after "inspection" insert "or copying".

(2) In Rule 42A.08(2) of the County Court Civil Procedure Rules 2008—

(a) after "inspect" insert "and take copies of";

(b) after "to inspection" insert "or copying";

(c) after "that inspection" insert "or takes those copies".

17 Return or disposal of document After Rule 42A.12(3) of the County Court Civil Procedure Rules 2008 insert—

"(3A) The addressee of a subpoena must complete the declaration by the addressee provided for in the subpoena.

(3B) The completed declaration must be included in the subpoena or copy of the subpoena which accompanies the documents produced under the subpoena.".




37

18 Form 42AA substituted For Form 42AA of the County Court Civil Procedure Rules 2008 substitute—

'Rule 42A.03 FORM 42AA

SUBPOENA FOR PRODUCTION TO REGISTRAR


To [name]

of [address]:

YOU ARE ORDERED to produce to the Registrar 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 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 Registrar at the address below so that they are received on or before the date for production specified below:

Date for production:

The address of the Registrar to which the subpoena (or copy) and documents or things must be delivered or sent is:




38

The Registrar





NOTES



Informal service




Question concerning subpoena

4. Any question concerning this subpoena should be directed not to the Court but to the solicitor for the party at whose request the subpoena was issued.

Availability of documents for inspection and at trial

5. All documents produced in compliance with this subpoena will be available, unless earlier returned, at the trial of the proceeding and, subject to the following, may be inspected or copied in the




39

meantime by each party to the proceeding and his, her or its solicitor, and copies taken.

Objection by addressee to production or inspection

6. If you are the person required by this subpoena to produce documents, and you object to producing the documents or to their being inspected or copied by any one or more of the parties to the proceeding, you must notify the Registrar in writing of your objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party at whose request this subpoena is issued is required to inform you of the time and place when your objection will be heard by the Court.

Objection by party served with subpoena to inspection

7. If you are a party to the proceeding and have been served with a copy of this subpoena, and you object to the documents being inspected or copied by another party to the proceeding, you must notify the Registrar of your objection and the grounds of that objection before the day specified in the subpoena for the production of the documents. The party at whose request this subpoena is issued is required to inform you of the time and place when your objection will be heard by the Court.

Objection by plaintiff to production of hospital or medical file or record

8. If you are the plaintiff in this proceeding and this subpoena seeks from another person the production of a hospital or medical file or record concerning you or your condition, you may, before taking objection, inspect or copy the file or record produced to the Registrar and, after such inspection or copying, notify any objection you may have to inspection or copying of that file or record by any other party, provided that you make your inspection or copying and notify your objection and the grounds of that objection, if any, in writing within seven days after the day specified in the subpoena for production.

Obligation of issuing party after objection

9. If you are the party at whose request the subpoena was issued and any objection is taken, either to the production of the documents or to their being inspected or copied, you will be informed by the Registrar of the objection and of the time and place when the objection will be heard. You are required promptly to inform the addressee in the subpoena and all other parties to the proceeding accordingly so that they may be heard, if they wish, before the objection is determined.




40

Removal of document

10. Documents produced in compliance with this subpoena may not be removed from the custody of the Registrar, even for the purpose of their being photocopied, except upon application in writing signed by a solicitor for a party. Rule 42A.11(2) of Chapter I of the Rules of the County Court is then relevant:

"(2) A solicitor who signs an application under paragraph (1) and removes a document from the office of the Registrar, undertakes to the Court by force of this Rule that—

(a) the document will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and

(b) the document will be returned to the office of the Registrar in the same condition, order and packaging in which it was removed, as and when directed by the Registrar.".

A breach of this undertaking may be dealt with as a contempt of court.




12. 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. Even if the subpoena required the production of the original, you may, if you have the consent of the issuing party, produce a copy, instead of the original, of the document. If you are producing copies of documents, you are encouraged to produce them in electronic form.



(a) a photocopy;








41

.jpg—image files




any other format agreed with the issuing party; or

(c) in any other appropriate form.
















42






Date:


[name of addressee]'.

Division 4—Trans-Tasman proceedings 19 Definitions

In the Note at the foot of Rule 7A.01(2) of the County Court Civil Procedure Rules 2008—

(a) after— "• liable person"

insert— "• NZ judgment";

(b) for— "• proceeding."

substitute— "• proceeding

• subpoena.".




43

20 Application of Order In Rule 7A.02 of the County Court Civil Procedure Rules 2008, after "proceeding" insert "or matter".

21 Commencement of proceeding for order under Trans-Tasman Proceedings Act

In Rule 7A.03(1) of the County Court Civil Procedure Rules 2008—

(a) for "A proceeding" substitute "Except as otherwise provided by or under the Trans-Tasman Proceedings Act or by this Order, a proceeding";

(b) for "by filing an originating motion in accordance with Order 5." substitute "by originating motion.".

