Order 42A - Subpoenas for production to the prothonotary

Question 1

42A.01 Application

Answer 1

(1) Can only be issued by solicitor for party, against non-party, only for production of doc or evidence before—
● (a) The hearing of interlocutory or other application; or
● (b) The trial of the proceeding.
(2) Order 42 applies so far as is practicable

Question 2

42A.02 Issuing Subpoena

Answer 2

A SP issued under this Order shall require the addressee to produce to the Proth on or before a day specified by the Proth in the SP the document identified in the SP.

Question 3

42A.03 Form of subpoena (42AA)

Answer 3

Shall be in form 42AA

Question 4

42A.04 Affidavit of service (personally on a’ee, then ASAP on other parties (not personally/sealed), must file affidavit of service)

Answer 4

(1) SP to be served personally on add’ee, (2) serve copy ASAP on other parties (personal/sealed) service not required (3) Party who serves copy of SP per this Order shall forthwith file aff. of service.

Question 5

42A.05 compliance with subpoena (by delivering/sending doc to Prothonotary)

Answer 5

(1) addressee shall comply with SP under this Order by producing doc to Proth. by delivering or sending it and, if sent, doc shall be sent so that Proth. receives it on or before day specified in SP
(2) If doc not in writing, then, provided original is held by person named until trial, copy only need be produced to Proth and, if copy is produced, it shall be clearly marked as such and may be used by Proth for purposes of inspection and, if necessary, copying.

Question 6

Receipt for document - 42A.06

Answer 6

Where doc’s produced in compliance with SP under this Order, Proth shall, if requested, give receipt to person producing doc.

Question 7

42A.07 objection by addressee or other person (notify, stating grounds)

Answer 7

If (a) addressee has any objection to producing doc ID’d in SP or to its being inspected by any one or more of parties to proceeding; or
(b) person having sufficient interest, other than party, has any objection to production of doc identified in SP or to its being inspected, person shall notify Proth. of objection, stating grounds

Question 8

42A.08 objection by party to inspection by other party

Answer 8

(1) if a party has any objection to inspection by another party of document identified in SP, objecting party shall notify Proth in writing of objection and state grounds before day specified in SP.
(2) If party other than P seeks by SP production of any hospital or medical file or record concerning the P or P’s condition, P may, before taking objection under paragraph (1), inspect the file or record produced to the Proth and notify the Proth thereafter of any objection the P has to inspection by any other party, provided that the P makes that inspection and notifies that objection and the grounds thereof in writing within 7 days after day specified in SP for production of the file or record to the Proth

Question 9

42A.09 procedure after objection

Answer 9

(1) Proth refers SP to judge/Asj for hearing/determ. of objection
(2) shall notify issuing party in writing of objection and grounds of objection and time and place at which objection will be heard and party shall notify the addressee and all other parties accordingly

Question 10

42A.10 inspection of document produced

Answer 10

If no objection notified under rr 42A.07/42A.08 or to extent any such objection disallowed, each party, unless Judge of Court or an AssJ otherwise orders, may, by appointment with Proth, inspect/ take copies of doc produced in compliance with SP under this Order.

Question 11

42A.11 removal of document

Answer 11

(1) Proth shall not permit any document to be removed from office except on application in writing signed by the sollie for a party.
(2) Sollie who makes such an application and removes doc undertakes to court by force of this rule (a) to keep document in personal custody of solicitor or barrister briefed in proceeding. (b) And it will be returned in same condition etc when directed.
(3) Proth. has discretion to decline to accede to any such app.

Question 12

42A.12 return or disposal of document

Answer 12

(1) Subject to any Court order, Proth. (a) may in its discretion return to addressee any doc produced in compliance with SP
(b) shall upon returning it, inform addressee that order to produce remains in force until trial/other determination of proceeding
(c) may specify date for return to Proth.
(2) Proth. shall not return until Proth. gives 14 days notice in writing to issuing party of Proth’s intention to do so
(3) In urgent case and at request of (a) addressee, (b) plaintiff in case of any hospital/medical file or record, Proth. may return a document under para (1) without first giving notice under (2), but shall give notice to issuing in party after return

Question 13

42A.13 production of doc. at trial

Answer 13

Subject to Rule 42A.12, the Proth. shall, unless otherwise ordered, produce or hand to the Associate of the trial Judge for production at the trial of the proceeding each document produced to the Prothonotary in compliance with a subpoena under this Order.

Question 14

42A.14 subpoena for trial unaffected

Answer 14

Issuing of a SP under this order does not preclude issuing of SP otherwise than under this order