Victorian Consolidated Regulations

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SUPREME COURT (GENERAL CIVIL PROCEDURE) RULES 2015 - REG 84.13

Judicial registrar may act for another

If circumstances so require, a judicial registrar may hear and determine an application instead of the judicial registrar by whom it would otherwise be heard and determined.

Form 4A—Overarching obligations certification

Rule 4.09

OVERARCHING OBLIGATIONS CERTIFICATION

[ heading as in originating process ]

In accordance with section 41 of the Civil Procedure Act 2010 , I [ name of party ] certify to the Court that I have read and understood the overarching obligations set out in sections 16 to 26 of that Act and the paramount duty set out in section 16 of the Act.

Date:

Signed

[ To be signed personally by party
or if party is represented by a litigation guardian
or similar representative,
by that litigation guardian or representative,
or if party has no meaningful control of the proceeding
by virtue of a statute or a contract of insurance,
by the person in control of the proceeding
by virtue of the statute or contract of insurance ]

Form 4AB—Certification of prior overarching obligations certification

Rule 4.09.1

CERTIFICATION OF PRIOR OVERARCHING OBLIGATIONS CERTIFICATION

[ heading as in originating process ]

In accordance with section 41(5)(b) of the Civil Procedure Act 2010 , I [ name of legal practitioner ] certify to the Court that [ name of party ] is currently involved, or has been involved, in more than one civil proceeding and has personally made the overarching obligations certification in other civil proceedings in the Court within 2 years prior to the date of this certification.

Date:

Signed

[ To be signed by legal practitioner
representing party who has previously made overarching obligations certification in other civil proceedings in the Court ]

Form 4B—Proper basis certification

Rule 4.10(2)

PROPER BASIS CERTIFICATION

[ heading as in originating process ]

In accordance with section 42 of the Civil Procedure Act 2010 , I [ name of legal practitioner or if not legally represented, name of party ] certify to the Court that, in relation to [ identify document to which certification relates ] filed on behalf of [ specify party ], on the factual and legal material available to me at present:

[ in a civil proceeding which involves allegations of fact :]

*(a)     each allegation of fact in the document has a proper basis;

*(b)     each denial in the document has a proper basis;

*(c)     there is a proper basis for each non-admission in the document.

[ in a civil proceeding commenced by originating motion seeking a particular legal relief or remedy :]

*(a)     each claim in the document has a proper basis;

*(b)     each response in the document to a claim has a proper basis;

*(c)     each question posed to the Court in the document has a proper basis;

*(d)     each response in the document to each question posed to the Court has a proper basis.

Date:

Signed

*Delete if not applicable

Form 5A amended by S.R. No. 32/2017 rule 11.

Form 5A—Writ

Rule 5.02(1)

WRIT

IN THE SUPREME COURT 20 No.
OF VICTORIA

AT

BETWEEN
A . B . Plaintiff

and

C . D . Defendant

TO THE DEFENDANT

TAKE NOTICE that this proceeding has been brought against you by the plaintiff for the claim set out in this writ.

IF YOU INTEND TO DEFEND the proceeding, or if you have a claim against the plaintiff which you wish to have taken into account at the trial, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below.

YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by—

(a)     filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the writ has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and

(b)     on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this writ.

IF YOU FAIL to file an appearance within the proper time, the plaintiff may OBTAIN JUDGMENT AGAINST YOU on the claim without further notice.

*THE PROPER TIME TO FILE AN APPEARANCE is as follows—

(a)     where you are served with the writ in Victoria, within 10 days after service;

(b)     where you are served with the writ out of Victoria and in another part of Australia, within 21 days after service;

(c)     where you are served with the writ in Papua New Guinea, within 28 days after service;

(d)     where you are served with the writ in New Zealand under Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth, within 30 working days (within the meaning of that Act) after service or, if a shorter or longer period has been fixed by the Court under section 13(1)(b) of that Act, the period so fixed;

(e)     in any other case, within 42 days after service of the writ.

