Order 42 - Subpoenas Flashcards
42.01 Definitions (conduct money - sufficient money or equivalent to meet reasonable expenses of addressee attending and returning from court)
For Orders 42/42A, addressee means subject of SP
conduct money means sum of money or its equivalent, such as pre-paid travel, sufficient to meet reasonable expenses of addressee of attending court as required by SP and returning after so attending;
issuing party - means the party at whose request SP is issued
SP means order in writing requiring addressee to (a) attend to give evidence; (b) produce the SP or copy of it and a document or thing; OR (c) do both of those things
SP to attend to give evidence means what it says
SP to produce means a subpoena requiring the addressee to produce the subpoena or a copy of it and a document or thing.
42.02 Issuing of subpoena
(1) Court may by SP order addressee
(a) to attend to give evidence as SP directs;
(b) produce SP or copy of it and any doc/thing as SP directs;
(c) do both.
(2) Prothonotary shall not issue SP (a) if Court has made order (i) restricting issue or (ii) restricting without leave (b) requiring production of doc or thing in custody of the Court or another court.
(3) Prothonotary shall seal and authenticate sufficient number of subpoena copies for service and proof of service
(4) SP taken to be issued on its sealing / authentication as per (3)
42.03 Form of subpoena (42A)
(1) A subpoena shall be in accordance with Form 42A.
(2) One person per SP (3) SP to identify addressee by name or by description of office or position, unless Court otherwise orders
(4) SP to produce shall (a) identify the document or thing to be prod.
(b) specify date, time, place for production
(5) SP to attend to give evidence to specify date/time/place
(6) specified date shall be date of trial or other Court ordered date
(7) place for production can be court / address of authorised person
(8) (a) last date for SP service - date falling 5 days before earliest date on which addresse is required to comply with SP or an earlier/later date fixed by Court (b); and shall be specified in the SP
(9) if addresse is corp - corp shall comply by its appropiate/proper office Also need to have legitimate forensic purpose. Can’t be a fishing expedition
42.03.1 Alteration of date for attend production
(1) Issuing party can change date of attendance/production to a later date/time by giving notice to the addressee;
(2) SP has deeming effect as if date/time notified is the SP date
42.04 Setting aside or other relief
(1) Court can on own motion/on application of party/of any person having sufficient interest, set aside SP wholly/in part/grant other relief in respect of it. (2) App shall be made on notice to issuing party
(3) Court may order app also give notice to any other person having a sufficient interest
42.05 Service (personal service required)
(1) Personal service of SP on addressee required
(2) Issuing party shall serve a copy of a SP to produce on each other party ASAP after SP has been served on addressee, but it shall not be necessary that the copy served be sealed / served personally.
42.06 Compliance with subpoena (conduct money, in time required)
(1) Don’t have to comply with SP to attend to give evidence unless conduct money provided a reasonable time before day on which attendance is required. (2) Don’t have to comply if SP not served on or before last day for service specified in the subpoena
(3) Despite 42.05(1), if you have actual knowledge of SP and its requirements before last day for service, still have to comply even if it wasn’t served personally.
(4) addressee shall comply with SP to produce (a) Comply by taking document/thing to Court at date/time/place specified for production (b) delivering/sending document/thing to Prothonotary at least three clear business days before date for compliance
(5) If SP is also to attend and give evidence, production as per (4) does not discharge from obligation to give evidence
(6) Unless SP specifically requires original, can produce copy
(7) copy may be (a) photocopy (b) PDF on CD-Rom
42.07 Production otherwise than upon attendance
(1) Rule applies if an addressee produces doc/thing per 42.06(4)(b)
(2) Proth shall, if requested, give receipt for doc/thing to addressee.
(3) If addressee produces more than one doc/thing, addressee shall, if requested by the Proth, provide a list of the docs/things produced.
(4) addressee may, with consent of issuing party, produce a copy, instead of the original, of any document required to be produced.
42.08 Remov, retrn, inspctn, cop’g + disposal of docs/things - court can give directions
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 in response to a subpoena.
42.09 Inspection of, and dealing with, documents and things produced otherwise than on attendance
(1) Applies for 42.06(4)(b) production
(2) on request, Proth. shall inform party whthr production responding to SP occurred and if so include general description of production
(3) No person shall inspect a document or thing produced otherwise than with the leave of the Court. (4) Unless court otherwise orders, Proth may permit parties to inspect at the office of the prothonotary.
(5) If addressee objects to anything being inspected, shall at time of production, notify the Proth in writing of objection and the grounds. (6) A person having sufficient interest can do the same.
(8) Prothonotary then notifies issuing party and (7) refers the objection to the Court for hearing and determination.
(9) Proth shall not permit any item / thing to be removed from office except on application in writing signed by the solicitor for the party.
(10) Solicitor who makes such an application and removes document undertakes to the court by force of this rule (a) to keep the thing or document in personal custody of the solicitor or a barrister briefed in the proceeding. (b) And it will be returned in same condition etc when directed.
(11) Proth. may in its discretion grant (9) application or refuse it.
42.10 Disposal of documents and things produced
(1) Unless Court otherwise orders, Proth may, in its discretion, return to addressee any doc/thing produced to him in response to the SP.
(2) Unless the Court otherwise orders, the Proth shall not return any doc/thing per (1) unless Proth has given to the issuing party at least 14 days’ notice of the intention to do so and that period has expired.
(3) Issuing party must attach to front of a SP to produce to be served on the addressee a notice and declaration per Form 42B.
(4) Addressee must— (a) complete the notice and declaration referred to in (3); and (b) attach it to the SP or copy of the SP which accompanies the documents produced to the Court under the SP.
(5) Subject to paragraph (6), the Proth may, upon the expiry of 4 months from conclusion of proceeding, cause to be destroyed all docs produced in proceeding in compliance with SP which were declared by addressee to be copies. (6) Prothonotary may cause to be destroyed those docs declared by the addressee to be copies which have become exhibits in proceeding when they are no longer required in connection with proceeding, including on any appeal.
42.11 costs and expenses of compliance
(1) Court may order issuing party to pay amount of any reasonable loss or expense incurred in complying with the SP. (2) Amount fixed per usual costs calculation rules. (3) Amount is separate/additional to (a) conduct money (b) any witnesses expenses
42.12 failure to comply with subpoena — contempt
(1) Failure to comply without lawful excuse is contempt
(2) if a SP has not been served personally on addressee, addressee may be dealt with for contempt of court as if addressee had been so served if it is proved that the addressee had, by last day for service of SP, actual knowledge of subpoena and its requirements.
(3) w/o prejudice to any other rules to enforce compliance with a SP
42.13 Documents & things in custody of court
(1) Party seeking production of doc/thing in custody of Court or another court, may inform Proth. in writing accordingly ID’ing doc/thg
(2) If in custody of Court, Proth shall produce the doc/thing
(a) in Court or to any person authorised to take evidence in proceeding as required by party; OR (b) as Court directs
(3) if doc/thing is in custody of another court, Proth. shall, unless the Court otherwise ordered (a) request it (b) deal with as per (2) above
