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FEDERAL COURT AMENDMENT RULES 2003 (NO. 4) 2003 NO. 377
Issued by the authority of the Judges of the Federal Court of Australia
Federal Court Amendment Rules 2003 (No. 4)
Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and in Registries of the Court. They may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.
Under sub-section 59 (4) of the Federal Court of Australia Act 1976, sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 which relate to the making of regulations, apply to these Rules of Court as if references to the regulations in those sections were references to Rules of Court.
The present Federal Court Rules came into operation on 1 August 1979. They are reviewed regularly.
RULE 1 - Name of rules
This rule provides that the rules are the Federal Court Amendment Rules 2003 (No. 4).
RULE 2 - Commencement
This rule provides that these rules commence on 1 March 2004.
RULE 3 - Amendment of Federal Court Rules
This rule provides that the Federal Court Rules are amended as set out in Schedule 1.
SCHEDULE 1
[1] Order 27
This amendment replaces Order 27 with a new Order 27. The new Order 27 gives effect to the harmonised subpoena rules developed by the Council of Chief Justices' Rules Harmonisation Committee. The amendment also includes a new Order 27A that deals with leave to issue subpoenas. The new Order 27 and Order 27A consist of the following rules.
Order 27 Subpoenas
Rule 1 Definitions
This rule contains the definitions of "addressee", "conduct money", "issuing officer", "issuing party" and "subpoena" that apply, unless the contrary intention appears, in Order 27.
Rule 2 Issuing of subpoena
This rule provides for the manner in which a subpoena is to be issued.
Subrule (1) provides that the Court may issue a subpoena requiring the addressee to attend Court to give evidence or to produce any document or thing or to do both of these things.
Subrule (2) sets out the circumstances in which an issuing officer must not issue a subpoena. Paragraph 2 (a) provides that the subpoena must not be issued if the Court has made an order, or there is a rule of the Court, having the effect of requiring that the proposed subpoena:
• not be issued; or
• not be issued without the leave of the Court and that leave has not been given.
Paragraph 2 (b) provides that the subpoena must not be issued if it requires the production of a document or thing in the custody of the Court or another court.
The note after paragraph (2) (a) refers to the leave requirement prescribed by the new Order 27A.
Subrule (3) provides that an 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.
Subrule (4) provides that a subpoena is taken to have been issued on its being sealed or otherwise authenticated in accordance with subrule (3).
Rule 3 Form of subpoena
Subrule (1) provides that a subpoena must be in accordance with Form 41.
Subrule (2) provides that a subpoena must not be addressed to more than one person.
Subrule (3) provides that, unless the Court otherwise orders, a subpoena must identify the addressee by name or by description of office or position.
Subrule (4) provides that a subpoena to produce must identify the document or thing to be produced and specify the date, time and place for production.
Subrule (5) provides that a subpoena to attend to give evidence must specify the date, time and place for attendance.
Under subrule (6), the date specified in a subpoena must be the date of trial or any other date as permitted by the Court.
Under subrule (7), the place specified for production may be the Court or the address of any person authorised to take evidence in the proceeding as permitted by the Court.
Subrule (8) provides that a subpoena must specify the last date for service of the subpoena. The last date for service must be a date not earlier than 5 days, or any shorter or longer period as ordered by the Court, before the date specified in the subpoena for compliance with it.
Subrule (9) provides that if the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.
Rule 4 Setting aside or other relief
This rule provides that the Court may set aside a subpoena in whole or in part, or grant other relief in respect of it. Such an order may be made on the application of a party or any person having a sufficient interest, and the application must be on notice to the issuing party.
Rule 5 Service
Subrule (1) provides that a subpoena must be served personally on the addressee.
Subrule (2) provides that 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.
Rule 6 Compliance with subpoena
This rule sets out the requirements for compliance with a subpoena.
Subrule (1) provides that an addressee need not comply with a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required.
Subrule (2) provides that 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.
Subrule (3) makes it clear that, despite subrule (1), an addressee must comply with a subpoena even if it has not been served personally, if the addressee has actual knowledge of the subpoena and its requirements by the last date for service of the subpoena.
The alternative methods of compliance with a subpoena to produce are contained in subrule (4). An addressee must either:
• attend at the specified date, time and place and produce 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 as permitted by the Court, in accordance with paragraph 4 (a); or
• deliver or send the subpoena or a copy of it and the document or thing to the Registrar at the specified address so that they are received not less than 2 clear days before the date specified in the subpoena, in accordance with paragraph 4 (b).
Subrule (5) makes it clear that in the case of 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 of the document or thing in either of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence.
Rule 7 Production otherwise than upon attendance
Subrule (1) provides that this rule applies where an addressee complies with a subpoena to produce by delivering or sending the document or thing to the Registrar in accordance with paragraph 6 (4) (b).
Subrule (2) provides that the Registrar must, if requested by the addressee, give a receipt for the document or thing to the addressee.
Subrule (3) provides that if the addressee produces more than one document or thing, the addressee must provide a list of the documents or things produced, if requested to do so by the Registrar.
Subrule (4) provides that where the issuing party consents, the addressee may produce a copy, instead of the original, of any document required to be produced.
Subrule (5) provides that the addressee may inform the Registrar in writing at the time of production that any documents produced may be destroyed rather than returned to the addressee.
Rule 8 Removal, return, inspection, copying and disposal of documents and things
Under this rule, 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.
Rule 9 Inspection of, and dealing with, documents and things produced otherwise than on attendance
Subrule (1) provides that this rule applies where an addressee complies with a subpoena to produce by delivering or sending the document or thing to the Registrar in accordance with paragraph 6(4)(b).
