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SR 1983 No. 27 Rules/Court & Tribunal Rules as made
These Rules amend the Rules of the Supreme Court of the Australian Capital Territory.
Tabling HistoryDate
Tabled HR21-Apr-1983
Tabled Senate21-Apr-1983
Gazetted 18 Mar 1983
Date of repeal 01 Jul 2006
Repealed by These Rules expired on 1 July 2006 (see Court Procedures Act 2004, s 101 and 105) (ACT Legislation).

1983 No. 27*1* RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL
TERRITORY*2* (AMENDMENT)

*1* Notified in the Commonwealth of Australia Gazette on 18 March 1983.

*2* Statutory Rules 1937 No. 85 as amended by 1938 No. 99; 1939 Nos. 48 and 61; 1950 No. 22; 1956 No. 135; 1958 No. 64; 1962 Nos. 47 and 76; 1966 No. 132; 1967 No. 68; 1968 No. 13; 1969 Nos. 57, 66, 221 and 222; 1972 No. 189; 1973 Nos. 95 and 149; 1974 Nos. 25, 60 and 197; 1975 No. 81; 1976 No. 190; 1977 No. 152; 1978 Nos. 86 and 173; 1980 Nos. 210 and 214; 1981 Nos. 104, 196, 296 and 328; 1982 Nos. 202, 316 and 365; 1983 No. 26.

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(AMENDMENT) - RULE 1
Principal Rules

1. In these Rules, "Principal Rules" means the Rules of the Supreme Court of the Australian Capital Territory.

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(AMENDMENT) - RULE 2
Service on corporation

2. Rule 6 of Order 10 of the Principal Rules is amended-
(a) by inserting in paragraph (a) "or the Companies Act 1981" after "1962";
(b) by inserting in sub-paragraph (a) (i) "or sub-section 340 (1) of that Act" after "Ordinance";
(c) by inserting in sub-paragraph (a) (ii) "or sub-section 421 (1) of that Act" after "Ordinance"; and
(d) by inserting in sub-paragraph (a) (iii) ", or sub-section 340 (1) or 321 (1) of that Act," after "Ordinance".

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(AMENDMENT) - RULE 3
Appearance allowed before judgment

3. Rule 11 of Order 13 of the Principal Rules is amended by inserting "final" after "before".

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(AMENDMENT) - RULE 4

4. Before rule 1 of Order 39 of the Principal Rules, the following rule is inserted in Order 39:

Interpretation-Order 39
"1A. In this Order, unless the contrary intention appears-
'person named', in relation to a subpoena, means the person to whom the subpoena is addressed;
'subpoena for production' means an order in writing requiring the person named in the order to attend as directed by the order to produce a document or thing for the purposes of evidence or, where the person named is a corporation, requiring the corporation to produce a document or thing for the purposes of evidence and its officer to attend and answer questions;
'subpoena to give evidence' means an order in writing requiring the person named in the order to attend as directed by the order for the purposes of giving evidence.".

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(AMENDMENT) - RULE 5

5. After rule 6 of Order 39 of the Principal Rules, the following rule is inserted:

Inspection of documents in the possession of a person not a party
to the cause or matter
"6A. (1) In this rule, 'respondent' means, in relation to an application under sub-rule (2), the person against whom an order is sought in the application.

"(2) Any party to a cause or matter may apply to the Court or a Judge for an order directing any person who is not a party to the cause or matter to produce for inspection any document in his possession or power relating to anything in question in the cause or matter which he could be required to produce at the trial.

"(3) An application under sub-rule (2) shall be made on motion supported by affidavit and the notice of motion and a copy of every affidavit in support and of any exhibit referred to in such an affidavit shall be served on the respondent at least 3 clear days before the return day.

"(4) If the Court or Judge is satisfied that the respondent has in his possession or power a document of the kind referred to in sub-rule (2) and that it is necessary that the party making the application under that sub-rule should inspect the document at that stage of the cause, the Court or Judge may, if it or he thinks it just, on such conditions as it or he thinks fit, order that the respondent produce the document, or a part of the document, for the inspection of the party at the time and place specified in the order and that the party or his solicitor be permitted to take copies of the document or part.

