Victorian Numbered Regulations

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SUPREME COURT (GENERAL CIVIL PROCEDURE) RULES 2015 (SR NO 103 OF 2015) - SCHEDULE 2

SCHEDULE 2

FILING AN APPEARANCE IN REDCREST

RedCrest

All documents filed in this proceeding must be filed in RedCrest unless the Court has otherwise ordered in a particular case or unless documents cannot be filed in RedCrest because of an impediment affecting RedCrest itself or affecting general access to RedCrest.

These Instructions

The Notice of Appearance is an important document. These instructions set out the basic steps for filing a Notice of Appearance in RedCrest.

Self-represented persons—Filing a Notice of Appearance

A self-represented person who is served with an Originating Process—RedCrest and who wishes to contest the claim must—

    1.     Complete the Notice of Appearance—RedCrest (Form 8AB); and

    2.     Within the time stated in the Originating Process—RedCrest, deliver the Notice of Appearance to the Supreme Court Registry.

Assistance will be given by Registry staff to ensure that the Notice of Appearance is correctly completed. Registry staff will then file the Notice of Appearance into the electronic file for the proceeding. There will also be an instruction manual available at Registry for all users.

Persons Represented by a Solicitor—Filing a Notice of Appearance

A solicitor who is required to file a Notice of Appearance on behalf of a client must follow the steps below. These are described in more detail in the online instruction manual available on the RedCrest public homepage www.redcrest.com.au.

    1.     If you do not have a username and password for RedCrest, complete and submit the application form available on the RedCrest public homepage at: www.redcrest.com.au ("Username and Password Applications"), and await processing and email advice for the assigned username and password. This should be provided usually within 24 hours (weekdays).

    2.     Assign your practitioner particulars to this case in accordance with the instruction manual.

    3.     Complete the Notice of Appearance—RedCrest (Form 8AB) using the online form available from the RedCrest public homepage.

    4.     File the Notice of Appearance—RedCrest in the case page file for the matter in the manner described in the online instruction manual.

    5.     If, by virtue of an order of the Court you are not required to file the Notice of Appearance—RedCrest in RedCrest or the Notice of Appearance cannot be filed in RedCrest because of an impediment affecting RedCrest itself or affecting general access to RedCrest, then you must file a Notice of Appearance—RedCrest (Form 8AB) in paper form or such other form or manner as the Prothonotary may allow at the Supreme Court Registry.

    6.     For further filings, follow the online instruction manual for the operation of RedCrest available on the RedCrest public homepage www.redcrest.com.au.

Any Questions?

If you have any questions, please call the RedCrest Help Desk or contact the Supreme Court Registry.

RedCrest Help Desk Contact Details: See RedCrest public homepage.

Supreme Court Registry [ insert address ] Melbourne, Tel: [ insert telephone number ] Hours. 9:30 am to 4:00 pm each business day.

*complete or delete as appropriate.

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 ]

Schedule

The documents and things you must produce are as follows:

[ If insufficient space attach list ]

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 the 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 the 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.

Production of subpoena or copy of it and documents or things by delivery or post

    5.     In so far as this subpoena requires production of this subpoena or a copy of it and a document or thing, instead of attending to produce this subpoena or a copy of it and the document or thing, you may comply with this subpoena by delivering or sending this subpoena or a copy of it and the document or thing to:

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

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

    6.     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 Prothonotary in writing of your objection and of the grounds of your objection.

    7.     Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to this subpoena being inspected by any party to the proceeding, the Prothonotary may permit the parties to the proceeding to inspect the document or thing.

Production of a number of documents or things

    8.     If you produce more than one document or thing, you must, if requested by the Prothonotary, produce a list of the documents or things produced.

Production of copy instead of original

    9.     You may, with the consent of the issuing party, produce a copy, instead of the original, of any document that the subpoena requires you to produce.

    9A.     The copy of a document may be:

        (a)     a photocopy; or

        (b)     in an electronic form that the issuing party has indicated will be acceptable.

Return or destruction of documents or copies

    10.     You may, at the time of production, inform the Court that any document or copy of a document produced need not be returned and may be destroyed.

    11.     If you have so informed the Court, the Prothonotary may destroy the document or copy instead of returning it to you.

Applications in relation to subpoena

    12.     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

    13.     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.

Banker's book

    14.     In so far as this subpoena requires production of this subpoena or a copy of it and a banker's book, if section 19 and other applicable provisions of the Evidence Act 2006 (New Zealand) would have applied if this subpoena has been issued in a New Zealand proceeding, instead of producing the banker's book, you may produce proof of the relevant entries in accordance with the applicable provisions of the Evidence Act 2006 (New Zealand).

Contempt of court—arrest

    15.     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).

    16.     Note 15 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 7AC—Subpoena to give evidence and produce documents (New Zealand)

Rule 7A.07(c)

SUBPOENA TO GIVE EVIDENCE AND 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 GIVE EVIDENCE AND 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 attend to give evidence and 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 to give evidence

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:

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.

Details of subpoena to produce documents

In so far as you are required by this subpoena to produce this subpoena or a copy of it and documents or things, 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 this subpoena for the purpose, or if more than one address is specified, at any of those addresses, so that they are received not less than 2 clear business days before the date specified in this 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 specified, at any of those addresses, so that they are received not less than 10 clear days before the date specified in this subpoena for attendance and production. (See Notes 6–12)

Date, time and place at which you must attend to produce this 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 ]

Schedule

The documents and things you must produce are as follows:

[ If insufficient space attach list ]

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 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

    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.

Production of subpoena or copy of it and documents or things by delivery or post

    5.     In so far as this subpoena requires production of this subpoena or a copy of it and a document or thing, instead of attending to produce this subpoena or a copy of it and the document or thing, you may comply with this subpoena by delivering or sending this subpoena or a copy of it and the document or thing to:

        (a)     the Prothonotary at the address specified in this 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 this subpoena for attendance and production; or

        (b)     the Registrar of the High Court of New Zealand at the address specified in this 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 this subpoena for attendance and production.

    6.     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 Prothonotary in writing of your objection and of the grounds of your objection.

    7.     Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to this subpoena being inspected by any party to the proceeding, the Prothonotary may permit the parties to the proceeding to inspect the document or thing.

Production of a number of documents or things

    8.     If you produce more than one document or thing, you must, if requested by the Prothonotary, produce a list of the documents or things produced.

Production of copy instead of original

    9.     You may, with the consent of the issuing party, produce a copy, instead of the original, of any document that this subpoena requires you to produce.

    9A.     The copy of a document may be:

        (a)     a photocopy; or

        (b)     in an electronic form that the issuing party has indicated will be acceptable.

Return or destruction of documents or copies

    10.     You may, at the time of production, inform the Court that any document or copy of a document produced need not be returned and may be destroyed.

    11.     If you have so informed the Court, the Prothonotary may destroy the document or copy instead of returning it to you.