IF the plaintiff claims a debt only and you pay that debt, namely, $
and $ for legal costs to the plaintiff or the plaintiff's solicitor within the proper time for appearance, this proceeding will come to an end. Notwithstanding the payment you may have the costs taxed by the Court.

FILED [ insert date ]

Prothonotary

THIS WRIT is to be served within one year from the date it is filed or within such further period as the Court orders.

Page 2

[ Plaintiff 's indorsement of a statement of claim or of a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding .]

Page 3

1.     Place of trial—

(If no place of trial is specified, trial will be in Melbourne.)

2.     Mode of trial—

(If trial before a Judge of the Court and jury is not specified, trial will be before a Judge of the Court sitting alone.)

3.**     This writ was filed—

(a)     by the plaintiff in person;

(b)     for the plaintiff by [ name or firm of solicitor ], solicitor, of [ business address of solicitor ];

(c)     for the plaintiff by [ name or firm of solicitor ], solicitor, of [ business address of solicitor ] as agent for [ name or firm of principal solicitor ], solicitor, of [ business address of principal ].

4.     The address of the plaintiff is—

5.     The address for service of the plaintiff is—

[ Where the plaintiff sues by a solicitor, the address for service is the business address of the solicitor or, where the solicitor acts by an agent, the business address of the agent. Where the plaintiff sues without a solicitor, the address for service is stated in 4, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria .]

6.     The email address for service of the plaintiff is—

7.     The address of the defendant is—

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
*     [ Strike out this paragraph where order made fixing time for appearance and substitute "THE PROPER TIME TO FILE AN APPEARANCE is within days after service on you of this writ."]

**     [ Complete or strike out as appropriate. ]

Form 5B amended by S.R. No. 32/2017 rule 12.

Form 5B—Originating motion between parties

Rule 5.02(2)

ORIGINATING MOTION BETWEEN PARTIES

[ heading as in Form 5A ]

TO THE DEFENDANT

TAKE NOTICE that this proceeding by originating motion has been brought against you by the plaintiff for the relief or remedy set out below.

IF YOU INTEND TO DEFEND the proceeding, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below.

YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by:

(a)     filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the originating motion has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and

(b)     on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this originating motion.

IF YOU FAIL to file an appearance within the proper time, the plaintiff MAY OBTAIN JUDGMENT AGAINST YOU without further notice.

IF YOU FILE an appearance within the proper time, the plaintiff cannot obtain judgment against you except by application to the Court after notice to you by summons.

*THE PROPER TIME TO FILE AN APPEARANCE is as follows:

(a)     where you are served with the originating motion in Victoria, within 10 days after service;

(b)     where you are served with the originating motion out of Victoria and in another part of Australia, within 21 days after service;

(c)     where you are served with the originating motion in Papua New Guinea, within 28 days after service;

(d)     where you are served with the originating motion in New Zealand under Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth, within 30 working days (within the meaning of that Act) after service or, if a shorter or longer period has been fixed by the Court under section 13(1)(b) of that Act, the period so fixed;

(e)     in any other case, within 42 days after service of the originating motion.

FILED [ insert date ].

Prothonotary

THIS ORIGINATING MOTION is to be served within one year from the date it is filed or within such further period as the Court orders.

Page 2

[ Specify the relief or remedy sought and the Act, if any, under which the claim is made, and, where it includes the answer to any question, state the question .]

Page 3

1.     Place of trial—

(If no place of trial is specified, trial will be held in Melbourne.)

2.**     This originating motion was filed—

(a)     by the plaintiff in person;

(b)     for the plaintiff by [ name or firm of solicitor ], solicitor, of [ business address of solicitor ];

(c)     for the plaintiff by [ name or firm of solicitor ], solicitor, of [ business address of solicitor ] as agent for [ name or firm of principal solicitor ], solicitor, of [ business address of principal ].

3.     The address of the plaintiff is—

4.     The address for service of the plaintiff is—

[ Where the plaintiff sues by a solicitor, the address for service is the business address of the solicitor or, where the solicitor acts by an agent, the business address of the agent. Where the plaintiff sues without a solicitor, the address for service is stated in 3, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria .]

