Interlocutory application for leave to serve subpoena in New Zealand (Form 97)

Section 31 of the Trans-Tasman Proceedings Act 2010 says a subpoena issued in an Australian court proceeding must not be served in New Zealand without the court's leave. In deciding, the court must consider the significance of the evidence or document and whether it could be obtained by other means without significantly greater expense and with less inconvenience to the person named. Leave must be refused if the person is under 18, and must be given on condition that the subpoena is not served after a specified day (s 31(3) to (5)). Rule 34.66 of the Federal Court Rules 2011 requires the application to be an interlocutory application in accordance with Form 97, with a copy of the subpoena and a detailed affidavit.

When you need it

• You are a party to a Federal Court proceeding and the witness or document holder you want to subpoena is in New Zealand.
• You have a subpoena in the Trans-Tasman form ready: Form 98A (give evidence), 98B (produce documents) or 98C (both) (r 34.67).
• The addressee is 18 or older (s 31(5)).

1. 1

   Heading and addressees

   Copy the proceeding heading and name each party who may be affected in the 'To' line, with the applying party's role.

2. 2

   Hearing details

   Leave the time, date and place, and any abridgment of time, for the Registry.

3. 3

   Orders sought

   The form seeks leave to serve a subpoena in New Zealand. Add any other orders you need, such as directions about how it is to be served (s 32(1)(b)).

4. 4

   Prepare the affidavit

   Cover each matter in rule 34.66(2)(b): the addressee's name, occupation and address and whether they are over 18; the nature and significance of the evidence; steps taken to see if it can be obtained another way; the intended latest service date; the expenses to be tendered and how; the estimated attendance time; and any known grounds for setting the subpoena aside.

5. 5

   Service option, date and sign

   Choose whether you will serve all, some or none of the parties, then date and sign.

• File Form 97 with a copy of the subpoena and the affidavit through eLodgment or at a District Registry. Without leave, no-one may search for, inspect or copy documents in the application (r 34.70).
• If leave is given, serve the subpoena in New Zealand in the same way as in Australia and as directed, with a copy of the leave order and the prescribed notice of the addressee's rights and obligations (s 32).
• Pay allowances and travel expenses at service or a reasonable time before compliance (s 33). A production-only subpoena must allow production at any registry of the High Court of New Zealand at least 10 days before the production date (s 34).
• A filing fee may apply. Check the Court's current fee schedule.

• Explain why the evidence cannot be obtained another way, such as by remote evidence or by document requests. The Court must consider this (s 31(3)(b)).
• Before granting leave, the Court may require an undertaking to meet the addressee's reasonable expenses above the amount tendered (r 34.66, Note).
• The addressee may apply to the Australian court to set the subpoena aside, for example for hardship or serious inconvenience (ss 35, 36).