Commonwealth Consolidated Acts

SERVICE AND EXECUTION OF PROCESS ACT 1992 - SECT 72

  (1)   Subject to subsection   ( 2), a court may, on the application of the custodian or the prisoner, set aside or vary the order for production.

  (2)   The prisoner may only make an application on the ground that compliance with the order would have a substantial detrimental effect on his or her health or safety.

  (3)   The application must be made to a court that could have made the order.

  (4)   Without limiting the ways in which, under the law of the place of issue, the application may be made, it may be made by transmitting the application to the court by fax.

  (5)   Within 24 hours after making the application, the applicant must cause copies of the application to be served:

  (a)   on the person (if any) at whose request the subpoena was issued at the person's address for service; and

  (b)   if the applicant is the custodian--on the prisoner; and

  (c)   if the applicant is the prisoner--on the custodian.

  (6)   For the purposes of calculating the 24 hour period, a day that is:

  (a)   a Saturday; or

  (b)   a Sunday; or

  (c)   a public holiday or bank holiday in the place in which the application is to be served;

does not count.

  (7)   Without limiting the ways in which, under the law of the place of issue, service on the person under paragraph   ( 5)(a) may be effected, it may be effected by transmitting the copy to that address by fax.

  (8)   Without limiting the matters that the court may take into account in determining the application, the court is to take into account:

  (a)   public safety; and

  (b)   the prisoner's health and safety.

  (9)   The court may determine the application without a hearing unless the custodian, the prisoner, or the person (if any) at whose request the subpoena was issued, objects.

  (10)   For the purposes of determining the application, the court may hold a hearing by audio link or audiovisual link .

  (11)   A person who is entitled to practise as a barrister, solicitor or both before a court in:

  (a)   the place of issue of the subpoena; or

  (b)   another State in which a person is participating in the hearing by audio link or audiovisual link ;

has a right of audience before the court at the hearing.

  (12)   If the court sets aside or varies the order for production, it is to make any necessary consequential order in respect of the subpoena.

  (13)   In this section:

"court" has the same meaning as in section   67.