5.     The email address for service of the plaintiff is—

6.     The address of the defendant is—

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
*     [ Strike out this paragraph where order made fixing time for appearance and substitute "THE PROPER TIME TO FILE AN APPEARANCE is within days after service on you of this originating motion."]

**     [ Complete or strike out as appropriate. ]

Form 5C—Originating motion between parties

Rules 5.02(2), 41.19(2), 45.05(2)(b)

ORIGINATING MOTION BETWEEN PARTIES

( where commenced under Rule 45.05 )

[ heading as in Form 5A ]

TO THE DEFENDANT

TAKE NOTICE that this proceeding by originating motion has been brought against you by the plaintiff for the relief or remedy set out below.

ALSO TAKE NOTICE that the plaintiff cannot continue with the proceeding except by order of the Court. You will be given notice by summons of any application for the order and until the summons is served you are not required to take any step in the proceeding.

[ or where a summons for an order under Rule 45.05
or for judgment will be served with the originating motion ]

IF YOU INTEND TO DEFEND the proceeding you must attend before the Court at the time and place named in the summons served with this originating motion.

FILED [ insert date ].

Prothonotary

THIS ORIGINATING MOTION is to be served within one year from the date it is filed or within such further period as the Court orders.

Page 2

[ complete as in Form 5B ]

Page 3

[ complete as in Form 5B ]

Form 5D—Originating motion

Rule 5.02(2)

ORIGINATING MOTION

( where no defendant )

IN THE SUPREME COURT 20 No.
OF VICTORIA

AT

IN THE MATTER of an application by A . B . for [ describe nature of application and state the Act, if any, under which made ].

TAKE NOTICE that the plaintiff will apply to the Court on
[ insert date] at a.m. [or p.m.] for [specify the relief or remedy sought and the Act, if any, under which the claim is made, and where it includes any question to be answered, state the question ].

FILED [ insert date ].

Prothonotary

The address of the plaintiff is:

Form 5E amended by S.R. Nos 32/2017 rule 13, 58/2018 rule 25.

Form 5E—Originating motion for recovery of land under Order 53

Rules 5.02(2), 53.02(3)

ORIGINATING MOTION FOR RECOVERY OF LAND UNDER ORDER 53

IN THE SUPREME COURT 20 No.
OF VICTORIA

AT

BETWEEN
A . B . Plaintiff

and

C . D . Defendant

[ or if the plaintiff does not know the name of any person in occupation ]

BETWEEN

A . B . Plaintiff

and

(The plaintiff does not know the name of any person in
occupation to make defendant)

Defendant

TO THE DEFENDANT AND TO EVERY PERSON IN OCCUPATION OF THE LAND AT [ description of land *]

[ or where there is no defendant ]

TO EVERY PERSON IN OCCUPATION OF THE LAND AT [ description of land *]

TAKE NOTICE that this proceeding by originating motion has been commenced by the plaintiff for the recovery of land at . Further particulars of the claim appear in the affidavit made in support of the claim. A copy of the affidavit and of any exhibit referred to therein is served with this originating motion.

AND TAKE NOTICE that the plaintiff will apply to an Associate Judge in Court No. , Supreme Court, 436 Lonsdale Street, Melbourne on [e.g. 20 June 20 ] at a.m. [or p.m.] or so soon afterwards as the business of the Court allows. At that time the Associate Judge may hear an application by the plaintiff for judgment.

IF YOU ARE NAMED AS DEFENDANT AND INTEND TO DEFEND THIS PROCEEDING you must:

(a)     give notice of your intention by filing an appearance on or before the day specified above; and

(b)     attend before the Associate Judge as specified above.

YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by:

(a)     filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the originating motion has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and

(b)     on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this originating motion.

IF YOU FAIL to file an appearance on or before the day specified above or to attend before the Associate Judge on that day, the plaintiff MAY OBTAIN JUDGMENT AGAINST YOU without further notice.

