Subpoena to give evidence and produce documents (New Zealand) (Form 98C)

Part 5 of the Trans-Tasman Proceedings Act 2010 (Cth) allows a subpoena issued in a federal court to be served in New Zealand, but only with the court's leave (s 31). Leave must be subject to a last day for service, cannot be given if the person is under 18, and the subpoena must be accompanied by the order giving leave and a notice of the person's rights and obligations (ss 31, 32). In the Federal Court, leave is sought by interlocutory application in Form 97 with an affidavit (r 34.66), and the subpoena must be in Form 98A, 98B or 98C (r 34.67). Form 98C is for both evidence and documents, and it starts with the required Notice to Witness.

When you need it

• A witness in New Zealand needs to give evidence and produce documents in a Federal Court proceeding.
• You have obtained, or are applying for, leave to serve the subpoena in New Zealand.
• Use Form 98A for evidence only and Form 98B for documents only.

1. 1

   Complete the Notice to Witness

   Fill in the heading and any Court contact details asked for in the notice. The rest of the notice sets out the witness's rights and obligations and how to apply to set the subpoena aside.

2. 2

   Complete the subpoena

   Insert the addressee, the last date for service (matching the date in the leave order), your address for service, and the date, time and place for attendance and production.

3. 3

   Give the production addresses

   Insert the Federal Court registry address and the High Court of New Zealand registry address to which documents may be sent.

4. 4

   List the documents

   Complete the schedule of documents or things to be produced, and the schedule of parties if needed.

• Apply for leave by interlocutory application in Form 97 with a copy of the subpoena and an affidavit covering the matters in r 34.66(2), such as the addressee's age, the significance of the evidence, the service date and the expense money to be given.
• Serve the subpoena in New Zealand with a copy of the leave order and the notice (TTPA s 32), and pay allowances and travel expenses sufficient for reasonable expenses at service or a reasonable time before compliance; vouchers such as travel tickets can be used (s 33).
• The witness can send documents to the Federal Court registry at least 2 clear business days before the date, or to a High Court of New Zealand registry; production in New Zealand must be allowed up to 10 days before the date (TTPA s 34).
• Producing documents does not excuse the witness from attending to give evidence.

• The Court must consider whether the evidence could be obtained another way without significantly greater expense and with less inconvenience (TTPA s 31(3)), so address this in your affidavit.
• The witness may apply to set the subpoena aside; some grounds are mandatory, such as lacking travel documents (TTPA s 36).
• The Subpoenas Practice Note (GPN-SUBP) does not apply to leave to serve in New Zealand (para 1.2).