"(5) The place specified in an order under sub-rule (4) shall, if the respondent so requests, be the office or place of business of the respondent or his solicitor, or the place at which the document is usually kept.

"(6) The Court or Judge may, whether it or he grants or dismisses an application under sub-rule (2) in relation to a document, order the party making the application to pay to the respondent the costs of the application and may order that prior payment of the costs be a condition of the inspection of the document.

"(7) No order for costs shall in any event be made against the respondent.

"(8) Nothing in this rule affects the power of the Court or a Judge to order that the costs of an application under sub-rule (2) (including any costs paid by the party making the application to the respondent) be borne or paid by any other party to the cause or matter.".

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(AMENDMENT) - RULE 6

6. Rules 25, 26, 27, 28, 29, 30, 31, 32 and 33 of Order 39 of the Principal Rules are repealed and the following rules substituted:

Power to issue
"25. The Court may, in any proceeding, issue a subpoena to give evidence, a subpoena for production, or a subpoena for production and to give evidence, in the prescribed form or in such other form as the Court directs for the attendance or production on any trial or other occasion of or by the person named before the Court or before any Judge, officer, examiner or other person having authority to take evidence.

Return date for subpoena for production
"26. A subpoena for production shall not require a person to produce a document earlier than 14 days after the service of the subpoena, unless the Court orders otherwise.

Conduct money
"27. (1) A person named shall be excused from complying with a subpoena requiring him to attend or produce any document or thing on any day on which his attendance is required unless a sum sufficient to meet his reasonable expenses of complying with the subpoena in relation to that day is paid or tendered to him at the time of service of the subpoena or not later than a reasonable time before that day.

"(2) Where the person named is a corporation the sum mentioned in sub-rule (1) may be paid or tendered to any person on whom service of the subpoena may be effected.

Production by non-party
"28. (1) Where the person named in a subpoena for production of any document or thing in relation to a proceeding, being a subpoena requiring attendance before the Court or a Judge or officer of the Court, is not a party to the proceeding, the subpoena shall, unless the Court otherwise orders, permit him to produce the document or thing to the Registrar not later than the day before the first date on which his attendance is required, instead of attending and producing the document or thing as required by the subpoena.

"(2) Where a document or thing is produced to the Registrar pursuant to sub-rule (1), the Registrar shall-
(a) give a receipt to the person producing the document or thing; and
(b) produce the document or thing as the nature of the case requires or as the Court directs.

"(3) This rule does not apply to so much of a subpoena as requires the person named to attend to give evidence in any proceeding.

Costs of complying with subpoena
"29. (1) Where a person named in a subpoena for production of any document or thing in relation to a proceeding is not a party to the proceeding and he incurs substantial expense or loss in complying with the subpoena the Court or Judge dealing with the proceeding may order that the party who requested the issue of the subpoena pay to that person, in addition to any amount which the person served with the subpoena is entitled to be paid pursuant to rule 27 of this Order, or pursuant to rule 7 of Order 65 and the Fourth Schedule, an amount which is sufficient to compensate him for such expense or loss as is reasonably incurred or lost by that person in complying with the subpoena.

"(2) Where an order is made under sub-rule (1) the Court or Judge hearing the matter shall either fix the amount or direct that the amount shall be fixed by the taxing officer.

"(3) The provisions of Order 65 apply mutatis mutandis to any taxation under this rule.

Banker's books
"30. (1) Where, in any proceeding, the person named in the subpoena is an officer of a bank, and the bank is not a party to the proceeding, and the subpoena requires the officer to produce any banker's book, the contents of which can be proved under legislation in force in the Territory by means other than the production of the book, the subpoena shall, unless the Court otherwise orders, expressly permit the officer to produce proof of the relevant entries in accordance with that legislation, instead of producing the banker's book.

"(2) When issuing a subpoena the Registrar shall not be concerned to enquire whether sub-rule (1) applies to the subpoena, but the Court may set aside as irregular a subpoena which does not comply with sub-rule (1).

Issue-Forms 45, 46, 47 and 48
"31. (1) On request by a party, the Registrar shall, unless the Court otherwise orders, issue a subpoena to give evidence, a subpoena for production or a subpoena for production and to give evidence.

"(2) A subpoena shall be issued under seal.

