Commonwealth Numbered Regulations

1980 No. 87 FEDERAL COURT RULES (AMENDMENTS) - REG 2

2. The following rule is inserted in Order 4 of the Federal Court Rules after
rule 16: Preliminary discovery

"17. (1) Where, on application by any person, it appears to the Court or a
Judge that-

   (a)  the applicant, having made reasonable inquiries, is unable to
        ascertain the identity of a person for the purpose of commencing
        proceedings against that person or is unable to ascertain the
        description of any person sufficiently for that purpose; and

   (b)  some person has or may have knowledge of facts, or has or may have in
        his possession, custody or power any document or thing tending to
        assist in the ascertainment of the identity or description of the
        person concerned, the Court or a Judge may order that person-

   (c)  to attend before the Court or a Judge and be orally examined on any
        matter relating to the identity or description of the person
        concerned; and

   (d)  to produce to the Court or a Judge any document or thing in his
        possession, custody or power relating to the identity or description
        of the person concerned.



"(2) Where, on the application of any person, the matters mentioned in
paragraph (1) (a) appear to the Court or a Judge and it further appears to the
Court or a Judge that a corporation has or may have in its possession, custody
or power any document or thing tending to assist in the ascertainment of the
identity or description of the person concerned, the Court or a Judge may
order the corporation or any officer of the corporation to produce any
document or thing in the possession, custody or power of the corporation
relating to the identity or description of the person concerned.



"(3) In this rule-
'description' includes the name, place of residence, place of business,
occupation and sex of the person concerned;
'person concerned' means the person referred to in paragraph (1) (a).



"(4) An application for an order under this rule shall be in or substantially
in the form numbered 5A in the First Schedule, the person or corporation
against whom the order is claimed being made respondent to the application.



"(5) An order made under sub-rule (1) or (2) shall be served personally on the
person or corporation ordered to attend or to produce any document or thing.



"(6) An application for an order under sub-rule (1) or (2) shall be made in
the Division in which the proceedings referred to in paragraph (1) (a) would
be dealt with.



"(7) An order under sub-rule (1) or (2) shall not require a person to attend
or to produce any document or thing on any day on which his attendance, or
production by him, is required, unless a sum sufficient to meet his reasonable
expenses of complying with the order in relation to that day is paid or
tendered to him at the time of service of the order or not later than a
reasonable time before that day.



"(8) Where an order under sub-rule (2) requires a corporation to produce any
document or thing, the sum mentioned in sub-rule (7) may be paid or tendered
to any person apparently an officer of, or in the service of, the corporation
and apparently of or above the age of sixteen years.



"(9) Where any person incurs expense or loss in complying with an order under
sub-rule (1) or (2) in an amount exceeding any sum paid under sub-rule (7),
the Court or a Judge may order the applicant to pay to that person an amount
sufficient to make good the expense or loss.".