Originating application under section 23A of the International Arbitration Act 1974 (Form 56)

Section 23A of the International Arbitration Act 1974 lets a party to an arbitration apply to a court when a person refuses or fails to attend before the tribunal, produce a document, take an oath, answer a question or do another thing the tribunal requires. The court may order the person to attend before the court for examination, produce the document or do the thing, and order the record or document to be transmitted to the tribunal (s 23A(3)). Under rule 28.47 of the Federal Court Rules 2011, Form 56 is used where no court proceeding has yet been started in relation to the arbitration. If a proceeding already exists, an interlocutory application is filed in it instead.

When you need it

• A witness has not complied with a subpoena issued by the Court under section 23(3) to attend or produce documents to the tribunal.
• With the tribunal's permission, a person has not attended, produced a document, answered a question or done something else the tribunal required (s 23A(1)(b), (d), (e), (f) and (2)).
• There is no existing Federal Court proceeding about the arbitration (r 28.47(1)(a)).

1. 1

   Complete the heading

   Fill in the District Registry, Division and parties. The respondent is the person against whom the order is sought.

2. 2

   Orders sought

   The form records that the applicant is a party to the arbitral proceeding, that no proceeding has been started about it, and that an order under section 23A(3) is sought. Set out the specific orders, for example attendance for examination or production of a document and its transmission to the tribunal.

3. 3

   Prepare the affidavit

   State the person against whom the order is sought, the order sought, the ground under section 23A(1) relied on, the terms of the tribunal's permission, and the material facts (r 28.47(2)). Exhibit the permission and any subpoena or tribunal direction.

4. 4

   Addresses, service and signature

   Give the address for service and email, choose one service statement, then date and sign as applicant or lawyer.

• File through eLodgment with the affidavit. A filing fee applies - check the current fee schedule.
• Serve the application and affidavit on the respondent. Before an order is made against a non-party to the arbitration, that person must be given an opportunity to make representations (s 23A(5)).
• Applications of this kind are typically heard promptly by a Commercial Arbitration National Coordinating Judge (CA-1 para 4.7).

• Get the tribunal's permission in writing before applying on a ground that needs it (s 23A(2)).
• Section 23A applies unless the parties to the arbitration agreement agreed in writing that it will not (s 22(2)). Check the agreement and rules.
• A person cannot be compelled to answer a question or produce a document they could not be compelled to in a proceeding before the Court (s 23A(4)).