IF YOU ARE IN OCCUPATION OF THE LAND AND ARE NOT NAMED AS DEFENDANT you may attend before the Associate Judge in person or by your counsel or solicitor on the day and at the time and place specified above and apply to be made a defendant.

FILED [e.g. 15 June 20 ].

Prothonotary

Page 2

1.     Place of trial—

(If no place of trial is specified, trial will be held in Melbourne.)

2.**     This originating motion was filed—

(a)     by the plaintiff in person;

(b)     for the plaintiff by [ name or firm of solicitor ], solicitor, of [ business address of solicitor ];

(c)     for the plaintiff by [ name or firm of solicitor ], solicitor, of [ business address of solicitor ] as agent for [ name or firm of principal solicitor ], solicitor, of [ business address of principal ].

3.     The address of the plaintiff is—

4.     The address for service of the plaintiff is—

[ Where the plaintiff sues by a solicitor, the address for service is the business address of the solicitor or, where the solicitor acts by an agent, the business address of the agent. Where the plaintiff sues without a solicitor, the address for service is stated in 3, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria .]

5.     The email address for service of the plaintiff is—

6.     [ If there is a defendant ] The address of the defendant is—

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
*     [ Note: The land should be so described as to be physically identifiable. ]

**     [ Complete or strike out as appropriate. ]

Form 5F amended by S.R. Nos 15/2017
rule 10, 32/2017 rule 14, revoked by S.R. No. 58/2018 rule 8(2).

    *     *     *     *     *



Form 5G inserted by S.R. No. 51/2016 rule 9, amended by S.R. No. 32/2017 rule 15, substituted by S.R. No. 32/2018 rule 21.

Form 5G—Originating motion for judicial review

Rules 5.02(2), 56.01(2)

[ heading as in Form 5A ]

ORIGINATING MOTION FOR JUDICIAL REVIEW

TO THE DEFENDANT

TAKE NOTICE that this proceeding by originating motion has been commenced by the plaintiff for the relief or remedy set out below.

IF YOU INTEND TO DEFEND the proceeding, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below.

YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed by:

(a)     filing a "Notice of Appearance" in the Prothonotary's office, 436 Lonsdale Street, Melbourne, or, where the originating motion has been filed in the office of a Deputy Prothonotary, in the office of that Deputy Prothonotary; and

(b)     on the day you file the Notice, serving a copy, sealed by the Court, at the plaintiff's address for service, which is set out at the end of this originating motion.

IF YOU FAIL to file an appearance within the proper time, the plaintiff MAY OBTAIN JUDGMENT AGAINST YOU without further notice.

IF YOU FILE an appearance within the proper time, the plaintiff cannot obtain judgment against you except by application to the Court after further notice to you. There will first be a directions hearing of which you will receive notice by summons or otherwise.

*THE PROPER TIME TO FILE AN APPEARANCE is as follows:

(a)     where you are served with the originating motion in Victoria, within 10 days after service;

(b)     where you are served with the originating motion out of Victoria and in another part of Australia, within 21 days after service;

(c)     where you are served with the originating motion in Papua New Guinea, within 28 days after service;

(d)     where you are served with the originating motion in New Zealand under Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth, within 30 working days (within the meaning of that Act) after service or, if a shorter or longer period has been fixed by the Court under section 13(1)(b) of that Act, the period so fixed;

(e)     in any other case, within 42 days after service of the originating motion.

FILED [ insert date ].

Prothonotary

Page 2

THE PLAINTIFF CLAIMS:

[ Set out the relief or remedy sought and the Act, if any, under which the claim is made, and where it includes the answer to any question, state the question .]

THE GROUNDS RELIED UPON ARE:

[ State the grounds upon which the relief or remedy is sought, and where any mistake or omission in any judgment, order or other proceeding in respect of which relief or remedy is sought is a ground, specify the mistake or omission .]

