This note is not part of the rules, but is intended to indicate their general effect.
These rules amend the High Court Rules by inserting a number of new rules and forms relating to the service of subpoenas on witnesses in Australia and the giving of evidence and the hearing of submissions from Australia by video link and telephone conference. The Evidence Amendment Act 1994 provides for the service of subpoenas issued by New Zealand courts on witnesses in Australia and for evidence to be given and submissions made from Australia in proceedings in New Zealand courts by video link and telephone conference.
Rule 1 provides that the rules come into force on 1 April 1995. The Evidence Amendment Act 1994 also comes into force on that date.
Rule 2 inserts a new subclause (7A) into rule 66 of the High Court Rules. Rule 66 relates to the searching of Court records. The new subclause (7A) prohibits the searching, inspection, or copying of a file or any document on a file relating to an application under rule 446U or the new rule 502C without the leave of a Judge. Rule 446U relates to the issue of subpoenas for service in Australia in certain proceedings in the High Court under the Commerce Act 1986. The new rule 502C is inserted by rule 5 of these rules and relates to applications for leave to serve in Australia subpoenas issued in proceedings (other than criminal and family proceedings) in the High Court and other New Zealand courts.
Rule 3 amends rule 446U of the High Court Rules so as to require applications under the rule to be by way of originating application.
Rule 4 amends rule 458D(1) of the High Court Rules by adding applications under rule 446U and the new rule 502C to the list of proceedings that may be commenced by way of originating application.
Rule 5 inserts new rules 502A to 502J into the High Court Rules
The new rule 502 relates to matters of interpretation.
The new rule 502B prescribes the form of subpoenas that may be issued by the High Court for service on witnesses in Australia and provides for the issue of such subpoenas in the same manner as subpoenas may be issued under rule 497
The new rule 502C relates to applications to the High Court for leave to serve a subpoena issued by a New Zealand court on a witness in Australia. Section 5 of the Evidence Amendment Act 1994 provides that a subpoena issued by a New Zealand court may, with leave of a Judge of the High Court, be served in Australia.
The new rule requires an application for leave to serve a subpoena to be made ex parte and to be made by way of originating application.
The new rule requires every application to be accompanied by an affidavit and specifies the matters that must be contained in the affidavit.
The new rule 502D prescribes the form of statement that must, in accordance with section 7(2)(b) of the Evidence Amendment Act 1994, be served on a witness in Australia with a subpoena.
The new rule 502E prescribes the procedure for the making of an application to set aside a subpoena issued by a New Zealand court. Section 11 of the Evidence Amendment Act 1994 gives the High Court jurisdiction to set aside such subpoenas. The new rule authorises an application to be made by an Australian solicitor and to be made by facsimile.
The new rule 502F relates to the service of documents on persons applying to have a subpoena set aside and provides for service by facsimile.
The new rule 502G relates to the hearing of an application to set aside a subpoena issued by a New Zealand court. If neither party requires a hearing, the High Court may determine the application without a hearing. The Court may hold a hearing by video link or telephone conference and is required to do so if the applicant requests the Court to direct that it be held by video link or telephone conference.
The new rule 502H prescribes the form of certificate under section 12 of the Evidence Amendment Act 1994 to be issued by the High Court in the event of failure by a witness to comply with a subpoena issued by the Court and served in Australia. Section 12 of the Evidence Amendment Act 1994 provides that if a witness fails to comply with a New Zealand subpoena, the court that issued the subpoena may issue a certificate stating that a Judge of the High Court has given leave to serve the subpoena and that the witness has failed to comply with it. By virtue of section 21 of the Evidence and Procedure (New Zealand) Act 1994, failure to comply with a subpoena issued by a New Zealand court and served on a witness in Australia constitutes contempt of the Federal Court of Australia and is punishable accordingly.
The new rule 502I relates to the sending of documents or things that have been produced at a registry of the High Court in compliance with a subpoena issued by an Australian court to the Australian court that issued the subpoena. In such a case, the Registrar must—
The new rule 502J relates to giving evidence and making submissions by video link or telephone conference from Australia in proceedings before the High Court. Section 19 of the Evidence Amendment Act 1994 provides that a New Zealand court may direct that evidence be given or submissions be made in proceedings before the court by video link or telephone conference from Australia if it is satisfied as to the necessary facilities and that the evidence or submissions could more conveniently be given from Australia. The new rule provides that such an application must be made ex parte and be accompanied by an affidavit and specifies the matters with which the affidavit is required to deal.
Rule 6 inserts a number of new forms into Schedule 1 to the High Court Rules.