Commonwealth Numbered Regulations - Explanatory Statements

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FEDERAL COURT RULES (AMENDMENT) 1995 NO. 46

Statutory Rules 1995 No. 46

AMENDMENT TO THE RULES OF THE FEDERAL COURT OF AUSTRALIA

The Judges of the Court (of whom there are forty-two (42), including the Chief Justice) or a majority of them, make Rules of Court providing for the practice and procedure to be followed in the Court and in Registries of the Court By sub-section 39(4) of the Federal Court of Australia Act 1976, Rules of Court made under that section are subject to sections 48, 48A, 48B, 49 and 50 of the Act Acts Interpretation Act 1901 which relate to the making of regulations, as if references to the regulations in those sections were references to Rules of Court. The present Federal Court Rules came into operation an 1 August 1979. They we reviewed regularly.

Rule 1

This rule provides that the commencement date for these amendments is 1 April 1995, to coincide with the commencement of the Evidence and Procedure (New Zealand) Act 1994.

Rule 2

This rule provides that the Federal Court Rules are amended as set out in these rules.

Rule 3

This rule amends Order 27 of the Federal Court Rules by adding sub-rule 4(2B), which provides that a Federal Court subpoena to be served in New Zealand under the Evidence and Procedure (New Zealand) Act 1994 must permit the production of a document or thing to a registry of the High Court of New Zealand, 10 days before the return date an the subpoena.

Rule 4

This rule amends Order 27 rule 6 of the Federal Court Rules to introduce new forms of subpoena to be used under the provisions of the Evidence and Procedure (New Zealand) Act 1994, Forms 66A, 68A and 69A are introduced.

Rule 5

Order 69A of the Federal Court Rules it introduced by this rule. The Court is making rules to address practice and procedure under the Evidence and Procedure (New Zealand) Act 1994. This Act governs a scheme for the, service of subpoenas in Australia and New Zealand and covers videoconferencing in Australian and New Zealand proceedings. The Evidence Amendment Act 1994 (New Zealand) provides a reciprocal scheme which operates in New Zealand.

Order 69A Rule 1 - Short Title

This rule provides a short title for Order 69A, the rules under the Evidence and Procedure (New Zealand Act 1994. These rules will be known as the "Trans-Tasman Proceedings Rules".

Order 69A Rule 2 - Interpretation

This rule contains definitions and provides that in Order 69A, "the Act" means the Evidence and Procedure (New Zealand Act 1994; defines "another court" as an inferior court; and indicates that expressions in then rules and the Act have the same meaning.

Order 69A Rule 3 - Application of this order and other Orders

This applies Order 69A to proceedings under the Evidence and Procedure New Zealand Act and also applies, a appropriate, the other Federal Court Rules to proceedings under the Act.

Order 69A Rule 4 - leave to serve a subpoena

The scheme of the Act a based on obtaining leave from the Federal Court, or a court specified in regulations, to serve a subpoena in New Zealand. This rule provides the procedure for bringing an application for leave to serve a subpoena in New Zealand to the Federal Court.

An application for leave to serve a Federal Court subpoena must be made by motion in the Federal Court proceeding. An application for leave to serve a subpoena issued by another Court, should be made by an originating motion. The rule lists the Information that should be included In a supporting affidavit Much of this information is required under the Act and is necessary for the Court to form a view on whether leave should be granted. There is also a requirement that the applicant for leave may need to undertake to meet the expenses of non-parties in complying with a subpoena. No document relating to an application for leave to serve a subpoena in New Zealand may be inspected or copied without the leave of the Court.

Order 69A Rule 5 - Production of document or thing pursuant to subpoena

The Evidence and Procedure (New Zealand) Act provides that a document or thing may be produced at a Registry of the High Court of New Zealand in answer to an Australian subpoena. This rule provides that the Registrar of the Federal Court may liaise with that New Zealand registry on transport and receipt of the material produced pursuant to a Federal Court subpoena. Under the reciprocal New Zealand Act, the New Zealand Court is required to notify the Australian Court that issued the subpoena, if documents are produced in answer to an Australian subpoena.

Order 69A Rule 6 - Failure to comply with subpoena

If there is failure to comply with a subpoena served in New Zealand, s.16 of the Act provides that the Court may issue a certificate requesting the New Zealand High Court exercise its powers in relation to non-compliance with the subpoena.

This rule sets out the procedure for applying for such a certificate and the supporting evidence required by the Court. It provides that the form of certificate of non-compliance be Form 70A and the form must be issued under the seal of the Court.