EXTENSION OF TIME**

[ If an extension of time is required under Rule 56.02 of Chapter I of the Rules of the Supreme Court or otherwise, say so and state briefly the circumstances relied upon for the extension of time sought .]

FURTHER PARTICULARS of the claim appear in the affidavit made in support of the claim. A copy of the affidavit and of any exhibit to the affidavit is served with this originating motion.

Page 3

1.     Place of trial—

(If no place of trial is specified, trial will be held in Melbourne.)

2.**     This originating motion was filed—

(a)     by the plaintiff in person;

(b)     for the plaintiff by [ name or firm of solicitor ], solicitor, of [ business address of solicitor ];

(c)     for the plaintiff by [ name or firm of solicitor ], solicitor, of [ business address of solicitor ] as agent for [ name or firm of principal solicitor ], solicitor, of [ business address of principal ].

3.     The address of the plaintiff is—

4.     The address for service of the plaintiff is—

[ Where the plaintiff sues by a solicitor, the address for service is the business address of the solicitor or, where the solicitor acts by an agent, the business address of the agent. Where the plaintiff sues without a solicitor, the address for service is stated in 3, but, where that address is outside Victoria, the plaintiff must state an address for service within Victoria .]

5.     The email address for service of the plaintiff is—

6.     The address of the defendant is—

–––––––––––––––––––––––––––––––––––––––––––––––––––
*     [ Strike out this paragraph where order made fixing time for appearance and substitute "THE PROPER TIME TO FILE AN APPEARANCE is within days after service on you of this originating motion."]

**     [ Complete or strike out as appropriate. ]

Form 7AAA inserted by S.R. No. 109/2016 rule 8.

Form 7AAA—Service out of Australia—
Notice to defendant served out of Australia

Rule 7.05

NOTICE TO DEFENDANT SERVED OUT OF AUSTRALIA

To the Defendant:

    1.     You have been served with an originating process out of Australia under  Rules 7.01 to 7.09 of the Rules of the Supreme Court of Victoria. A copy of those Rules is enclosed for your information. They show the scope of the jurisdiction of the Court in respect of claims against persons who are served out of Australia.

    2.     The grounds alleged by the plaintiff to support its claim to be entitled to serve you out of Australia are:

[ specify grounds ]

    3.     If you do not file an appearance (or if you file a conditional appearance and apply by summons within 14 days of filing the conditional appearance) the Court may, on application made by you, make an order setting aside the originating process or its service on you or dismissing or staying the proceeding. Without limiting the Court's powers in this regard, the Court may make such an order if satisfied that—

        (a)     the service was not authorised by the Rules of the Court; or

        (b)     this Court is an inappropriate forum for the trial of the proceeding; or

        (c)     the claim has insufficient prospects of success to warrant putting you to the time, expense and trouble of defending the claim.

    4.     Alternatively you may file an unconditional appearance (in the form prescribed by the Rules of the Court) within the time required under the Rules of the Court.

    5.     If you file an unconditional appearance, additional procedural obligations (such as an obligation to file a defence or an affidavit) may apply to you in accordance with the Rules of the Court.

    6.     If you do not file an unconditional appearance within the time required under the Rules of the Court and you have not made an application of a kind referred to in paragraph 3, the Court may give leave to the plaintiff to proceed against you without further notice.

Form 7A—Letter of request for service of document

Rule 7.13(2)

LETTER OF REQUEST FOR SERVICE OF DOCUMENT

[ heading as in originating process ]

To

A civil proceeding is now pending in the Supreme Court of Victoria in
which is plaintiff and is defendant and in which the plaintiff
claims .

And in order that the matters in dispute between the parties in the proceeding may be duly determined it is necessary that [ describe the document] be served on and it has been made to appear that is a national of and is domiciled or resident in at .

I ,the Prothonotary of the Supreme Court of Victoria, request that for the reasons stated above and for the assistance of the Court you will be pleased to cause the document [and a translation of it], [both of] which I send to you with this request, to be served on of .

And I inform you that proper arrangements have been made by the Court and by the Commonwealth of Australia for the reimbursement of any expenses incurred in carrying out the service requested.

