Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered Regulationsin part 1, after order 1, insert
Order 1AA Subpoenas
1 Definitions for o 1AA
(1) In this order:
"addressee", for a subpoena, means the person who is the subject of the order expressed in the subpoena.
"conduct money", for a subpoena, means an amount of money or its equivalent sufficient to meet the reasonable expenses of the addressee of attending as required by the subpoena and returning after attending.
Example of equivalent of money
prepaid travel
Note An example is part of the rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
"issuing officer" means an officer empowered to issue a subpoena on behalf of the court.
"issuing party", for a subpoena, means the party at whose request the subpoena is issued.
"subpoena" means an order in writing requiring the addressee—
(a) to attend to give evidence; or
(b) to produce the subpoena or a copy of it and a document or thing; or
(c) to do both of those things.
(2) To the extent that a subpoena requires the addressee to attend to give evidence, it is called a subpoena to attend to give evidence .
(3) To the extent that a subpoena requires the addressee to produce the subpoena or a copy of it and a document or thing, it is called a subpoena to produce .
2 Issuing subpoena
(1) In any proceeding, the court may by subpoena order the addressee—
(a) to attend to give evidence as directed by the subpoena; or
(b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or
(c) to do both of those things.
(2) An issuing officer must not issue a subpoena—
(a) without the court's leave if it appears to the issuing officer that the subpoena—
(i) is not substantially complete; or
(ii) does not substantially comply in form with these rules; or
Note The registrar may refuse to accept a subpoena for filing under o 66 r 10B (Refusal to accept documents—abuse of process etc). That rule is applied to criminal proceedings by o 80 r 3 (Application of civil rules to criminal proceedings).
(b) if the court has made an order, or there is a rule of court, having the effect of requiring that the proposed subpoena—
(i) not be issued; or
(ii) not be issued without the court's leave and that leave has not been given; or
(c) requiring the production of a document or thing in the custody of the court or another court.
(3) The issuing officer must seal with the seal of the court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service.
(4) A subpoena is taken to be issued on its being sealed or otherwise authenticated under subrule (3).
3 Form of subpoena
(1) A subpoena must be in accordance with form 1.1A.
(2) A subpoena must not be addressed to more than 1 person.
(3) Unless the court otherwise orders, a subpoena must identify the addressee by name or by description of position.
Note The Legislation Act, dict, pt 1 defines position to include office.
(4) A subpoena to attend to give evidence must specify the date, time and place for attendance.
(5) A subpoena to produce must—
(a) identify the document or thing to be produced; and
(b) specify the date, time and place for production.
(6) The date specified in a subpoena must be the date of trial or any other date permitted by the court.
(7) The place specified for production may be the court or the address of anyone authorised to take evidence in the proceeding.
(8) A subpoena must specify the last date for service of the subpoena.
(9) The last date for service must be—
(a) 5 clear days before the date specified in the subpoena for compliance with it; or
(b) if the court orders a different date—the date ordered.
(10) If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.
4 Setting aside subpoena or other relief
(1) The court may, on the application of a party or someone else having a sufficient interest, set aside a subpoena completely or partly, or grant other relief in relation to it.
(2) An application under subrule (1) must be made by motion on notice under order 54 (Motions) to the issuing party.
(3) The court may order that the applicant give notice of the application to any other party or anyone else who has a sufficient interest.
5 Service of subpoena
(1) Unless the court otherwise orders, a subpoena must be served personally on the addressee.
(2) The issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee.
6 Compliance with subpoena
(1) An addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the date when attendance is required.
(2) An addressee need not comply with the requirements of a subpoena unless it is served on or before the date specified in the subpoena as the last date for service of the subpoena.
(3) Despite rule 5 (1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on the addressee (or, if the court orders service in another way, it has not been served in that way) if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and its requirements.
(4) The addressee must comply with a subpoena to produce—
(a) by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the court or to the person authorised to take evidence in the proceeding; or
(b) by delivering or sending the subpoena or a copy of it and the document or thing to the registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production.
(5) For a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and the document or thing in any of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence.
7 Production of subpoenaed document etc otherwise than on attendance
(1) This rule applies if an addressee produces a document or thing under rule 6 (4) (b).
(2) The registrar must, if asked by the addressee, give a receipt for the document or thing to the addressee.
(3) If the addressee produces more than 1 document or thing, the addressee must, if asked by the registrar, provide a list of the documents or things produced.
(4) The addressee may, with the consent of the issuing party, produce a copy, instead of the original, of any document required to be produced.
(5) The addressee may, in the subpoena or at the time of production, inform the registrar in writing that any document or copy of a document produced need not be returned and may be destroyed.
8 Removal, return, inspection etc of subpoenaed documents and things
The court may give directions in relation to the removal from and return to the court, and the inspection, copying and disposal, of any document or thing that has been produced to the court in response to a subpoena.
9 Inspection of, and dealing with, subpoenaed documents and things produced otherwise than on attendance
(1) This rule applies if an addressee produces a document or thing under rule 6 (4) (b).
(2) On the request of a party, the registrar must tell the party whether production in response to a subpoena has happened and, if so, include a description, in general terms, of the documents and things produced.
(3) The request mentioned in subrule (2) must be made orally on the return date for the subpoena or in writing after the return date.
(4) Subject to this rule, no-one may inspect a document or thing produced unless the court has given leave and the inspection is in accordance with that leave.