Order 69A Rule 7 - Setting aside subpoena

A person in New Zealand served with an Australian subpoena may wish to apply to have that subpoena act aside. Section 13 of the Act provides that such an application must be made to the Court that Save leave for the subpoena to be served in New Zealand.

This rule prescribes that if the Federal Court Save leave to serve a subpoena in New Zealand, an application to set aside that subpoena is to be made by affidavit setting out the relevant facts and grounds. The form of affidavit is used as it is a more generally known document and the person who receives the subpoena in New Zealand is more likely to be able to comply with this format. The affidavit may then be filed by fax at the Registry shown in the heading of the order which gives leave to serve the subpoena. The affidavit must also include address, telephone and fax number for the applicant.

The Registrar must acknowledge receipt of a clew copy of the affidavit, if it is filed by fax, and the Registrar must serve a copy of the affidavit on the party who obtained leave to serve the subpoena in New Zealand.

The application to act aside a subpoena made in the form of an affidavit is to be determined at a date, time and place directed by the Court.

Under s.14 of the Act an application of this nature may be determined without a hearing unless there Is an objection. Form 72A prescribes the form for either the person served with the subpoena or the party issuing the subpoena to object to the determination of the application without a hearing. The Rules give a time limit of 7 days for this objection to be made.

Section 14 of the Art also provides that a hearing to act aside a subpoena may be conducted by video or telephone link. Form 72B is prescribed to enable an applicant to request that the hearing be by video or telephone link.

Order 69A Rule 8 - Evidence by Video link or telephone

Parts 4 and 5 of the Evidence and Procedure (New Zealand) Act provide for the use of telephone or video links in Australian and in New Zealand proceedings. This rules states that an application for evidence to be taken by video or

telephone links from New Zealand, may be made orally or by motion both supported by an affidavit. The rule acts out the information to be provided to the Court m that affidavit. The Court may take matters such as cost and convenience to witnesses and parties into account into deciding whether to grant an application for hearing of evidence by video or telephone.

If the Court decides to hear evidence in this way, this rule provides that the Registrar may be directed to organise the video link. The Court may make directions in respect of the place for the taking of evidence, any assistance required tom the New Zealand High Court in introducing and swearing witnesses and other matters of practical importance.

Order 69A Rule 9 - Fax copies

This rule deals with fax copies of documents used as evidence In a proceeding. The rule includes the requirement that if a fax is not of durable quality, a copy of that document must be filed in the Registry.

Order 69A Rule 10 - Enforcement of Orders made in New Zealand proceedings

In a New Zealand proceeding being conducted by videoconference, s.32 of the Act provides that the New Zealand court may make certain orders. If these orders are not complied with, the New Zealand court, may request an Australian court deal with this non-compliance. A party seeking enforcement of a New Zealand court order it to file a "Request for punishment of persons contravening an order" made under s.32 of the Act. This request is to be by Form 71A and will be the initiating process in the Federal Court. It must be accompanied by an affidavit which sets out the order that has been contravened, the persons involved and the surrounding circumstances.

The rules require that the Court must determine whether the contravention would have been a contempt of Court and if so, the provisions of Order 40 Division 1 of the Federal Court Rules, "Contempt in the face or hearing of the Court", may apply.

Rule 6

The forms referred to in these amending rules are introduced.

Form 66A - This is in the form of "Subpoena for Production" which may be issued by the Federal Court and served pursuant to leave of the Court under the Evidence and Procedure (New Zealand) Act 1994 (the Act).

Form 68A - This is the form of "Subpoena to Give Evidence" which may be issued by the Federal Court Act and served pursuant to leave of the Court under the Act.

Form 69A - This is a form of "Subpoena for Production and to Give Evidence" which may be issued by the Federal Court and served pursuant to leave under this Act.

Form 70A - This is a "Certificate of non-compliance with a Subpoena" and may issued by the Court under s.16 of the Act. If there is non-compliance with a subpoena which has been issued by the Federal Court.

Form 71A - This is a form of "Request for punishment of person contravening an Order" made under s.32 of the Act. The request may be made by a party seeking punishment for a contravention of a New Zealand order made in the context of a video or telephone link.

Form 72A - This is an "Objection to determination without hearing" and is the form to be filed if a person objects under s.14 of the Act to an application to act aside a subpoena being determined without a hearing.

Form 72B - "Request for hearing by video link or telephone". This is a form under which an applicant may request an application to set aside a subpoena be heard by video link or telephone.