Applications in relation to subpoena

    12.     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

    13.     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.

Banker's book

    14.     In so far as this subpoena requires production of this subpoena or a copy of it and a banker's book, if section 19 and other applicable provisions of the Evidence Act 2006 (New Zealand) would have applied if this subpoena has been issued in a New Zealand proceeding, instead of producing the banker's book, you may produce proof of the relevant entries in accordance with the applicable provisions of the Evidence Act 2006 (New Zealand).

Contempt of court—arrest

    15.     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).

    16.     Note 15 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 7AD—Certificate of non-compliance with subpoena (New Zealand)

Rule 7A.10

CERTIFICATE OF NON-COMPLIANCE WITH SUBPOENA (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 THE HIGH COURT OF NEW ZEALAND

The Supreme Court of Victoria certifies that:

        (a)     the Court gave leave to serve a subpoena in New Zealand under the Trans-Tasman Proceedings Act 2010 of the Commonwealth on [ insert date of leave ]; and

        (b)     [ person named in subpoena ] has failed to comply with the subpoena.

A copy of the subpoena and a copy of the order giving leave to serve in New Zealand are annexed to this certificate.

*No application to set aside the subpoena either wholly or in part has been made.

OR

*An application to set aside the subpoena was dismissed by order made on [ insert date ]. A copy of this order is annexed to this certificate.

Date:

Signed

*Delete if not applicable.

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 ]

Form 8A—Notice of appearance

Rule 8.05(1)

NOTICE OF APPEARANCE

[ heading as in originating process ]

FILE an appearance for [ full name of defendant ] the abovenamed defendant.

Dated:

[ Signed ]

The address of the defendant is

[ insert address ].

*[ Where the Service and Execution of Process Act 1992 of the Commonwealth applies ] The address for service of the defendant within Australia is [ insert address ].

*[ Where the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies ] The address for service of the defendant in Australia or New Zealand is [ insert address ].

*[ Where neither of those Acts applies and the defendant appears in person and the address of the defendant is outside Victoria ] The address of the defendant within Victoria for service is [ insert address ].

*[ Where neither of those Acts applies and the defendant appears by a solicitor ] The name or firm and the business address within Victoria of the solicitor for the defendant is [ insert name or firm and business address ].

*[ Where neither of those Acts applies and the solicitor is an agent of another ] The name or firm and business address of the principal is [ insert name or firm and business address ].

*delete if not applicable.

Form 8AB—Notice of appearance—RedCrest

Rule 8.05(1.1)

NOTICE OF APPEARANCE—REDCREST

[ heading as in originating process ]

FILE an appearance for [ full name of defendant ] the abovenamed defendant.

[ name of person or firm filing appearance ]

Date:

The address of the defendant is:

[ insert address ].

Email address is:

Contact telephone number is:

*[ Where the Service and Execution of Process Act 1992 of the Commonwealth applies ]

The address for service of the defendant within Australia is [ insert address ].

Email address is:

Contact telephone number is:

*[ Where the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies ]

The address for service of the defendant in Australia or New Zealand is [ insert address ].

Email address is:

Contact telephone number is:

*[ Where neither of those Acts applies and the defendant appears in person and the address of the defendant is outside Victoria ]

The address of the defendant within Victoria for service is [ insert address ].

Email address is:

Contact telephone number is:

*[ Where neither of those Acts applies and the defendant appears by a solicitor ]

The name or firm and the business address within Victoria of the case manager solicitor for the defendant is:

Name of the case manager solicitor within the firm is:

Individual email address of the case manager solicitor within the firm is:

Contact telephone number of the case manager solicitor is:

*[ Where neither of those Acts applies and the solicitor is an agent of another ] The name or firm and business address of the principal is [ insert name or firm and business address ].

*complete or delete as appropriate.

Form 8AC—Notice of conditional appearance—RedCrest

Rule 8.08(2)

NOTICE OF CONDITIONAL APPEARANCE—REDCREST

[ heading as in originating process ]

FILE a conditional appearance for [ full name of defendant ] the abovenamed defendant.

[ name of person or firm filing appearance ]

Date:

The address of the defendant is:

[ insert address ].

Email address is:

Contact telephone number is:

*[ Where the Service and Execution of Process Act 1992 of the Commonwealth applies ]

The address for service of the defendant within Australia is [ insert address ].

Email address is:

Contact telephone number is:

*[ Where the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies ]

The address for service of the defendant in Australia or New Zealand is [ insert address ].

Email address is:

Contact telephone number is:

*[ Where neither of those Acts applies and the defendant appears in person and the address of the defendant is outside Victoria ]

The address of the defendant within Victoria for service is [ insert address ].

Email address is:

Contact telephone number is:

*[ Where neither of those Acts applies and the defendant appears by a solicitor ]

The name or firm and the business address within Victoria of the case manager solicitor for the defendant is:

Name of the case manager solicitor within the firm is:

Individual email address of the case manager solicitor within the firm is:

Contact telephone number of the case manager solicitor is:

*[ Where neither of those Acts applies and the solicitor is an agent of another ] The name or firm and business address of the principal is [ insert name or firm and business address ].

*complete or delete as appropriate.

Form 8B—Notice of conditional appearance

Rule 8.08(2)

NOTICE OF CONDITIONAL APPEARANCE

[ heading as in originating process ]

FILE a conditional appearance for [ full name of defendant ] the abovenamed defendant.

Dated [ insert date ].

[ Signed ]

[ continue as in Form 8A ]

Form 10A—Heading and notice on counterclaim where defendant new party

Rule 10.04(5)

HEADING AND NOTICE ON COUNTERCLAIM WHERE DEFENDANT NEW PARTY

IN THE SUPREME COURT
OF VICTORIA

20 No.

AT

BETWEEN

A . B .

Plaintiff

and

C . D .

Defendant

(by original proceeding)

AND BETWEEN

C . D .

Plaintiff

and

A . B . and E . F .

Defendants

(by counterclaim)

To E . F .
of [ address ]

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

IF YOU INTEND TO DEFEND the claim 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 counterclaim 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 defendant's address for service, which is set out at the end of the counterclaim.

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

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

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

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

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

(d)     where you are served with the counterclaim 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 counterclaim.

COUNTERCLAIM

[ Set out in separate, consecutively numbered paragraphs all the material facts relied upon for the counterclaim and state precisely the relief claimed .]

The address of the defendant is:

The address for service 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 counterclaim."]

Form 10B—Notice of appearance to counterclaim

Rule 10.04(6)

NOTICE OF APPEARANCE TO COUNTERCLAIM

[ heading as in Form 10A ]

FILE an appearance for [ full name of defendant to counterclaim ] the abovenamed defendant to the counterclaim of the defendant.

Dated [ insert date ].