22 Interlocutory application under Trans-Tasman Proceedings Act

In Rule 7A.04 of the County Court Civil Procedure Rules 2008—

(a) after "interlocutory application" insert "of which notice is to be given to any person";

(b) for "by filing a summons in accordance with Rule 4.02." substitute "by summons.".

23 Application for interim relief In Rule 7A.05(2) of the County Court Civil Procedure Rules 2008—

(a) in paragraph (a)—

(i) in subparagraph (i), after "court;" insert "and";




44

(ii) in subparagraph (ii), after "proceeding;" insert "and";

(b) in paragraph (b), in subparagraphs (i) and (ii), after "commenced;" insert "and".

24 Application for leave to serve subpoena in New Zealand

(1) For Rule 7A.06(1) of the County Court Civil Procedure Rules 2008 substitute—

"(1) An application under section 31(1) of the Trans-Tasman Proceedings Act for leave to serve a subpoena in New Zealand may be made—

(a) orally to the Court; and

(b) without summons or notice to any person.".

(2) In Rule 7A.06(2) of the County Court Civil Procedure Rules 2008, for "summons" substitute "application".

(3) For the Note at the foot of Rule 7A.06(2) of the County Court Civil Procedure Rules 2008 substitute— "Note

Pursuant to section 37(4) of the Trans-Tasman Proceedings Act, the Court may make orders to ensure that the person complying with the subpoena receives the amount of the person's reasonable expenses in so complying.".

25 Application to set aside subpoena (1) In Rule 7A.08(1) of the County Court Civil

Procedure Rules 2008, after "An application" insert "under section 35 of the Trans-Tasman Proceedings Act".




45

(2) In Rule 7A.08(2)(a) of the County Court Civil Procedure Rules 2008 omit "and".

26 Application for issue of certificate of non-compliance with subpoena

(1) In Rule 7A.09(1) of the County Court Civil Procedure Rules 2008, for "issue" substitute "issue, under section 38 of the Trans-Tasman Proceedings Act,".

(2) For Rule 7A.09(2)(a) and (b) of the County Court Civil Procedure Rules 2008 substitute—

"(a) orally to the Court; and


27 Form of certificate of non-compliance (1) In Rule 7A.10(1) of the County Court Civil

Procedure Rules 2008 omit "issued under section 38 of the Trans-Tasman Proceedings Act".


(a) for "An order granting a" substitute "The";

(b) for "authenticated in accordance with Rule 60A.02" substitute "sealed";

(c) for "making the order" substitute "who issued the certificate".

28 New Rule 7A.10.1 inserted After Rule 7A.10 of the County Court Civil Procedure Rules 2008 insert—

"7A.10.1 Application for registration of NZ judgment

(1) An application under section 67 of the Trans-Tasman Proceedings Act for registration under section 68 of that Act




46

of an NZ judgment shall be made to the Registrar. Note

See regulation 17 and Form 5 of the Trans-Tasman Proceedings Regulation 2012 of the Commonwealth made under the Trans-Tasman Proceedings Act.

(2) Where the Registrar registers an NZ judgment, the matter in which the judgment is registered shall, for the purposes of Rules 7A.11, 7A.12(1), 7A.13(1), 7A.14(1) and 7A.15(1), be taken to be a proceeding.".

29 Notice of registration of NZ judgment In Rule 7A.11 of the County Court Civil Procedure Rules 2008, for "a NZ registered judgment" substitute "a registered NZ judgment".

30 Application for extension of time to give notice of registration of NZ judgment

In Rule 7A.12(1) of the County Court Civil Procedure Rules 2008—

(a) for "a NZ judgment" substitute "an NZ judgment";

(b) for "shall be made by filing a summons in the proceeding in which the judgment was registered." substitute "may be made—

(a) orally to the Court in the proceeding in which the judgment is registered; and


31 Application to set aside registration of NZ judgment (1) In Rule 7A.13(1) of the County Court Civil

Procedure Rules 2008—

(a) for "a NZ judgment" substitute "an NZ judgment";




47

(b) for "was registered." substitute "is registered.".

(2) In the Note at the foot of Rule 7A.13 of the County Court Civil Procedure Rules 2008, for "a NZ judgment" substitute "an NZ judgment".

32 Application for stay of enforcement of registered NZ judgment to enable liable person to appeal

(1) In Rule 7A.14(1) of the County Court Civil Procedure Rules 2008, after "appeal" insert "against".

(2) In Rule 7A.14(2)(a) of the County Court Civil Procedure Rules 2008 omit "and".

33 Application for extension of time to apply for stay of enforcement of registered NZ judgment to enable liable person to appeal


(a) after "appeal" insert "against";

(b) for "summons." substitute "summons in the proceeding in which the judgment is registered.".

(2) In Rule 7A.15(2)(a) and (b) omit "and".

