Part 32 Evidence and Procedure (New Zealand) Act 1994 (Commonwealth)
(cf SCR Part 36A, rule 1)
(1) In this Part:another court means an inferior court.
the Commonwealth Act means the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth.
(2) Expressions used in this Part have the same meanings as they have in the Commonwealth Act.
(cf SCR Part 36A, rule 3)
(1) Application for leave under the Commonwealth Act to serve a subpoena in New Zealand must be made:(a) if the subpoena is issued in proceedings in the Supreme Court, by motion in the proceedings, or(b) in any other case, by summons in the Common Law Division joining as defendant the person to whom the subpoena is addressed.(2) The application must be supported by an affidavit annexing a copy of the subpoena and setting out the following:(a) the name, designation or occupation, and address of the person named and whether that person is over 18 years of age,(b) the nature and significance of the evidence to be required from the person named, or of the document or thing required to be produced by that person,(c) details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience, to the person named,(d) the date by which it is intended to serve the subpoena,(e) details of:(i) the calculation of the sum sufficient to meet reasonable expenses in complying with the subpoena, and(ii) how and when those expenses are to be paid, or tendered, to that person in money or in vouchers,(f) if the subpoena requires the person named to give evidence, an estimate of the time that person will be required to attend to give evidence,(g) details of any facts or matters known to the deponent which may provide cause for the subpoena to be set aside under section 14 (2) and (3) of the Commonwealth Act.(3) Unless the Supreme Court orders otherwise, the applicant for leave may proceed without serving the summons or notice of motion on any person.(4) Before granting leave under the Commonwealth Act to serve a subpoena, the Supreme Court may require the applicant for leave to undertake to meet the expenses or loss reasonably incurred by the person named, not being a party to the proceedings, in complying with the subpoena, if those expenses or loss exceed the allowances and travelling expenses to be provided to that person at the time of service of the subpoena.
32.3 Production of document or thing under subpoena
(cf SCR Part 36A, rule 4)
If the court receives a fax under section 17 of the Evidence Amendment Act 1994 of New Zealand, the registrar may confirm with the registry that issued the receipt in New Zealand that the document or thing produced is able to be transported to the Supreme Court as soon as practicable so that the document or thing may be produced in the Supreme Court on the date the person named in the subpoena was to have attended.
32.4 Failure to comply with subpoena issued by the Supreme Court
(cf SCR Part 36A, rule 5)
(1) A person may apply to the Supreme Court for a certificate under section 16 of the Commonwealth Act by filing a notice of motion together with:(a) an affidavit of service of the subpoena and order and notice referred to in section 10 (3) of the Commonwealth Act, and(b) an affidavit stating:(i) particulars of the order granting leave to serve the subpoena, and(ii) whether application was made to set aside the subpoena and, if so, particulars of the application and of its outcome, and(iii) that the subpoena was not complied with, and(c) a draft certificate.(2) Despite subrule (1), application for a certificate may be made orally if the proceedings in which the certificate is sought are then before the Supreme Court.(3) Unless the Supreme Court orders otherwise, the applicant need not serve notice of motion for the issue of the certificate.(4) An application under subrule (1) may be determined or dealt with by the Supreme Court in the absence of the public and without any attendance by or on behalf of any person.
(cf SCR Part 36A, rule 6)
(1) A person may apply to the Supreme Court to set aside a subpoena under section 13 of the Commonwealth Act by filing a notice of motion together with an affidavit setting out the facts and grounds on which the application is based.(2) The notice of motion must be filed at, or faxed for filing to, the Sydney registry of the Supreme Court.(3) If the Supreme Court receives a notice of motion by post or fax, it must acknowledge receipt and advise the applicant whether or not the notice of motion has been accepted for filing and, if it has not been accepted, the reasons for its rejection.(4) The registrar must serve the notice of motion and affidavit on the party who obtained leave to serve the subpoena, and may do so by faxing them to that party’s fax number.(5) An application under this rule is to be determined in such manner as the Supreme Court may direct.
32.6 Evidence by video-link or telephone
(cf SCR Part 36A, rule 7)
(1) A person may apply to the Supreme Court for a direction under section 25 of the Commonwealth Act (being a direction that evidence be taken, or submissions made, by video-link or telephone from New Zealand) by filing a notice of motion together with an affidavit stating the following:(a) the reasons why such a procedure is desirable,(b) the nature of the evidence to be taken,(c) the number of witnesses to be examined,(d) the expected duration of the evidence,(e) whether issues of character are likely to be raised,(f) in the case of submissions, the expected duration of the submissions,(g) the facilities available for such a procedure or that can reasonably be made available,(h) that the requirements of section 26 or 27 of the Commonwealth Act are able to be met.(2) In deciding whether to grant the application, the Supreme Court may take account of the matters set out in the applicant’s affidavit in addition to any other matters considered to be material, including cost and convenience to the witness and all parties.(3) If the Supreme Court makes a direction under section 25 (1) of the Commonwealth Act that evidence be taken, or submissions made, by video-link or telephone from New Zealand, it may direct the registrar to arrange and co-ordinate the appropriate facilities in Australia and New Zealand.(4) Without limiting the generality of subrule (3), the Supreme Court may direct:(a) that the registrar arrange for the evidence to be given, or the submissions to be made, at the High Court of New Zealand or at another place approved by that court, and(b) that an officer of the High Court of New Zealand, or another person approved by the Supreme Court, be requested to be present to assist in the transmission of the evidence or submissions and, in particular, to:(i) introduce witnesses to be called and legal representatives, and(ii) assist with the administration of oaths, if necessary, and(iii) assist with the implementation of any directions or requests given or made by the judicial officer or other officer hearing the evidence or submissions.
(cf SCR Part 36A, rule 8)
(1) Part 6 of the Commonwealth Act is taken to apply to a fax of a document in the same way as it applies to the original of the document (whether or not that original is itself a copy or an extract of a document).(2) If a fax of a document is adduced in evidence under Part 6 of the Commonwealth Act, the party adducing that evidence must file in the registry a copy of the fax.