[ Signed ]

[ continue as in Form 8A ]

Form 11A—Third party notice

Rule 11.15(4)(a)

THIRD PARTY NOTICE

IN THE SUPREME COURT 20 No.
OF VICTORIA

AT

BETWEEN A.B. Plaintiff

and

C.D. Defendant

and

E.F. Third Party

To E . F .
of [ address ]

TAKE NOTICE that the plaintiff has brought this proceeding against the defendant for the claim set out in the writ and statement of claim [or originating motion and affidavit[s]] served herewith.

AND TAKE NOTICE that the defendant disputes the plaintiff's claim on the grounds set out in the defendant's defence served herewith, and claims to be entitled to relief against you on the grounds set out in the statement of claim indorsed on this notice.

IF YOU INTEND TO DISPUTE the plaintiff's claim against the defendant, or the defendant's claim against you, 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 defendant's address for service, which is set out at the end of this notice.

IF YOU FAIL to file an appearance within the proper time you will be taken to admit the validity of any judgment against the defendant and your own liability to the defendant to the extent claimed in the statement of claim indorsed on this notice, and the defendant may OBTAIN JUDGMENT AGAINST YOU without further notice.

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

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

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

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

(d)     where you are served with the notice 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 notice.

FILED [ insert date ].

Prothonotary

Page 2

STATEMENT OF CLAIM

[ Set out in separate, consecutively numbered paragraphs all the material facts relied upon for the claim against the third party and state precisely the relief claimed .]

Page 3

1.**     This notice was filed—

(a)     by the defendant in person;

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

(c)     for the defendant 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 ].

2.     The address of the defendant is—

3.     The address for service of the defendant is—

4.     The address of the third party 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 notice."]

**     [ Complete or strike out as appropriate. ]


Form 11B—Notice by one tortfeasor claiming contribution against another

Rule 11.15(5)

NOTICE BY ONE TORTFEASOR CLAIMING CONTRIBUTION AGAINST ANOTHER

[ heading as in originating process ]

TO THE DEFENDANT

TAKE NOTICE that the plaintiff has brought this proceeding against the defendants to recover damages for loss sustained [e.g. as the result of a collision between a motor car driven by you and a motor car driven by the defendant , which is alleged to have been caused by the negligence of the defendants].

AND TAKE NOTICE that the defendant claims to be entitled to contribution from you in respect of any sum which the plaintiff may recover herein against the defendant to the extent of such amount as may be found by the Court to be just and equitable having regard to the extent of your responsibility for such damages [ e . g . on the ground that your negligence contributed to the happening of the collision].

FILED [ insert date ]

Prothonotary

Form 11C—Third party notice—RedCrest

Rule 11.02(2)

THIRD PARTY NOTICE—REDCREST

IN THE SUPREME COURT OF VICTORIA

AT

COMMERCIAL COURT

LIST: [ insert List as appropriate, e.g. Commercial List
TEC List or Intellectual Property List ]

S ECI No.

[ to be inserted by the Court ]

BETWEEN

A.B.
Plaintiff

and

C.D.
Defendant

and

E.F.
Third Party

Date of document:

Filed on behalf of: the defendant

Prepared by [ name or firm of solicitor and name of case manager ]:

Tel:

Email:

Address:

Solicitor's Code:

Date of filing: [ to be inserted by the Court ]

TO E.F. :

TAKE NOTICE that the plaintiff has brought this proceeding against the defendant for the claim set out in the Originating Process—RedCrest served herewith.

AND TAKE NOTICE that the defendant disputes the plaintiff's claim on the grounds set out in the defendant's defence served herewith, and claims to be entitled to relief against you on the grounds set out in the statement of claim endorsed on this notice.

This third party notice has been filed electronically in the Court's Case Management System known as RedCrest.

IF YOU INTEND TO DISPUTE the plaintiff's claim against the defendant, or the defendant's claim against you, YOU MUST GIVE NOTICE of your intention by filing an appearance in the manner and within the proper time for appearance stated below.

YOU OR YOUR SOLICITOR may file the appearance. An appearance is filed in accordance with the procedures and requirements set out in Schedule 2 to this third party notice.

IF YOU FAIL to file an appearance in the proper manner and within the proper time you will be taken to admit the validity of any judgment against the defendant and your own liability to the defendant to the extent claimed in the statement of claim indorsed on this notice, and the defendant may OBTAIN JUDGMENT AGAINST YOU without further notice.

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

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

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

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

        (d)     where you are served with the originating process 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 process.

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

STATEMENT OF CLAIM

[ Set out in separate, consecutively numbered paragraphs all of the material facts relied upon for the claim against the third party and state precisely the relief claimed .]

    1     *This notice was filed—

        (a)     by the defendant in person;

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

        (c)     for the defendant 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 ].

    2     The address of the defendant is

    3     The address for service of the defendant is

    4     The address of the third party is

CIVIL PROCEDURE ACT CERTIFICATIONS

*OVERARCHING OBLIGATIONS CERTIFICATION

Rule 4.09

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: [ insert date of certification ]

Signed s/

[ 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. The electronic version is to be signed in accordance with the RedCrest protocol for signatures e.g. /s/ Jane Doe or s/ John Doe ].

*CERTIFICATION OF PRIOR OVERARCHING OBLIGATIONS CERTIFICATION

Rule 4.09.1

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: [ insert date of certification ]

Signed

[ To be signed by legal practitioner representing party who has previously made overarching obligations certification in other civil proceedings in the Court. The electronic version is to be signed in accordance with the RedCrest protocol for signatures e.g. /s/ Jane Doe or s/ John Doe ].

PROPER BASIS CERTIFICATION

Rule 4.10

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, on the factual and legal material available to me at present:

[ if this third party notice is in a civil proceeding which involves allegations of fact :]

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

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

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

Date: [ insert date of certification ]

Signed

[ To be signed by the legal practitioner or if party not legally represented, personally by the party. The electronic version to be signed in accordance with the RedCrest protocol for signatures e.g. /s/ Jane Doe or s/ John Doe ].

SCHEDULE 1

SCHEDULE OF PARTIES

[ if applicable ]

SCHEDULE 2

FILING AN APPEARANCE IN REDCREST

RedCrest

All documents filed in this proceeding must be filed in RedCrest unless the Court has otherwise ordered in a particular case or unless documents cannot be filed in RedCrest because of an impediment affecting RedCrest itself or affecting general access to RedCrest.

These Instructions

The Notice of Appearance is an important document. These instructions set out the basic steps for filing a Notice of Appearance in RedCrest.

Self-represented persons—Filing a Notice of Appearance

A self-represented person who is served with a Third Party Notice—RedCrest and who wishes to contest the claim must—

    1.     Complete the Notice of Appearance—RedCrest (Form 8AB); and

    2.     Within the time stated in the Third Party Notice—RedCrest, deliver the Notice of Appearance to the Supreme Court Registry.