And I further inform you that legal assistance with respect to the service of documents in the State of Victoria can be given by this Court at the request of a foreign court if that request is duly transmitted to the Attorney-General of the State of Victoria.

Dated:

Prothonotary of the Supreme
Court of the State of Victoria.

Form 7AA—Subpoena to give evidence (New Zealand)

Rule 7A.07(a)

SUBPOENA TO GIVE EVIDENCE (NEW ZEALAND)

No. of 20

IN THE SUPREME COURT OF VICTORIA

AT

APPLICANT[S] [ Name of Applicant(s )]

RESPONDENT[S] [ Name of Respondent(s )]

Notice to Witness

Trans-Tasman Proceedings Act 2010

This Notice is very important.

Please read it and the attached document or documents very carefully.

If you have any trouble understanding these documents you should get legal advice as soon as possible.

Attached to this notice is a subpoena.

The subpoena has been issued by the Supreme Court of Victoria.

The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 2006 (New Zealand)).

This notice:

    ●     sets out your rights relating to the subpoena; and

    ●     sets out your obligations relating to the subpoena; and

    ●     includes information about the way in which you may make an application to have the subpoena set aside.

Filed on behalf of [ name and role of party ]

Prepared by [ name of person/lawyer ]

Law firm [ if applicable ]

Tel     Fax

Email

Address for service
[ include State and postcode ]

Your rights

    1.     You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena.

    2.     An amount of money, or money and vouchers that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: ' Your obligations ').

    3.     If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court of Victoria that you be paid the additional amount you incurred.

    4.     You may apply to the Supreme Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible.

    5.     An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand.

Note:     Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice.

Your obligations

    1.     Unless the subpoena is set aside, you must comply with the attached subpoena if:

        (a)     when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either:

              (i)     enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or

              (ii)     a combination of money and vouchers (for example, travel tickets) to meet those expenses; and

        (b)     you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and

        (c)     the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and

        (d)     service of the subpoena complied with any other conditions specified in the order; and

        (e)     you are 18 years of age or older.

Failure to comply with the subpoena

If you do not comply with the subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed.

Grounds for setting aside a subpoena

    1.     The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and:

        (a)     you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or

        (b)     if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or

        (c)     you are being prosecuted or you are liable to prosecution for an offence in Australia; or

        (d)     you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or

        (e)     you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence).

    2.     The grounds on which the Court may set aside the subpoena include:

        (a)     the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense;

        (b)     compliance with the subpoena would cause you hardship or serious inconvenience;

        (c)     if the subpoena requires you to produce a document or thing and:

              (i)     that document or thing should not be taken out of New Zealand; and

              (ii)     satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means.

Note:     The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application.

Procedure for applying to set aside a subpoena

    1.     Application must be made to the Supreme Court of Victoria.

    2.     You may fax your application to that Court on fax number [ fax number of the Court ].

    3.     Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address.

    4.     The Prothonotary will arrange for service of your application and of any affidavit you lodge with the Court with your application.

    5.     The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing.

    6.     If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand.

    7.     If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used.

SUBPOENA TO GIVE EVIDENCE (NEW ZEALAND)

No. of 20

IN THE SUPREME COURT OF VICTORIA

AT

APPLICANT[S] [ Name of Applicant(s )]

RESPONDENT[S] [ Name of Respondent(s )]

TO:     [ name and address ]

You are ordered to attend to give evidence. See next page for details.

Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest and the imposition
of a fine under section 165 of the Evidence Act 2006 (New Zealand).

Please read Notes 1 to 8 at the end of this subpoena.

The last date for service of this subpoena is [ date ]. (See Note 2)

Date:

Signed by Prothonotary

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

Place:

Email:

Details of subpoena

Date, time and place at which you must attend to give evidence, unless you receive a 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

Leave to serve subpoena

    1.     You need not comply with this subpoena unless it is accompanied by:

        (a)     a copy of the order giving leave to serve this subpoena in New Zealand; and

        (b)     a notice in the prescribed form that:

              (i)     sets out your rights and obligations in relation to this subpoena; and

              (ii)     includes information about the way in which an application to have this subpoena set aside may be made.

