Commonwealth Numbered Regulations

1995 No. 145 FAMILY LAW RULES (AMENDMENT) - RULE 3

3.1 After the heading, insert:
                              "Division 1-General"


3.2 New Division 2: After rule 10, insert:

"Division 2-Proceedings to which Part 2 of the
Evidence and Procedure (New Zealand) Act 1994 applies Application of Division

"11. This Division applies to a subpoena that is issued in a proceeding in the
Family Court to which Part 2 of the Evidence and Procedure (New Zealand)  Act
1994 applies. (NOTE: Section 7 of the
Evidence and Procedure (New Zealand) Act 1994 provides that Part 2 of that Act
applies to a subpoena that is issued in a proceeding, except a criminal
proceeding or a family proceeding, in a federal court or in a court of a State
or Territory that is specified in the regulations.)

Interpretation

"12. In this Division, unless the contrary intention appears:

   (a)  'court' means the Family Court of Australia; and

   (b)  any expression used that is also used in the
        Evidence and Procedure (New  Zealand) Act 1994 has the same meaning as
        it has in that Act.

Form of subpoena

"13. A subpoena that is to be served in New Zealand under section 8 of the
Evidence and Procedure (New Zealand) Act 1994 must be in accordance with Form
36, Form 37 or Form 38, as the case requires.

Leave to serve subpoena

"14. A person seeking leave to serve a subpoena in New Zealand under section 
8 of the Evidence and Procedure (New Zealand) Act 1994 must file:

   (a)  an application in accordance with Form 8; and

   (b)  an affidavit in accordance with rule 15. (NOTE: Subsection 10 (3) of
        the Evidence and Procedure (New Zealand) Act 1994 provides that
        service of a subpoena is effective only if it is accompanied by a copy
        of the order giving leave to serve the subpoena in New Zealand and by
        a notice in the prescribed form. The prescribed form of notice is the
        form set out in Schedule 2 of the Evidence and Procedure (New Zealand)
        Regulations.)

Contents of affidavit

"15. An affidavit filed under rule 14 must have attached to it a copy of the
subpoena and must set out, so far as the applicant can assert, the following
information:

   (a)  the name, age, occupation and address of the person named in the
        subpoena;

   (b)  the nature and significance of the evidence required from the person,
        or of the document or thing required to be produced by the person;

   (c)  any available evidence relating to whether the evidence, document or
        thing could be obtained by other means without significantly greater
        expense;

   (d)  the steps taken to ascertain whether the evidence, document or thing
        could be obtained without significantly greater expense;

   (e)  details of any inconvenience and hardship that may be caused to the
        person as a result of complying with the subpoena;

   (f)  the steps taken to ascertain whether any inconvenience or hardship
        would be caused to the person as a result of complying with the
        subpoena;

   (g)  the date by which it is intended to serve the subpoena on the person;

   (h)  the amount to be paid or tendered to the person for allowances and
        travelling expenses sufficient to meet the person's reasonable
        expenses of complying with the subpoena;

   (i)  whether the amount referred to in paragraph (h) is to be paid or
        tendered partly or wholly by vouchers;

   (j)  if the subpoena requires the person to attend the court to give
        evidence-the estimated time that attendance will be required;

   (k)  if the applicant is aware of any facts or matters that may be grounds
        on which the subpoena might be set aside under subsection 14 (2) or
        (3) of the Evidence and Procedure (New Zealand) Act 1994-those facts
        or matters.

Service of leave application

"16. Unless the court otherwise orders, a person who files an application for
leave to serve a subpoena in New Zealand under section 8 of the Evidence  and
Procedure (New Zealand) Act 1994 is not required to serve the application.

Hearing of leave application

"17. Unless the court otherwise orders or the applicant objects, the court may
determine an application for leave to serve a subpoena in New Zealand under
section 8 of the Evidence and Procedure (New Zealand) Act 1994 in chambers.

Conditions in giving leave

"18. The conditions referred to in paragraph 9 (4) (b) of the Evidence and 
Procedure (New Zealand) Act 1994 may include a condition that the applicant
undertake to pay to the person named in the subpoena any losses and expenses
reasonably incurred by the person in complying with the subpoena even if those
losses and expenses exceed the allowances and travelling expenses paid or
tendered to the person at the time of service of the subpoena.

Application to set aside subpoena

"19. A person seeking leave to set aside a subpoena that has been served in
New Zealand under section 8 of the Evidence and Procedure (New Zealand) Act 
1994 must file:

   (a)  an application in accordance with Form 8; and

   (b)  an affidavit setting out the facts in support of the application.

Production of document or thing in accordance with subpoena

"20. (1) This rule applies to a subpoena that:

   (a)  only requires production of a document or thing; and

   (b)  is served in New Zealand under section 8 of the
        Evidence and Procedure  (New Zealand) Act 1994 .

"(2) If:

   (a)  in accordance with a subpoena, a document or thing is produced, by a
        person, at a registry of the High Court of New Zealand; and

   (b)  the person obtains a receipt from the registry that identifies the
        document or thing and acknowledges its receipt and the receipt of the
        money or vouchers for the transportation of the document or thing; and

   (c)  the person transmits, by fax, a copy of the receipt and a copy of the
        subpoena to the registry of the court that issued the subpoena; the
        fax referred to in paragraph (c) is evidence of compliance with the
        subpoena.

"(3) Despite compliance with subsection 11 (1) of the Evidence and Procedure 
(New Zealand) Act 1994 , if:

   (a)  an amount of money or vouchers sufficient to meet the cost of
        transporting a document or thing from New Zealand to the place in
        Australia specified in a subpoena is not paid or tendered to the
        registry of the High Court of New Zealand by or on behalf of the
        person named in the subpoena; and

   (b)  the document or thing is so transported; the cost must be paid by the
        person who obtained leave to serve the subpoena.

"(4) If a document or thing is received at a place in Australia in accordance
with a subpoena, the Registrar of the court that issued the subpoena must:

   (a)  list the matter for a directions hearing; and

   (b)  notify each party to the proceeding of the receipt of the document or
        thing and the date of the directions hearing.

Non-compliance with subpoena

"21. (1) A certificate issued under section 16 of the Evidence and Procedure 
(New Zealand) Act 1994 must be in accordance with Form 38A.

"(2) An application for a certificate referred to in subrule (1) is not
required to be in writing but must be accompanied by a draft certificate in
accordance with Form 38A.".