Assistance will be given by Registry staff to ensure that the Notice of Appearance is correctly completed. Registry staff will then file the Notice of Appearance into the electronic file for the proceeding. There will also be an instruction manual available at Registry for all users.

Persons Represented by a Solicitor—Filing a Notice of Appearance

A solicitor who is required to file a Notice of Appearance—RedCrest on behalf of a client must follow the steps below. These are described in more detail in the online instruction manual available on the RedCrest public homepage www.redcrest.com.au.

    1.     If you do not have a username and password for RedCrest, complete and submit the application form available on the RedCrest public homepage at: www.redcrest.com.au ("Username and Password Applications") and await processing and email advice for the assigned username and password. This should be provided usually within 24 hours (weekdays).

    2.     Assign your practitioner particulars to this case in accordance with the instruction manual.

    3.     Complete the Notice of Appearance—RedCrest (Form 8AB) using the online form available from the RedCrest public homepage.

    4.     File the Notice of Appearance in the case page file for the matter in the manner described in the online instruction manual.

    5.     If, by virtue of an order of the Court you are not required to file the Notice of Appearance in RedCrest or the Notice of Appearance cannot be filed in RedCrest because of an impediment affecting RedCrest itself or affecting general access to RedCrest, then you must file a Notice of Appearance—RedCrest (Form 8AB) in paper form or such other form or manner as the Prothonotary may allow at the Supreme Court Registry.

    6.     For further filings, follow the online instruction manual for the operation of RedCrest available on the RedCrest public homepage www.redcrest.com.au.

Any Questions?

If you have any questions, please call the RedCrest Help Desk or contact the Supreme Court Registry.

RedCrest Help Desk Contact Details: See RedCrest public homepage.

Supreme Court Registry [ insert address ] Melbourne, Tel: [ insert telephone number ], Hours. 9:30 am to 4:00 pm each business day.

*complete or delete as appropriate.

Form 12A—Notice of claim to goods taken in execution

Rule 12.05(1)(b)

NOTICE OF CLAIM TO GOODS TAKEN IN EXECUTION

[ heading as in originating process ]

To the [ judgment creditor ]
of [ address ]

TAKE NOTICE that A . B . has claimed the goods [or certain goods] [ where only certain goods are claimed here enumerate them ] taken in execution by the sheriff under the warrant of execution issued in this proceeding.

WITHIN five days of service of this notice on you, you may serve notice in writing on the sheriff stating whether you admit or dispute the claim of A . B . to the goods.

IF you do not within the period of five days after service of this notice serve notice on the sheriff stating that you admit the claim or if within the period of five days you serve notice in writing on the sheriff that you dispute the claim, the sheriff may apply to the Court by summons for relief by way of interpleader. If you serve notice in writing on the sheriff stating that you admit the claim you will not be liable for any fees or expenses incurred by the sheriff after the notice is given.

Dated [ insert date ].

Sheriff

Form 15A—Order approving compromise of claim of minor

Rule 15.08(6)

ORDER APPROVING COMPROMISE OF CLAIM OF MINOR

[ heading as in originating process ]
[ other particulars as in Form 60C ]

JUDGE OF THE COURT [ or ASSOCIATE JUDGE]:

DATE MADE:

ORIGINATING PROCESS:

HOW OBTAINED:

[ state whether on application by summons before trial with date of summons, or at trial with date of commencement of trial ]

ATTENDANCE:

OTHER MATTERS:

1.     The plaintiff was born on [insert date of birth ].

2.     By a compromise entered into on 20 the defendant proposes to pay and the plaintiff desires to accept $ for the benefit of the plaintiff and the plaintiff's costs, including the costs of this application, in full settlement of the plaintiff's claim in the proceeding.

3.     The Court read the following material:

(a)     [ identify affidavits by date and name of deponent ];

(b)     the exhibits to the affidavits including the opinion of
of Counsel dated 20 .

4.     The defendant consents to the proposed compromise.

THE COURT ORDERS THAT:

1.     [ where order is made by a Judge of the Court ] There be special leave for the application to be made to a Judge of the Court.

2.     The compromise be approved.

3.     The defendant within days after service of a copy of this order on the defendant's solicitors pay $ to the Senior Master for the benefit of the plaintiff [where appropriate and $ to the solicitors for the plaintiff, to be disbursed or retained by them in payment of the items totalling $ referred to in the affidavit of dated 20 ].

4.     The costs of the plaintiff, including the costs of this application, be taxed, and when taxed, paid by the defendant.

5.     Subject to any further order, the Senior Master invest $ for the plaintiff to be paid out with the interest accrued thereon to the plaintiff upon his or her attaining the age of 18 years.

6.     Upon payment by the defendant of the sum[s] and costs referred to, the proceeding be forever stayed.

7.     Each party have liberty to apply.

8.     The exhibits to the affidavits [ where appropriate and a transcript of the evidence with respect to the application] be transmitted to the Senior Master's clerk.

DATE AUTHENTICATED:

Prothonotary

Form 15B—Order approving compromise of claim under Part III of Wrongs Act for benefit of minor

Rule 15.08(6)

ORDER APPROVING COMPROMISE OF CLAIM UNDER PART III OF WRONGS ACT FOR BENEFIT OF MINOR

[ heading as in originating process ]

[ other particulars as in Form 60C ]

JUDGE OF THE COURT [ or ASSOCIATE JUDGE]:

DATE MADE:

ORIGINATING PROCESS:

HOW OBTAINED:

[ state whether on application by summons before trial with date of summons, or at trial with date of commencement of trial ]

ATTENDANCE:

OTHER MATTERS:

1.     The dates of birth of the minors on whose behalf the proceeding is brought are:

[name] [date of birth] .

[name] [date of birth].

2.     By a compromise entered into on 20 the defendant proposes to pay and the plaintiff desires to accept [ where appropriate $ for the plaintiff and] $ and $ for and , respectively, the minors referred to above and the plaintiff's costs, including the costs of this application, in full settlement of the plaintiff's claim in the proceeding.

3.     The Court read the following material:

(a)     [ identify affidavits by date and name of deponent ];

(b)     the exhibits to the affidavits including the opinion of
of Counsel dated 20 .

4.     The defendant consents to the proposed compromise.

THE COURT ORDERS THAT:

1.     [ where order is made by a Judge of the Court ] There be special leave for the application to be made to a Judge of the Court.

2.     The compromise be approved.

3.     The defendant within days after service of a copy of this order on the defendant's solicitors pay [where appropriate $ to the solicitors for the plaintiff, being $ for the plaintiff and the balance of $ to be disbursed or retained by them in payment of the items referred to in the affidavit
of dated 20 and] $ to the Senior Master for the benefit of the minors referred to above, being $ for the benefit of and $ for the benefit of .

4.     The costs of the plaintiff, including the costs of this application, be taxed and, when taxed, paid by the defendant.

5.     Subject to any further order, the Senior Master invest $ and $ for and respectively, each sum to be paid out with the interest accrued thereon to the minor for whose benefit it was invested upon his or her attaining the age of 18 years.