Last day for service

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

Informal service

    3.     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 this subpoena, actual knowledge of this subpoena and of its requirements.

Addressee a corporation

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

Applications in relation to subpoena

    5.     You have the right to apply to the Court for an order with respect to any claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of this 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 the loss or expense, including legal costs, reasonably incurred in complying with this subpoena.

Contempt of court—arrest

    7.     Failure to comply with this subpoena without lawful excuse may result in your arrest and the imposition of a fine under section 165 of the Evidence Act 2006 (New Zealand).

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

*Delete if not applicable.

Form 7AB—Subpoena to produce documents (New Zealand)

Rule 7A.07(b)

SUBPOENA TO PRODUCE DOCUMENTS (NEW ZEALAND)

No. of 20

IN THE SUPREME COURT OF VICTORIA

AT

APPLICANT[S] [ Name of Applicant(s )]

RESPONDENT[S] [ Name of Respondent(s )]

Notice to Witness

Trans-Tasman Proceedings Act 2010

This Notice is very important.

Please read it and the attached document or documents very carefully.

If you have any trouble understanding these documents you should get legal advice as soon as possible.

Attached to this notice is a subpoena.

The subpoena has been issued by the Supreme Court of Victoria.

The subpoena may be served in New Zealand under New Zealand law (see section 163 of the Evidence Act 2006 (New Zealand)).

This notice:

    ●     sets out your rights relating to the subpoena; and

    ●     sets out your obligations relating to the subpoena; and

    ●     includes information about the way in which you may make an application to have the subpoena set aside.

Filed on behalf of [ name and role of party ]

Prepared by [ name of person/lawyer ]

Law firm [ if applicable ]

Tel     Fax

Email

Address for service
[ include State and postcode ]

Your rights

    1.     You are entitled to receive payment of an amount equal to the reasonable expenses you incur in complying with the subpoena.

    2.     An amount of money, or money and vouchers, that is sufficient to meet your reasonable expenses of complying with the subpoena must be given to you within a reasonable time before the date for compliance with the subpoena (see below: ' Your obligations ').

    3.     If, in complying with the subpoena, you incur expenses that are more than the amount that was given to you before you complied, you may obtain an order from the Supreme Court of Victoria that you be paid the additional amount you incurred.

    4.     You may apply to the Supreme Court of Victoria to have the subpoena wholly or partly set aside. If you wish to apply to have the subpoena set aside you should get legal advice as soon as possible.

    5.     An application can be made and determined by that Court without you having to go to Australia, or to retain Australian lawyers. All the necessary arrangements can be made in New Zealand.

Note:     Details of some of the grounds on which a subpoena can be set aside and the procedures for setting aside a subpoena are set out at the end of this notice.

Your obligations

    1.     Unless the subpoena is set aside, you must comply with the attached subpoena if:

        (a)     when the subpoena was served on you, or at some reasonable time before the date specified in the subpoena for compliance with it, you were offered or given either:

              (i)     enough money to meet your reasonable expenses in complying with it, including any travel and accommodation expenses; or

              (ii)     a combination of money and vouchers (for example, travel tickets) to meet those expenses; and

        (b)     you were given with the subpoena a copy of an order by a judge giving leave to serve the subpoena in New Zealand; and

        (c)     the subpoena was served on you before or on the date specified in the order as the last day on which the subpoena may be served; and

        (d)     service of the subpoena complied with any other conditions specified in the order; and

        (e)     you are 18 years of age or older.

    2.     If the subpoena only requires you to produce documents or things, it must specify the date on which the documents or things are required for production in the court or tribunal that issued the subpoena.

You may comply with the subpoena by producing the documents or things at a registry of the High Court of New Zealand at least 10 days before the date specified in the subpoena.