"(3) A party requesting the issue of a subpoena shall file a copy of the subpoena, but need not file a praecipe for subpoena.

"(4) Subpoenas shall be in, or substantially in, the forms numbered 45 to 48 in the First Schedule.

Document or thing in custody of a court
"32. (1) The Registrar shall not issue a subpoena for production of any document or thing in the custody of the Court or another court.

"(2) A party desiring the production of a document or thing in the custody of another court shall request the Registrar to proceed under sub-rule (3).

"(3) On the receipt of a request under sub-rule (2), the Registrar shall request the court holding the document or thing to send it to the Registrar.

"(4) The Registrar shall produce the document or thing as the nature of the case requires or as the Court directs.

Service
"32A. (1) Subject to sub-rule (2), a subpoena shall be served personally.

"(2) Where the person named in a subpoena is a party and has a solicitor in the proceeding, the subpoena may, with the consent of the solicitor, be served on the person named by leaving it at his address for service.

"(3) Where the person named in a subpoena is a medical expert-
(a) service of the subpoena on the expert may be effected at the place where the expert's practice is carried on, by handing it to some person apparently engaged (whether as servant or otherwise) in the practice and apparently of or above the age of 16 years; and
(b) if, on tender of the subpoena to the person mentioned in paragraph (a), he refuses to accept it, the subpoena may be served by putting it down in his presence after he has been told of the nature of the subpoena.

"(4) A subpoena shall not be enforced unless service of it has been effected in accordance with this rule.

Setting aside
"33. (1) The Court may, on motion by the person named in a subpoena, set aside the subpoena wholly or in part.

"(2) Notice of a motion under sub-rule (1) shall be filed and served on the party on whose request the subpoena was issued.

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(AMENDMENT) - RULE 7

7. Rule 44 of Order 39 of the Principal Rules is repealed and the following rule substituted:

Proceedings may be commenced by the Attorney-General
"44. Where a Commission Rogatoire or Letter of Request as mentioned in rule 38 does not authorize an agent to make an application on behalf of the Foreign Court or Tribunal, proceedings for the orders mentioned in that rule may be commenced by the Attorney-General.".

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(AMENDMENT) - RULE 8

8. After rule 53 of Order 65 of the Principal Rules the following rule is inserted:

Costs incidental to negotiations
"53A. Any costs of and incidental to negotiations for settlement which appear to the taxing officer to have been reasonably and properly incurred shall be allowed on taxation whether or not the negotiations were successful.".

1983 No. 27 RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(AMENDMENT) - RULE 9
First Schedule

9. The First Schedule to the Principal Rules is amended by omitting Forms 45, 46, 47 and 48 and substituting the following forms:

Form 45
Order 39, sub-rule 31 (4)
SUBPOENA TO GIVE EVIDENCE
(Heading as in Form 1)
To (name) (address) THE COURT ORDERS that you shall attend for the purposes of giving evidence-
(a) before the Court (or as the case may be);
(b) at (address of Court or place);
(c) on (insert date) at (insert time) and until you are excused from further attending,
but you need not attend on any day unless reasonable expenses have been paid or tendered to you.

Dated this day of 19 .
By the Court
(Signature and description
of officer of the Court)
Note that failure to comply with this subpoena may constitute contempt of court and may result in your arrest. If you think the subpoena is oppressive, you may apply to the Court to have it set aside wholly or in part. Issued at the request of (name), the applicant's solicitor (or as the case may be).
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Form 46
Order 39, sub-rule 31 (4)
(Subpoena to a natural person)
SUBPOENA FOR PRODUCTION
(Heading as in Form 1)
To (name) (address)
THE COURT ORDERS that you shall attend and produce this subpoena and the documents and things described in the Schedule for the purposes of evidence-
(a) before the Court (or as the case may be);
(b) at (address of Court or other place);
(c) on (insert date) at (insert time) and until you are excused from further attending, but-
(i) you need not attend or produce any document on any day unless reasonable expenses have been paid or tendered to you;
(ii) if you are not a party to these proceedings, instead of so attending you may produce this subpoena and the documents and things described in the Schedule to the Registrar of the Court at the above place not later than the day before the first day on which you are required to attend; and
(iii) if, as an officer of a bank, you are required by this subpoena to produce a banker's book and the following legislation, namely (insert reference to the legislation in force in the Territory enabling alternative mode of proof of entries in banker's books) applies, you need not produce it if you produce proof of the relevant entries in it in accordance with that legislation.