[ continue as in Form 15A ]

Form 18AA—Notice of consent to be a group member

Rule 18A.02

NOTICE OF CONSENT TO BE A GROUP MEMBER

[ heading as in originating process ]

To: The Plaintiff and the Defendant

TAKE NOTICE THAT [ insert name of person ], a person referred to in section 33E(2) of the Supreme Court Act 1986 , consents to be a group member in this proceeding.

Dated: [ insert date ]

[ Signed ]

Signature of person consenting or that person's solicitor

Address of person consenting:

Position of person consenting:

Form 18AB—Notice of opting out by group member

Rule 18A.04

NOTICE OF OPTING OUT BY GROUP MEMBER

[ heading as in originating process ]

To:     The Prothonotary

    The Plaintiff

    The Defendant

I, [ name ], a group member in the above group proceeding, give notice under section 33J(2) of the Supreme Court Act 1986 that I am opting out of this proceeding.

Dated: [ insert date ]

[ Signed ]

Signature of group member or the group member's solicitor:

Address of group member:

Form 19A—Notice of a constitutional matter

Rule 19.02(3)

NOTICE OF A CONSTITUTIONAL MATTER

[ heading as in originating process ]

1.     The [ party whose case raises the matter ] gives notice that this proceeding involves a matter under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903 of the Commonwealth.

2.     [ State specifically the nature of the matter ].

3.     [ State the facts showing the matter is one to which section 78B of the Judiciary Act 1903 applies ].

Dated [ insert date ].

[ Signed ]

To the Prothonotary

And to

Form 28A—Filing confirmation notice

Rule 28.10(2)(a)

FILING CONFIRMATION NOTICE

IN THE SUPREME COURT

OF VICTORIA

AT

To [ name of authorised user ]

An electronic copy of the document now described:

[ description of document ]

is taken to have been filed in the Supreme Court in this proceeding under Part 2 of Order 28 on [ date ] at [ time ].

CASE DETAILS

Case number:

Case [ name of parties ]:

List:

Your reference:

Copies of this filing confirmation notice are permitted to be made for service and proof of service—refer to Rule 28.12.

This filing confirmation notice must be retained as proof of filing of the document described above—refer to Rules 28.14 and 40.08.

DATED:

[ Facsimile of Court Seal ]

Prothonotary

Form 29A—Notice for discovery

Rule 29.02(2)

NOTICE FOR DISCOVERY

[ heading as in originating process ]

To the [ identify party ]

You are required to make discovery of documents within 42 days after service of this notice on you.

Dated [ insert date ].

[ Signed ]

Form 29B—Affidavit of documents

Rule 29.04

AFFIDAVIT OF DOCUMENTS

[ heading as in originating process ]

I, the abovenamed , make oath and say as follows:

1.     I have in my possession, custody or power, the documents enumerated in Schedule 1 which are required to be discovered.

2.     The documents enumerated in Part 2 of Schedule 1 are privileged, and I object to produce them. The documents are privileged on the ground—

(a)     as to documents numbered 4 to 6, that
[ state the ground ];

(b)     as to document numbered 7, that
[ state the ground ].

3.     I have had, but no longer have, in my possession, custody or power, the documents enumerated in Schedule 2 which are required to be discovered.

4.     Document numbered 8, referred to in Schedule 2, was last in my possession, custody or power on [ state when ] and I believe that [ state belief as to what has become of it ].

5.     To the best of my knowledge, information and belief neither I nor my solicitor nor any other person on my behalf has now, or ever had, in my or his, her or its possession, custody or power, any document required to be discovered, other than the documents enumerated in the said Schedules 1 and 2.

*6.     In making a reasonable search as required by Rule 29.01.1 of Chapter I of the Rules of the Supreme Court, I did not search for the following category or class of document [ specify which category or class of document for which no search was made ].

*7.     The reason why I did not make a search for the category or class of documents referred to in clause 6 is [ specify reason ].

[ Describe each document in the Schedules as original or copy .]

SCHEDULE 1

Part 1

1.

2.

3.

Part 2

4.

5.

6.

7.

SCHEDULE 2

8.

Sworn, etc.

*Delete if not applicable.

Form 29C—Notice to produce

Rules 29.09(3), 29.10(5)

NOTICE TO PRODUCE

[ heading as in originating process ]

To the [ identify party ]

TAKE NOTICE that the [ identify party ] requires you to produce for that party's inspection the following documents referred to in your [ writ, pleading, particulars, affidavit, etc .] [ describe documents required ].

Dated [ insert date ].

[ Signed ]

Form 29D—Notice of default in making discovery of documents

Rule 29.12.1(2)

NOTICE OF DEFAULT IN MAKING DISCOVERY OF DOCUMENTS

[ heading as in originating process ]

To the [ identify party ]

YOU have failed to make discovery of documents to the [ identify party ] within the time limited by the Rules [or fixed by order of the Court made on [ insert date ].

TAKE NOTICE that unless you make discovery of documents to the [ identify party ] within 7 days of the day of service of this notice on you the plaintiff will apply to the Court for an order that the defence served by you be   struck out [ or the defendant will apply to the Court for an order that the proceeding be dismissed].

Dated [ insert date ].

[ Signed ]

Form 30A—Notice of default in answering interrogatories

Rule 30.09.1(2)

NOTICE OF DEFAULT IN ANSWERING INTERROGATORIES

[ heading as in originating process ]

To the [ identify party ]

YOU have failed to answer interrogatories served by the [ identify party ] for your examination within the time limited by the Rules [ or fixed by order of the Court made on [ insert date ].

TAKE NOTICE that unless you answer the interrogatories within 7 days of the day of service of this notice on you the plaintiff will apply to the Court for an order that the defence served by you be struck out [ or the defendant will apply to the Court for an order that the proceeding be dismissed].

Dated [ insert date ].

[ Signed ]

Form 35A—Notice to admit

Rules 35.03(4), 35.05(4)

NOTICE TO ADMIT

[ heading as in originating process ]

To the [ identify party ]

TAKE NOTICE that if you do not, within [ specify a number not less than 14 ] days after service of this notice upon you, serve a notice upon the
disputing any fact specified [ or the authenticity of any document mentioned] below, that fact [or the authenticity of that document] shall, for the purpose of this proceeding only, be taken to be admitted by you in favour of the . If you do serve a notice disputing that fact [or the authenticity of that document], and afterwards that fact [or the authenticity of that document] is proved, you shall pay the costs of proof, unless the Court otherwise orders.

1.

2. [specify each fact ]

or

1. [mention each document ]

2.

Dated [ insert date ].

[ Signed ]

Form 35B—Notice of dispute

Rules 35.03(4), 35.05(4)

NOTICE OF DISPUTE

[ heading as in originating process ]

To the [ identify party ]

The disputes the following facts specified in the 's notice dated [ insert date of notice ].