Part 3—Amendment of Chapter III



48

Part 3—Amendment of Chapter III 34 Subpoenas (1) For Rule 1.09(1A) of the County Court Criminal

Procedure Rules 20092, substitute—

"(1A) In a proceeding to which these Rules relate a subpoena shall be in accordance with—

(a) Form 1D, for a subpoena to attend to give evidence;

(b) Form 1E, for a subpoena to produce; or

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

(1B) An addressee need not comply with the requirement of a subpoena to attend to give evidence (a subpoena in Form 1D) or a subpoena both to attend to give evidence and to produce (a subpoena in Form 1EA) 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 1.09(4) and (5) of the County Court Criminal Procedure Rules 2009 substitute—

"(4) The addressee of a subpoena which is in accordance with Form 1E or Form 1EA 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.".




49

35 Form 1E (Notice to Addressee and Declaration) revoked

Form 1E of the County Court Criminal Procedure Rules 2009 is revoked.

36 Form 1D substituted and new Forms 1E and 1EA inserted

For Form 1D of the County Court Criminal Procedure Rules 2009 substitute—

"RULE 1.09(1A)(a) FORM 1D

CASE No.:

IN THE COUNTY COURT

OF VICTORIA

AT

BETWEEN:

*THE QUEEN/*THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecution

AND

ACCUSED #1 (and others according to the Schedule of Parties)

Accused

SUBPOENA TO ATTEND TO GIVE EVIDENCE

Date of Document: Solicitors Code:

Filed on behalf of: Telephone:

Prepared by: DX:

Ref:

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.




50


Date:

[Seal of the Court]


Place:

Email:

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





51



Conduct money





(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.






_______________




52

RULE 1.09(1A)(b) FORM 1E

CASE No.:

IN THE COUNTY COURT

OF VICTORIA

AT

BETWEEN:


Prosecution

AND


Accused

SUBPOENA TO PRODUCE



Prepared by: DX:

Ref:

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:




53

[Seal of the Court]


Place:

Email:

Details of subpoena

You must comply with this subpoena:



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 Registrar





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NOTES



Informal service





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 Registrar—



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 a police officer or the Solicitor for Public Prosecutions, before the later date or time.




55









(a) a photocopy; or





.jpg—image files











56

















57


Date:


[name of addressee]

_______________

RULE 1.09(1A)(c) FORM 1EA

CASE No.:

IN THE COUNTY COURT

OF VICTORIA

AT

BETWEEN:


Prosecution

AND


Accused

SUBPOENA BOTH TO ATTEND TO GIVE EVIDENCE AND TO PRODUCE



Prepared by: DX:

Ref:

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.





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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:


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:







59

Date:

Time:

Place:


The Registrar





NOTES



Informal service







60

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 Registrar—













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(a) a photocopy; or





.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 evidence you may be required to give under the subpoena or any document or thing the subject of the subpoena.





15. Note 14 is without prejudice to any power of the Court under any Rules of the County Court (including any Rules of the County Court providing for the arrest of an addressee who defaults in attendance




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in accordance with a subpoena) or otherwise, to enforce compliance with a 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.







Date:


[name of addressee]

_______________".



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Dated: 20 December 2017

P. B. KIDD, Chief Judge H. T. MASON

G. G. HICKS G. P. MULLALY

J. A. SMALLWOOD K. E. KINGS

S. M. COHEN J. L. PARRISH

M. E. SEXTON M. H. TINNEY

F. E. HOGAN G. T. CANNON

I. E. LAWSON M. E. DEAN

E. M. GAYNOR J. F. CARMODY

P. J. COISH R. H. SMITH

J. A. CAMPTON M. F. MACNAMARA

W. A. WILMOTH W. E. STUART

F. MILLANE J. A. JORDAN

S. S. DAVIS C. J. RYAN

F. P. HAMPEL G. F. MEREDITH

J. G. MORRISH R. W. DYER

P. D. GRANT C. M. QUIN

S. E. PULLEN A. J. TSALAMANDRIS

L. A. HANNAN S. L. MARKS

M. D. MURPHY G. L. LYON

C. M. O'NEILL E .W. WOODWARD

K. L. BOURKE D. A. TRAPNELL

J. M. J. PATRICK M. O'CONNELL

P. M. E. WISCHUSEN A. M. RYAN

P. M. TAFT T. E. WRAIGHT

F. SACCARDO

═════════════

Endnotes



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Endnotes

1 Rule 4: S.R. No. 148/2008. Reprint No. 3 as at 1 March 2016. Reprinted to S.R. No. 162/2015. Subsequently amended by S.R. Nos 43/2016, 144/2016, 21/2017, 36/2017 and 92/2017.

2 Rule 33(1): S.R. No. 183/2009. Reprint No. 1 as at 7 March 2014. Reprinted to S.R. No. 110/2013. Subsequently amended by S.R. Nos 14/2014, 100/2014, 178/2014, 210/2014 and 130/2015.

County Court (Chapters I and III Miscellaneous Amendments) Rules 2017 · S.R. No. 143/2017 . TABLE...

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