(5) Unless the court otherwise orders, the registrar may permit the parties to inspect at the registry any document or thing produced unless the addressee, a party or someone else having sufficient interest objects to the inspection under this rule.
(6) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must tell the court about the objection and the grounds of the objection.
(7) The objection mentioned in subrule (6) must be made orally to the court on the return date for the subpoena or in writing to the court before or after the return date.
(8) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may tell the court on the return date for the subpoena or in writing about the objection and the grounds of the objection.
(9) If the court receives an objection under this rule, the registrar—
(a) must not permit any, or any further, inspection of the document or thing the subject of the objection; and
(b) must refer the objection to the court for hearing and decision.
Note The registrar may hear and decide the objection in some circumstances (see o 61 r 3AA (Jurisdiction of registrar—subpoenas)).
(10) The registrar must notify the issuing party in writing about—
(a) the objection; and
(b) the date, time and place the objection will be heard.
(11) The issuing party must, a reasonable time before the date the objection will be heard, notify the addressee, the objector and each other party about—
(a) the objection; and
(b) the date, time and place the objection will be heard.
Note See o 39A r 8 (Power to allow removal of documents and things) for the procedure for the removal of documents and things from the registry.
10 Disposal of subpoenaed documents and things produced
(1) This rule applies in relation to a proceeding before the end of the hearing of the proceeding.
Note See o 39A r 6 (Return of subpoena document or thing) for the return of documents or things produced on subpoena at the end of the hearing of a proceeding.
(2) Unless the court otherwise orders, the registrar may return to the addressee any document or thing produced in the proceeding in response to the subpoena.
(3) Unless the court otherwise orders, the registrar must not return any document or thing under subrule (2) unless the registrar has given the issuing party at least 14 days notice of the intention to do so and that period has ended.
(4) If the addressee has told the court that a document or copy of a document produced need not be returned and may be destroyed, the registrar may, unless the court otherwise orders, destroy the document or copy instead of returning it.
(5) The registrar must not destroy a document or copy of a document unless the registrar has first given the issuing party and the addressee at least 14 days notice of the intention to destroy the document or copy.
11 Costs and expenses of compliance with subpoena
(1) This rule applies if the addressee for a subpoena in a proceeding is not a party to the proceeding.
(2) The court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
(3) If an order is made under subrule (2), the court must fix the amount or direct that it be fixed according to the court's usual procedure in relation to costs.
(4) An amount fixed under this rule is separate from and in addition to—
(a) any conduct money paid to the addressee; and
(b) any witness expenses payable to the addressee; and
(c) any amount that the addressee is entitled to under order 65 rule 7 (Scale of costs) and schedule 3 (Costs).
12 Failure to comply with subpoena—contempt of court
(1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly.
(2) Despite rule 5 (1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been personally served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.
(3) Subrules (1) and (2) are without prejudice to any power of the court (including the power to issue a warrant for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.
13 Documents and things in custody of court
(1) A party who seeks production of a document or thing in the custody of the court or another court may notify the registrar in writing accordingly, identifying the document or thing.
(2) If the document or thing is in the custody of the court, the registrar must produce the document or thing—
(a) in court or to anyone authorised to take evidence in the proceeding, as required by the party; or
(b) as the court directs.
(3) If the document or thing is in the custody of another court, the registrar must, unless the court has otherwise ordered—
(a) ask the other court to send the document or thing to the registrar; and
(b) after receiving it, produce the document or thing—
(i) in court or to anyone authorised to take evidence in the proceeding, as required by the party; or
(ii) as the court directs.
(4) Subrules (2) and (3) do not apply if order 66 rule 10B (Refusal to accept documents—abuse of process etc) applies.
Note Order 66 r 10B is applied to criminal proceedings by o 80 r 3 (Application of civil rules to criminal proceedings).
14 Banker's books
(1) This rule applies if—
(a) the addressee for a subpoena in a proceeding is an officer of a bank; and
(b) the bank is not a party to the proceeding; and
(c) the subpoena requires the addressee to produce a banker's book; and
(d) the contents of the banker's book can be proved under legislation in force in the ACT in a way other than the production of the book.
(2) Unless the court otherwise orders, the subpoena allows the addressee to produce proof of the relevant entries in accordance with that legislation, instead of producing the banker's book.
15 Application of o 1AA—subpoena under Commercial Arbitration Act
(1) This order applies in relation to a subpoena issued under the Arbitration Act for an arbitration as if—
(a) a reference to a subpoena were a reference to a subpoena issued under the Arbitration Act; and
(b) a reference to a proceeding were a reference to the arbitration; and
(c) a reference to the registrar in rule 6 (4) (b), rule 7, rule 9 and rule 10 were a reference to the arbitrator or umpire for the arbitration; and
(d) a reference to the court in rule 8, rule 9, rule 10 and rule 11 were a reference to the arbitrator or umpire for the arbitration; and
(e) any other necessary changes were made.
(2) In this rule:
"Arbitration Act" means the Commercial Arbitration Act 1986 .
"arbitrator", for a subpoena, means the arbitrator for the arbitration in relation to which the subpoena was issued.
"umpire", for a subpoena, means the umpire for the arbitration in relation to which the subpoena was issued.
Note The court has wide powers to issue subpoenas under the Arbitration Act (see s 17).