1.

[ identify each fact ]

2.

or

The disputes the authenticity of the following documents mentioned in the 's notice dated [insert date of notice].

1.

[ identify each document ]

2.

Dated [ insert date ].

[ Signed ]

Form 37AA—Freezing order

Rule 37A.02

FREEZING ORDER

[ title of proceeding ]

PENAL NOTICE

TO:     [ name of person against whom the order is made ]

IF YOU:

(A)     REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)     DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

TO:     [name of person against whom the order is made ]

This is a " freezing order " made against you on [ insert date ] by Justice [ insert name of Judge ] at a hearing without notice to you after the Court has been given the undertakings set out in Schedule A to this order and after the Court has read the affidavits listed in Schedule B to this order 1 .

The applicant has given to the Court the undertakings set out in Schedule A to this order.

THE COURT ORDERS:

INTRODUCTION

1.         (a)     The application for this order is made returnable immediately.

        (b)     The time for service of [ describe documents required to be served ] is abridged and service is to be effected by [ insert time and date ] 2 .

2.     Subject to the next paragraph, this order has effect up to and including [ insert date ] (" the return date "). On the return date there will be a further hearing in respect of this order at [ insert time ] a.m./p.m. before Justice [ insert name of Judge ] 3 .

3.     Anyone served with or notified of this order, including you, may apply to the Court at any time to vary or discharge this order or so much of it as affects the person served or notified.

4.     In this order

        (a)     " applicant ", if there is more than one applicant, includes all the applicants;

        (b)     " you ", where there is more than one of you, includes all of you and includes you if you are a corporation;

        (c)     " third party " means a person other than you and the applicant;

        (d)     " unencumbered value " means value free of mortgages, charges, liens or other encumbrances.

5.         (a)     If you are ordered to do something, you must do it by yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions.

        (b)     If you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way.

FREEZING OF ASSETS

[ For order limited to assets in Australia ]

6.         (a)     You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets which are in Australia (" Australian assets ") up to the unencumbered value of AUD$ (" the relevant amount ").

        (b)     If the unencumbered value of your Australian assets exceeds the relevant amount, you may remove any of those assets from Australia or dispose of or deal with them or diminish their value, so long as the total unencumbered value of your Australian assets still exceeds the relevant amount.

[ If the Court makes a world wide order, the following additional paragraph (c) also applies ]

        (c)     If the unencumbered value of your Australian assets is less than the relevant amount, and you have assets outside Australia (" ex-Australian assets ")—

              (i)     you must not dispose of, deal with or diminish the value of any of your Australian assets and ex-Australian assets up to the unencumbered value of your Australian and ex-Australian assets of the relevant amount; and

              (ii)     you may dispose of, deal with or diminish the value of any of your ex-Australian assets, so long as the unencumbered value of your Australian assets and ex-Australian assets still exceeds the relevant amount.

[ For either form of order ]

7.     For the purposes of this order

        (a)     your assets include—

              (i)     all your assets, whether or not they are in your name and whether they are solely or co-owned;

              (ii)     any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and

              (iii)     the following assets in particular—

    (A)     the property known as [ title/address ] or, if it has been sold, the net proceeds of the sale;

    (B)     the assets of your business [known as [ name ]] [carried on at [ address ]] or, if any or all of the assets have been sold, the proceeds of the sale; and

    (C)     any money in account [ numbered account number ] [ in the name of ] at [ name of bank and name and address of branch ];

        (b)     the value of your assets is the value of the interest you have individually in your assets.

PROVISION OF INFORMATION 4

8.     Subject to paragraph 9, you must—

        (a)     at or before the further hearing on the return date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing of all your assets in [Australia] [world wide], giving their value, location and details (including any mortgages, charges or other encumbrances to which they are subject) and the extent of your interest in the assets;

        (b)     within [ ] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information.

9.         (a)     This paragraph 9 applies if you are not a corporation and you wish to object to complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

              (i)     have committed an offence against or arising under an Australian law or a law of a foreign country; or

              (ii)     are liable to a civil penalty.

        (b)     This paragraph 9 also applies if you are a corporation and all persons who are able to comply with paragraph 8 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 8 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—

              (i)     have committed an offence against or arising under an Australian law or a law of a foreign country; or

              (ii)     are liable to a civil penalty.

        (c)     You must—

              (i)     disclose so much of the information required to be disclosed to which no objection is taken; and

              (ii)     prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

              (iii)     file and serve on each other party a separate affidavit setting out the basis of the objection.

EXCEPTIONS TO THIS ORDER

10.     This order does not prohibit you from—

        (a)     paying [up to $.................. a week/day on] [your ordinary] living expenses;

        (b)     paying [$.....................on] [your reasonable] legal expenses;

        (c)     dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred;

        (d)     in relation to matters not falling within sub-paragraphs (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation.

11.     You and the applicant may agree in writing that the exceptions in the preceding paragraph are to be varied. In that case the applicant or you must as soon as practicable file with the Court and serve on the other a minute of a proposed consent order recording the variation signed by or on behalf of the applicant and you, and the Court may thereafter order that the exceptions are varied accordingly.

12.         (a)     The order will cease to have effect if you—

              (i)     pay the sum of $........... into Court; or

              (ii)     pay that sum into a joint bank account in the name of your solicitor and the solicitor for the applicant as agreed in writing between them; or

              (iii)     provide security in that sum by a method agreed in writing with the applicant to be held subject to the order of the Court.

        (b)     Any such payment and any such security will not provide the applicant with any priority over your other creditors in the event of your insolvency.

        (c)     If this order ceases to have effect pursuant to sub-paragraph (a), you must as soon as practicable file with the Court and serve on the applicant notice of that fact.

COSTS

13.     The costs of this application are reserved.

PERSONS OTHER THAN THE APPLICANT AND RESPONDENT

14.     Set off by banks

This order does not prevent any bank from exercising any right of set off it has in respect of any facility which it gave you before it was notified of this order.

15.     Bank withdrawals by the respondent

No bank need inquire as to the application or proposed application of any money withdrawn by you if the withdrawal appears to be permitted by this order.

[ For world wide order ]

16.     Persons outside Australia

        (a)     Except as provided in sub-paragraph (b) below, the terms of this order do not affect or concern anyone outside Australia.

        (b)     The terms of this order will affect the following persons outside Australia—

              (i)     you and your directors, officers, employees and agents (except banks and financial institutions);

              (ii)     any person (including a bank or financial institution) who—

    (A)     is subject to the jurisdiction of this Court;

    (B)     has been given written notice of this order, or has actual knowledge of the substance of the order and of its requirements; and

    (C)     is able to prevent or impede acts or omissions outside Australia which constitute or assist in a disobedience of the terms of this order; and

              (iii)     any other person (including a bank or financial institution), only to the extent that this order is declared enforceable by or is enforced by a court in a country or state that has jurisdiction over that person or over any of that person's assets.