When you produce the documents or things at the registry you will be required to produce the subpoena and to pay the cost of sending the documents or things to the court or tribunal that issued the subpoena. You will be able to pay that cost out of the money given to you to meet your reasonable expenses of complying with the subpoena.

Failure to comply with the subpoena

If you do not comply with this subpoena you may be arrested and taken before the High Court of New Zealand. Unless the High Court is satisfied that failure to comply should be excused, a fine not exceeding NZ$10 000 may be imposed.

Grounds for setting aside a subpoena

    1.     The Court must set aside the subpoena if the subpoena requires you to attend at a place in Australia and:

        (a)     you do not have necessary travel documents and cannot reasonably get them within the time allowed for compliance with the subpoena; or

        (b)     if you complied with the subpoena—you would be liable to be detained for the purpose of serving a sentence; or

        (c)     you are being prosecuted or you are liable to prosecution for an offence in Australia; or

        (d)     you are liable to imposition of a penalty in civil proceedings in Australia (other than proceedings under the Australian Consumer Law); or

        (e)     you are subject to a restriction on your movements imposed by law or an order of a Court that is inconsistent with you complying with the subpoena (for example, bail conditions, release conditions or terms of a community based sentence).

    2.     The grounds on which the Court may set aside the subpoena include:

        (a)     the evidence you would give in the proceedings can be obtained satisfactorily by other means without significantly greater expense;

        (b)     compliance with the subpoena would cause you hardship or serious inconvenience;

        (c)     if the subpoena requires you to produce a document or thing and:

              (i)     that document or thing should not be taken out of New Zealand; and

              (ii)     satisfactory evidence of the contents of the document or satisfactory evidence of the thing can be given by other means.

Note:     The above list does not include all the matters the Court will consider in an application to set aside a subpoena, but if any of the matters in the list apply to you they should be included in your application.

Procedure for applying to set aside a subpoena

    1.     Application must be made to the Supreme Court of Victoria.

    2.     You may fax your application to that Court on fax number [ fax number of the Court ].

    3.     Your application must contain an address for service in New Zealand or Australia. Any documents to be served on you will be delivered, faxed or posted to you at that address.

    4.     The Prothonotary will arrange for service of your application and of any affidavit you lodge with the Court with your application.

    5.     The Court may determine your application without a hearing unless you, or the person who requested that the subpoena be issued, asks for a hearing.

    6.     If there is a hearing the Court can direct that it be held by video link (that is, a conference television link) or telephone. In that case you or your lawyer can take part in the hearing by video link or by telephone from a place in New Zealand.

    7.     If, in your application or within a reasonable time after lodging your application, you request that the hearing be held by video link or telephone, the Court must hold a hearing by video link or telephone. However, in such a case, the Court will determine which of video link or telephone will be used.

SUBPOENA TO PRODUCE DOCUMENTS (NEW ZEALAND)

No. of 20

IN THE SUPREME COURT OF VICTORIA

AT

APPLICANT[S] [ Name of Applicant(s )]

RESPONDENT[S] [ Name of Respondent(s )]

TO:     [ name and address ]

You are ordered to produce this subpoena or a copy of it and the documents or things specified in the Schedule. See next page for details.

Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest and the imposition
of a fine under section 165 of the Evidence Act 2006 (New Zealand).

Please read Notes 1 to 16 at the end of this subpoena.

The last date for service of this subpoena is [ date ]. (See Note 2)

Date:

Signed by Prothonotary

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

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 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 below to:

              (i)     the Prothonotary at the address specified in the subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 2 clear business days before the date specified in the subpoena for attendance and production; or

              (ii)     the Registrar of the High Court of New Zealand at the address specified in the subpoena for the purpose, or if more than one address is so specified, at any one of those addresses, so that they are received not less than 10 clear days before the date specified in the subpoena for attendance and production. (See Notes 6–12)

Date, time and place at which you must attend to produce the subpoena or a copy of it and documents or things:

Date:

Time:

Place:

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

The Prothonotary

Supreme Court of Victoria

[ address ]



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