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SCHEDULE
(Description of documents and things)
Dated this day of 19 .
By the Court
(Signature and description of officer of the Court)
Note that failure to comply with this subpoena may constitute contempt of court and may result in your arrest or in the case of a corporation an order of sequestration may be made. If you think the subpoena is oppressive, you may apply to the Court to have it set aside wholly or in part. Issued at the request of (name), the applicant's solicitor (or as the case may be).
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Form 47
Order 39, sub-rule 31 (4)
(Subpoena to a corporation for production and for its proper officer to
answer questions concerning possession, &c., of documents)
SUBPOENA FOR PRODUCTION AND TO ANSWER QUESTIONS
(Heading as in Form 1)
the case may be). To (name of corporation) (address) THE COURT ORDERS that-
(a) you shall produce this subpoena and the documents and things described in the Schedule for the purposes of evidence by causing your proper officer to attend and produce them-
(i) before the Court (or as the case may be);
(ii) at (address of Court or other place);
(iii) on (insert date) or, if notice of a later date is given to you, that later date (or state the commencement and concluding dates of sittings of the Court and that notice would be given of a date during those sittings when the subpoena and documents and things are to be produced) at ( insert time) and until the officer is excused from further attending, but-
(A) the officer need not so attend or produce any document or thing on any day unless reasonable expenses have been paid or tendered to one of your officers;
(B) you may produce this subpoena and the documents and things described in the Schedule to the Registrar of the Court at the above place by hand or by post in either case so that he receives them not later than the day before the first day on which your officer is required to attend; and
(C) if you are a bank and are required by this subpoena to produce a banker's book and you are not a party to these proceedings and the following legislation, namely (insert reference to the legislation in force in the Territory enabling alternative mode of proof of entries in banker's books) applies, you need not cause your officer to produce it if you cause him to produce proof of the relevant entries in it in accordance with that legislation; and
(b) the officer who is to attend shall make enquiries for the purpose of answering, and, on attending, shall answer, such questions as the Court requires him to answer concerning possession or custody of those documents and things.

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SCHEDULE
(Description of documents and things)
Dated this day of 19 .
By the Court
(Signature and description of officer of the Court)
Note that-
(1) failure to comply with this subpoena may constitute contempt of Court and may result in the sequestration of your property or arrest of one or more of your officers, or in both;
(2) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena, but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you;
(3) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(4) if you think the subpoena is oppressive, you may apply to the Court to have it set aside wholly or in part.
Issued at the request of (name), the applicant's solicitor (or as the case may be).

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Form 48
Order 39, sub-rule 31 (4)
SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE
(Heading as in Form 1)
Dated this day of 19 . Note that- To (name) (address) THE COURT ORDERS that you shall attend and produce this subpoena and the
that you shall attend for the purposes of giving evidence-
(a) before the Court (or as the case may be);
(b) at (address of Court or place);
(c) on (insert date) at (insert time) and until you are excused from further attending, but-
(i) you need not attend or produce any document on any day unless reasonable expenses have been paid or tendered to you;
(ii) if you are not a party to the proceedings, instead of producing the documents and things described in the Schedule when so attending, you may produce this subpoena and the documents and things described in the Schedule to the Registrar of the Court at the above place not later than the day before the first day on which you are required to attend; and
(iii) if, as an officer of a bank, you are required by this subpoena to produce a banker's book and (insert reference to the legislation in force in the Territory enabling alternative mode of proof of entries in banker's books ) applies, you need not produce it if you produce proof of the relevant entries in it in accordance with that legislation.

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SCHEDULE
(Description of documents and things)
Dated this day of 19 .
By the Court
(Signature and description of officer of the Court)
Note that failure to comply with this subpoena may constitute contempt of court and may result in your arrest. If you think the subpoena is oppressive, you may apply to the Court to have it set aside wholly or in part. Issued at the request of (name), the applicant's solicitor (or as the case may be).