[ For world wide order ]

17.     Assets located outside Australia

Nothing in this order shall, in respect of assets located outside Australia, prevent any third party from complying or acting in conformity with what it reasonably believes to be its bona fide and properly incurred legal obligations, whether contractual or pursuant to a court order or otherwise, under the law of the country or state in which those assets are situated or under the proper law of any contract between a third party and you, provided that in the case of any future order of a court of that country or state made on your or the third party's application, reasonable written notice of the making of the application is given to the applicant.

SCHEDULE A

UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT

(1)     The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.

(2)     As soon as practicable, the applicant will—

        (a)     file a copy of this order and [ describe documents required to be filed ]; and

        (b)     serve on the respondent copies of this order and [ describe documents required to be served ].

(3)     As soon as practicable, the applicant will cause anyone notified of this order to be given a copy of it.

(4)     The applicant will pay the reasonable costs of anyone other than the respondent which have been incurred as a result of this order, including the costs of finding out whether that person holds any of the respondent's assets.

(5)     If this order ceases to have effect 5 the applicant will promptly take all reasonable steps to inform in writing anyone to whom the applicant has given notice of this order, or who the applicant has reasonable grounds for supposing may act upon this order, that it has ceased to have effect.

(6)     The applicant will not, without leave of the Court, use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in or outside Australia, other than this proceeding.

(7)     The applicant will not, without leave of the Court, seek to enforce this order in any country outside Australia or seek in any country outside Australia an order of a similar nature or an order conferring a charge or other security against the respondent or the respondent's assets.

[(8)     The applicant will—

        (a)     on or before [ date ] cause an irrevocable undertaking to pay in the sum of $ to be issued by a bank with a place of business within Australia, in respect of any order the court may make pursuant to undertaking (1) above; and

        (b)     immediately upon issue of the undertaking, cause a copy of it to be served on the respondent.] 6

SCHEDULE B 7

AFFIDAVITS RELIED ON

Name of Deponent of Affidavit

Date Affidavit Made







NAME AND ADDRESS OF APPLICANT'S LEGAL REPRESENTATIVES

The applicant's legal representatives are—

[ Name, address, reference, fax and telephone numbers both in and out of office hours and e-mail ]

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

1     The words “without notice to you” and “after the Court has read the affidavits listed in Schedule B to this orderare appropriate only in the case of an order without notice.

2     Paragraph 1 is appropriate only in the case of an order without notice.

3     Paragraph 2 is appropriate only in the case of an order without notice.

4     See Practice Note paragraphs 13 and 14.

5     For example, if the respondent pays money into Court or provides security, as provided for in paragraph 12 of the Order.

6     See Practice Note paragraph 17.

7     Schedule B is appropriate only in the case of an order without notice.

Form 37BA—Search order

Rule 37B.02

SEARCH ORDER

[ title of proceeding ]

PENAL NOTICE

TO: [ name of person against whom the order is made ]

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)     REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR

(B)     DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

TO:     [ name of person against whom the order is made ]

This is a " search order " made against you on [ insert date ] by Justice [ insert name of Judge ] at a hearing without notice to you after the applicant has given to the Court the undertakings set out in Schedule B to this order and after the Court has read the affidavits listed in Schedule C to this order.

The applicant has given to the Court the applicant's undertakings set out in Schedule B to this order.

The applicant's solicitor has given to the Court the applicant's solicitor's undertakings set out in Schedule B to this order.

Each independent solicitor has given to the Court the independent solicitor's undertakings set out in Schedule B to this order.

Each independent computer expert has given to the Court the independent computer expert's undertakings set out in Schedule B to this order.

THE COURT ORDERS:

INTRODUCTION

1.         (a)     The application for this order is made returnable immediately.

        (b)     The time for service of [ describe documents required to be served ] is abridged and service is to be effected by [ insert time and date ].

2.     Subject to the next paragraph, this order has effect up to and including [ insert date ] ( "the return date" ). On the return date at [ insert time ] a.m./p.m. there will be a further hearing in respect of this order before Justice [ insert name of Judge ].

3.     You may apply to the Court at any time to vary or discharge this order including, if necessary, by telephone to the Judge referred to in the immediately preceding paragraph (telephone no. ) or to the Judge in the Practice Court (telephone no. ).

4.     This order may be served only between [ insert time ] a.m./p.m. and [ insert time ] a.m./p.m. [on a business day] 1 .

5.     In this order

        (a)     " applicant " means the person who applied for this search order, and if there is more than one applicant, includes all the applicants;

        (b)     " independent computer expert " means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order;

        (c)     " independent solicitor " means the person identified as the independent solicitor in the search party referred to in Schedule A to this order;

        (d)     " listed thing " means the things referred to in Schedule A to this order;

        (e)     " premises " means the premises and any of the premises identified in Schedule A to this order including any vehicles and vessels that are under the respondent's control on or about those premises or that are otherwise identified in Schedule A;

        (f)     " search party " means the persons identified or described as constituting the search party in Schedule A to this order;

        (g)     " thing " includes document;

        (h)     " you ", where there is more than one of you, includes all of you and includes you if you are a corporation;

              (i)     any requirement that something shall be done in your presence means—

              (i)     in the presence of you or of one of the persons described in paragraph 6 below; or

              (ii)     if there is more than one of you, in the presence of each of you or, in relation to each of you, in the presence of one of the persons described in paragraph 6 below.

6.     This order must be complied with by you by—

        (a)     yourself;

        (b)     any director, officer, partner and responsible employee or agent of yourself; or

        (c)     any other person having responsible control of the premises.

7.     This order must be served by, and be executed under the supervision of, the independent solicitor.

ENTRY AND SEARCH

8.     Subject to paragraphs 10 to 19 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order.

9.     Having permitted members of the search party to enter the premises, you must—

        (a)     permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete;

        (b)     permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things;

        (c)     disclose to them the whereabouts of all the listed things in the respondent's possession, custody or power, whether at the premises or otherwise;

        (d)     disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out;

        (e)     do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords;

        (f)     permit the independent solicitor to remove from the premises into the independent solicitor's custody—

              (i)     the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things;

              (ii)     the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and

        (g)     permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent solicitor to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below.

RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL

10.     This order must not be executed at the same time as the execution by the police or other proper authority of a search warrant.

11.     You are not required to permit anyone to enter the premises until—

        (a)     the independent solicitor serves you with copies of this order and the documents referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and

        (b)     you are entitled to read this order and to have the independent solicitor explain the terms of this order to you.

12.     Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not to exceed two hours from the time of service or such longer period as the independent solicitor may permit)—

        (a)     may seek legal advice;

        (b)     may ask the Court to vary or discharge this order;

        (c)     (provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent solicitor in (if you wish) a sealed envelope or container; and

        (d)     may gather together any documents passing between you and your lawyers for the purpose of obtaining legal advice or otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent solicitor in (if you wish) a sealed envelope or container.