Subrule (2) provides that, on receipt of a written request from a party, the Registrar must inform the party whether production in response to a subpoena has occurred and, if so, include a description, in general terms, of the documents and things produced.
Subrule (3) provides that, subject to this rule, no person may inspect a document or thing produced unless the Court has granted them leave to do so, and the inspection is in accordance with that leave.
Subrule (4) provides that, unless the Court otherwise orders, the Registrar may permit the parties to inspect any document or thing produced at the Registry unless the addressee, a party or any person having sufficient interest objects to the inspection.
Subrule (5) provides that an addressee who objects to a document or thing being inspected by any party to the proceeding must notify the Registrar in writing of the objection and the grounds of the objection, at the time of production.
Subrule (6) provides that a party or person having a sufficient interest who objects to a document or thing being inspected by any party to the proceeding may notify the Registrar in writing of the objection and the grounds of the objection.
Subrule (7) provides that, on receiving notice of an objection, the Registrar must not permit any, or any further, inspection of the document or thing the subject of the objection. The Registrar must then refer the objection to the Court for hearing and determination.
Subrule (8) provides that the Registrar must notify the issuing party of the objection and the date, time and place at which the objection will be heard. The issuing party must then notify the addressee, the objector and each other party accordingly.
Subrule (9) provides that the Registrar must not permit any document or thing produced to be removed from the Registry except on written application by the solicitor for a party.
Under subrule (10), a solicitor who signs an application under subrule (9) and removes a document or thing from the Registry, undertakes to the Court that:
(a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and
(b) that the document or thing will be returned to the Registry in the same condition in which it was removed, as and when directed by the Registrar.
Subrule (11) provides that the Registrar has a discretion to grant an application under subrule (9) subject to conditions or refuse to grant the application.
Rule 10 Disposal of documents and things produced
Under subrule (1), the Registrar may return any document or thing produced in response to the subpoena to the addressee, unless the Court otherwise orders. However, subrule (2) provides that the Registrar must not return the document or thing until at least 14 days after giving the issuing party notice of the intention to do so.
Subrule (3) provides that, if the addressee has informed the Court that a document or a copy of a document produced may be destroyed, the Registrar may, unless the Court otherwise orders, destroy the document or copy instead of returning it. However, subrule (4) provides that the Registrar must first give the issuing party and the addressee at least 14 days' notice of the intention to do so.
Rule 11 Costs and expenses of compliance
Subrule (1) provides that the Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
Where an order is made under subrule (1), subrule (2) provides that the Court must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs.
Subrule (3) makes it clear that an amount fixed under this rule is separate from and in addition to any conduct money paid to the addressee and any witness expenses payable to the addressee.
Rule 12 Failure to comply with subpoena -- contempt of court
Subrule (1) provides that failure to comply with a subpoena without lawful excuse is a contempt of court and that the addressee may be dealt with accordingly.
Subrule (2) provides that, despite subrule 5 (1) (which provides that a subpoena must be served personally on the addressee), an addressee who has not been personally served with a subpoena may nevertheless be dealt with for contempt of court if it is proved that the addressee had actual knowledge of the subpoena and of its requirements by the last date for service of the subpoena.
Subrule (3) provides that subrules (1) and (2) are 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.
Rule 13 Documents and things in the custody of a court
Under subrule (1), a party seeking production of a document or thing in the custody of the Court or of another court may inform the Registrar in writing accordingly, identifying the document or thing.
Subrule (2) provides that, if the document or thing is in the custody of the Court, the Registrar must produce the document or thing in Court or to any person authorised to take evidence in the proceeding, as required by the party or as the Court otherwise directs.
Subrule (3) provides that if the document or thing is in the custody of another court, the Registrar must, unless the Court has otherwise ordered, request the other court to send the document or thing to the Registrar. After receiving it, the Registrar must produce the document or thing in Court or to any person authorised to take evidence in the proceeding as required by the party or as the Court otherwise directs.
Order 27A Leave to issue subpoena
Rule 1 Application
This rule provides that Order 27A applies to a subpoena that is to be issued under Order 27.
Rule 2 Leave to issue subpoena
Subrule (1) provides that a subpoena must not be issued without the leave of the Court or a Judge.
Paragraph (2) (a) provides that the Court or a Judge may give leave to issue a subpoena generally or in relation to a particular subpoena or subpoenas. The leave given may be made subject to conditions pursuant to paragraph (2) (b).
Paragraph (3) (a) provides that an application for leave to issue a subpoena may be made by a party to the proceeding without notice to the addressee or any party to the proceeding. An application made under paragraph (3) (a) may be decided by the Court or a Judge in the absence of the addressee or any party to the proceeding.
Subrule (4) provides that the Registrar at the proper place must, on request of request of a party, issue a subpoena in accordance with the leave given under subrule (2).
If the Registrar considers that the request for the issue of a subpoena may be an abuse of process, frivolous or vexatious, the Registrar may refer the request to a Judge for directions under subrule (5).
[2] Schedule 1, Forms 41, 42 and 43
Under the old Order 27 there were three prescribed forms of subpoena: a subpoena for production (Form 41), a subpoena to give evidence (Form 42) and a subpoena for production and to give evidence (Form 43).
The amendment replaces Forms 41, 42 and 43 with a new Form 41.
The new Form 41 is the new prescribed form of subpoena. It allows the issuing party to indicate whether the addressee is required to attend to give evidence, produce a document or thing, or do both of these things. The option selected determines which sections of the form need to be completed by the issuing party.