Commonwealth Numbered Regulations

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY (AMENDMENT) - RULE 6

6. Rules 25, 26, 27, 28, 29, 30, 31, 32 and 33 of Order 39 of the Principal
Rules are repealed and the following rules substituted: Power to issue

"25. The Court may, in any proceeding, issue a subpoena to give evidence, a
subpoena for production, or a subpoena for production and to give evidence, in
the prescribed form or in such other form as the Court directs for the
attendance or production on any trial or other occasion of or by the person
named before the Court or before any Judge, officer, examiner or other person
having authority to take evidence. Return date for subpoena for production

"26. A subpoena for production shall not require a person to produce a
document earlier than 14 days after the service of the subpoena, unless the
Court orders otherwise. Conduct money

"27. (1) A person named shall be excused from complying with a subpoena
requiring him to attend or produce any document or thing on any day on which
his attendance is required unless a sum sufficient to meet his reasonable
expenses of complying with the subpoena in relation to that day is paid or
tendered to him at the time of service of the subpoena or not later than a
reasonable time before that day.

"(2) Where the person named is a corporation the sum mentioned in sub-rule (1)
may be paid or tendered to any person on whom service of the subpoena may be
effected. Production by non-party

"28. (1) Where the person named in a subpoena for production of any document
or thing in relation to a proceeding, being a subpoena requiring attendance
before the Court or a Judge or officer of the Court, is not a party to the
proceeding, the subpoena shall, unless the Court otherwise orders, permit him
to produce the document or thing to the Registrar not later than the day
before the first date on which his attendance is required, instead of
attending and producing the document or thing as required by the subpoena.

"(2) Where a document or thing is produced to the Registrar pursuant to
sub-rule (1), the Registrar shall-

   (a)  give a receipt to the person producing the document or thing; and

   (b)  produce the document or thing as the nature of the case requires or as
        the Court directs.

"(3) This rule does not apply to so much of a subpoena as requires the person
named to attend to give evidence in any proceeding. Costs of complying with
subpoena

"29. (1) Where a person named in a subpoena for production of any document or
thing in relation to a proceeding is not a party to the proceeding and he
incurs substantial expense or loss in complying with the subpoena the Court or
Judge dealing with the proceeding may order that the party who requested the
issue of the subpoena pay to that person, in addition to any amount which the
person served with the subpoena is entitled to be paid pursuant to rule 27 of
this Order, or pursuant to rule 7 of Order 65 and the Fourth Schedule, an
amount which is sufficient to compensate him for such expense or loss as is
reasonably incurred or lost by that person in complying with the subpoena.

"(2) Where an order is made under sub-rule (1) the Court or Judge hearing the
matter shall either fix the amount or direct that the amount shall be fixed by
the taxing officer.

"(3) The provisions of Order 65 apply mutatis mutandis to any taxation under
this rule. Banker's books

"30. (1) Where, in any proceeding, the person named in the subpoena is an
officer of a bank, and the bank is not a party to the proceeding, and the
subpoena requires the officer to produce any banker's book, the contents of
which can be proved under legislation in force in the Territory by means other
than the production of the book, the subpoena shall, unless the Court
otherwise orders, expressly permit the officer to produce proof of the
relevant entries in accordance with that legislation, instead of producing the
banker's book.

"(2) When issuing a subpoena the Registrar shall not be concerned to enquire
whether sub-rule (1) applies to the subpoena, but the Court may set aside as
irregular a subpoena which does not comply with sub-rule (1). Issue-Forms 45,
46, 47 and 48

"31. (1) On request by a party, the Registrar shall, unless the Court
otherwise orders, issue a subpoena to give evidence, a subpoena for production
or a subpoena for production and to give evidence.

"(2) A subpoena shall be issued under seal.

"(3) A party requesting the issue of a subpoena shall file a copy of the
subpoena, but need not file a praecipe for subpoena.

"(4) Subpoenas shall be in, or substantially in, the forms numbered 45 to 48
in the First Schedule. Document or thing in custody of a court

"32. (1) The Registrar shall not issue a subpoena for production of any
document or thing in the custody of the Court or another court.

"(2) A party desiring the production of a document or thing in the custody of
another court shall request the Registrar to proceed under sub-rule (3).

"(3) On the receipt of a request under sub-rule (2), the Registrar shall
request the court holding the document or thing to send it to the Registrar.

"(4) The Registrar shall produce the document or thing as the nature of the
case requires or as the Court directs. Service

"32A. (1) Subject to sub-rule (2), a subpoena shall be served personally.

"(2) Where the person named in a subpoena is a party and has a solicitor in
the proceeding, the subpoena may, with the consent of the solicitor, be served
on the person named by leaving it at his address for service.

"(3) Where the person named in a subpoena is a medical expert-

   (a)  service of the subpoena on the expert may be effected at the place
        where the expert's practice is carried on, by handing it to some
        person apparently engaged (whether as servant or otherwise) in the
        practice and apparently of or above the age of 16 years; and

   (b)  if, on tender of the subpoena to the person mentioned in paragraph
        (a), he refuses to accept it, the subpoena may be served by putting it
        down in his presence after he has been told of the nature of the
        subpoena.

"(4) A subpoena shall not be enforced unless service of it has been effected
in accordance with this rule. Setting aside

"33. (1) The Court may, on motion by the person named in a subpoena, set aside
the subpoena wholly or in part.

"(2) Notice of a motion under sub-rule (1) shall be filed and served on the
party on whose request the subpoena was issued.