13.     Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant's solicitors, any thing handed to the independent solicitor in accordance with paragraphs 12(c) and (d) above and the independent solicitor must deliver it to the Court at or prior to the hearing on the return date.

14.     During any period referred to in paragraph 12 above, you must—

        (a)     inform and keep the independent solicitor informed of the steps being taken;

        (b)     permit the independent solicitor to enter the premises but not to start the search;

        (c)     not disturb or remove any listed things; and

        (d)     comply with the terms of paragraphs 25 and 26 below.

15.     Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent solicitor for safekeeping pending resolution of the dispute or further order of the Court.

16.     Before removing any listed thing from the premises (other than the things referred to in the immediately preceding paragraph), the independent solicitor must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant's solicitors a copy of the list signed by the independent solicitor.

17.     The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent solicitor to be your director, officer, partner or employee, agent or other person acting on your behalf or on your instructions.

18.     If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance.

19.     The applicant's solicitors and the independent solicitor must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about their contents or about anything observed at the premises until 4.30 p.m. on the return date or other time fixed by further order of the Court.

COMPUTERS

20.         (a)     If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant's solicitors (" the independent computer expert ").

        (b)     Any search of a computer must be carried out only by the independent computer expert.

        (c)     The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises.

        (d)     The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises or away from the premises or both for listed things and may copy the listed things electronically or in hard copy or both.

        (e)     The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.

        (f)     The independent solicitor must, at or prior to the hearing on the return date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter's report on the parties.

        (g)     If no independent computer expert has been appointed, but the independent solicitor considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved.

21.         (a)     This paragraph 21 applies if you are not a corporation and you wish to object to complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

              (i)     have committed an offence against or arising under an Australian law or a law of a foreign country; or

              (ii)     are liable to a civil penalty.

        (b)     This paragraph 21 also applies if you are a corporation and all persons who are able to comply with paragraph 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—

              (i)     have committed an offence against or arising under an Australian law or a law of a foreign country; or

              (ii)     are liable to a civil penalty.

        (c)     You must—

              (i)     disclose so much of the information required to be disclosed to which no objection is taken; and

              (ii)     prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

              (iii)     file and serve on each other party a separate affidavit setting out the basis of the objection.

INSPECTION

22.     Prior to the return date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to—

        (a)     make copies of the same; and

        (b)     provide the independent solicitor with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.

PROVISION OF INFORMATION

23.     Subject to paragraph 24 below you must—

        (a)     at or before the further hearing on the return date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to—

              (i)     the location of the listed things;

              (ii)     the name and address of everyone who has supplied you, or offered to supply you, with any listed thing;

              (iii)     the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and

              (iv)     details of the dates and quantities of every such supply and offer; and

        (b)     within [ ] working days after being served with this order, swear and serve on the applicant an affidavit setting out the above information.

24.         (a)     This paragraph 24 applies if you are not a corporation and you wish to object to complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you—

              (i)     have committed an offence against or arising under an Australian law or a law of a foreign country; or

              (ii)     are liable to a civil penalty.

        (b)     This paragraph 24 also applies if you are a corporation and all persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—

              (i)     have committed an offence against or arising under an Australian law or a law of a foreign country; or

              (ii)     are liable to a civil penalty.

        (c)     You must—

              (i)     disclose so much of the information required to be disclosed to which no objection is taken; and

              (ii)     prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and

              (iii)     file and serve on each other party a separate affidavit setting out the basis of the objection.

PROHIBITED ACTS

25.     Except for the sole purpose of obtaining legal advice, you must not, until 4.30 p.m. on the return date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant.

26.     Until 4.30 p.m. on the return date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court.

COSTS

27.     The costs of this application are reserved.

SCHEDULE A

Premises

The premises located at [ insert address or addresses ] including any vehicle or vessel or vehicles or vessels under the respondent's control on or about those premises.

Listed Things

1.

2.

3.

Search Party

1.     The independent solicitor: [ insert name and address ]

2.     The applicant's solicitor or solicitors:

        (a)     [ insert name and address ] [or description e.g. a partner or employed solicitor] of [ name of firm ];

        (b)     [ insert name and address ] [or description e.g. a partner or employed solicitor] of [ name of firm ];

        (c)     [ insert name and address ] [or description e.g. a partner or employed solicitor] of [ name of firm ].

3.     Other members of the search party:

        (a)     [ insert name and address ] in the capacity of [ e.g. an independent computer expert ];

        (b)     [ insert name and address ] in the capacity of [ insert capacity ].

SCHEDULE B

UNDERTAKINGS GIVEN TO THE COURT

Undertakings given to the Court by the applicant:

(1)     The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.

(2)     The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.

(3)     The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4.30 p.m. on the return date.

(4)     If the applicant has not already done so, as soon as practicable the applicant will file a copy of this order and [ describe documents required to be filed ].

[(5)     The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.] 2

[(6)     The applicant will 3

        (a)     on or before [ insert date ] cause a written irrevocable undertaking to pay in the sum of $[ insert amount ] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages referred to in undertaking (1) above; and

        (b)     immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent.]

Undertakings given to the Court by the applicant's solicitor:

(1)     The applicant's solicitor will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert.

(2)     The applicant's solicitor will provide to the independent solicitor for service on the respondent copies of this order and the documents which are listed in Schedule C.

(3)     The applicant's solicitor will answer at once to the best of his or her ability any question as to whether a particular thing is a listed thing.

(4)     The applicant's solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.

(5)     The applicant's solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.

(6)     The applicant's solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4.30 p.m. on the return date.

(7)     The applicant's solicitor will not disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order, without leave of the Court.

(8)     The applicant's solicitor will use his or her best endeavours to follow all directions of the independent solicitor.

Undertakings given to the Court by the independent solicitor:

(1)     The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking (2) of the above undertakings by the applicant's solicitor or solicitors.

(2)     Before entering the premises, the independent solicitor will—

        (a)     offer to explain the terms of the search order to the person served with the order and, if the offer is accepted, do so;

        (b)     inform the respondent of his or her right to take legal advice.

(3)     Subject to undertaking (4) below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court.

(4)     At or before the hearing on the return date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant's solicitors and to the respondent or the respondent's solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert.

(5)     The independent solicitor will use his or her best endeavours—

        (a)     to ensure that members of the search party act in conformity with the order; and

        (b)     to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent; and

        (c)     to give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order.

(6)     The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.

(7)     The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4.30 p.m. on the return date.

Undertakings given to the Court by the independent computer expert:

(1)     The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.

(2)     The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.

(3)     The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4.30 p.m. on the return date.

(4)     The independent computer expert will use his or her best endeavours to follow all directions of the independent solicitor.



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