Applications, Affidavit Evidence, Subpoenas, Experts DRAFT!!!!!!! / Lecture Hours 16 - 18

applications, affidavit evidence, subpoenas, experts

A. Applications in a Proceeding

  • 2 ways of giving evidence in court:

By affidavit (usual way of giving evidence in interlocutory applications - want further and better particulars of a pleading or disclosure not given etc.) and,

Orally (not considered in this unit)

Application formalities - Rule 32

  • the application MUST be in the approved form (Form 9)
  • the application must name as respondent ANY PARTY whose interests may be affected by the granting of the relief sought.
  • r32(5) “Service” – the application must be filed and then served on each respondent at least two business days before the day that is set for the hearing of the application.

Applications

  • Applications in a matter concerning things that ought to be happening in a matter, but aren’t – interim matters. (eg. service could not be affected; therefore, make application to Court for substituted purpose or application to strike out a statement of claim because it doesn’t disclose a course of action

How do you list a hearing for an application?

  • Chapter 13 Part 1 – originating applications in FORM 5 as well as Interim Applications (r461)
  • r463 – requires that a party bringing an application must write on it an estimate of the duration of the hearing of the application.
  • Requirement that an outline of argument is provided on all contested and ex parte applications.
  • Practice Direction no 14 of 1999 (SG @ 93)
  • r390 – subject to the Rules or a direction of the Crt;
  • evidence at the hearing of a proceeding started by claim may only be given orally;
  • evidence in a proceeding by application may only be given by affidavit (generally)

Affidavits

  • Basically an affidavit needs to provide the Court with the evidence which is sufficient to satisfy it that you are entitled to the particular relief that you are claiming (eg. application for substituted service; you need to produce affidavit material sufficient for the Court to be persuaded of: practical impossibility of actual service; method of service that you’re are proposing is likely to bring service tot eh knowledge of the defendant)

Expert Evidence

  • Some special requirements in Rules that apply when a person intends to call an expert witness (r423)
  • Court Experts – special rules allowing the Crt to appoint an expert (Pt. 6 of Chapt. 11; rr424-429)

Interlocutory Applications

  • Pt. 8 of Chapt.11; only applies to certain types of interlocutory applications. It requires an exchange of correspondence as a pre-condition to the making of the application (rr442-448); eg. an application for further and better particulars.

Subpoenas

Power to issue: r414(2),(4)

  • (2) Court may on its own initiative or at the request of a party issue a subpoena, requiring attendance of the person specified before the court or an officer etc. having authority to take evidence.

The issue on the court’s own initiative is very rare.

  • (4) Registrar may issue the subpoena if a party files a request for a subpoena. (“may” does extend some discretion, because it is different to the old rules.)

Determination:

  • You must first determine whether a subpoena is necessary.
  • You may need to issue a subpoena to a party to the proceedings (eg. insurance matter where in the defendant - subrogated by the insurance company - may be supporting the plaintiff. General rule that one does not subpoena medical witness; and similarly, most other experts.
  • Police and public servants will generally not come unless subpoena.
  • Consider also scheduling your witnesses - otherwise you run the risk of pissing them off!

Technical Considerations

  • Must be in approved form (r415 - compels the use of the correct form and requires that a subpoena for production must have a notice in the approved form advising the person who is to comply with it that they have a right to set aside the subpoena on any of the specific grounds):
  • Subpoena for production [ of documents] - form 41
  • Subpoena to give evidence [commands attendance for oral evidence] - form 42
  • Subpoena for production and to give evidence - form 43. (SG @99)

Request for subpoena

  • Subpoena for request - Form 44; It is the application to the court to issue the subpoena and it will stay on the Court file and the subpoena is stamped and given back - r414(5), it is not filed.
  • R414(3) - subject to register’s direction or court order - must specify name or designation by office or position; of person to whom subpoena directed, unless the registrar directs or the court otherwise orders. (if you don’t want the person’s name to appear on the file, must provide a letter requesting of the registrar to exercise his discretion)
  • Can search the court file to find out who the opposition has called (and should do it)

Subpoena particulars

  • R414(6) - subpoena to give evidence may be addressed to more than one person - note that this is not available for the other types of subpoenas.
  • R414(7) - name or designation by office or position of the person to whom subpoena directed must appear on subpoena before it is issued (no discretion to issue a blank subpoena)
  • R414(8) - subpoena for production must include adequate description of document or thing. Document is defined, very widely, in the AIA.
  • If document belongs to an employer or company. Usually, direct to the witness who is giving evidence or the person who has control over the document. Exception - Subpoena to employer, company. An employee won’t be forced to violate his or her duty to their employer; an employer should have adequate opportunity to claim privilege. For that reason documents which are held by the employee for the employer may not be compelled. Usually direct to the person who has actual control over the document. In the case of the company, it is usual to direct the subpoena by the appropriate officer (Eg. Bloggs Corporation or the appropriate officer of Bloggs Corp.)
  • See Rochfort v Trade Practices Commission (1983) 153 CLR 134 [12.5.4C] Outlines the rationale and it also c/f the position of unincorporated associations - in which case it is usual to direct the subpoena to the executive officer.

Payment to witnesses

  • Is entitled to be paid for expenses that will be incurred in coming to court in compliance with the subpoena - conduct money. The rules specifically excuse a person from complying with a subpoena unless money is tendered - either at the time of service or within a reasonable time; see r419 below.
  • R419 - must tender conduct money when serving subpoena or within reasonable time before attendance under subpoena required. Also says that this is in addition to amounts payable as normal witness expenses.
  • Conduct money - if highly qualified practitioner - first class airfare etc. If normal lay witness, economy airfare etc. Must look at who is being required to attend and from where they are being subpoenaed from.
  • R418 - mechanism for a non-party served with subpoena for production to recover other costs incurred in complying with the subpoena -
  • cover costs before attendance, searching and collating documents sough to be produced. Allows the court to make an order on whose behalf the subpoena is issued all or part of the costs including legal costs. Court can fix amount or order that the party appear before an assessor. Order can be made at any time before an order that finally decides the proceedings is made.
  • If a party who is ordered to pay the costs of a non-party in complying with a subpoena, subsequently gets an order for the costs of the proceedings, then the court may allow those losses and expenses to be included in costs recoverable or it can make any order it considers as appropriate.
  • R417 - general power for court, on application, to order payment of loss and expense incurred in complying with subpoena.
  • More general than r418.
  • Both r417 and r418 appear to be included in order to overcome the case of Bank of NSW v Withers which said that in the absence of a specific provision then there could be no recovery of expenses incurred before a person actually subpoenaed came before the court.

Setting aside subpoena

  • R416 - court may make order setting aside all or part of subpoena.
  • R415 - grounds include want of relevance, privilege, oppressiveness, non-compliance with rules.
  • Even without the specific law, it has been held at common law that can strike out a subpoena as an abuse of process - see Commissioner for Railways v Small [12.5.12C]; In the Marriage of Epstein [12.5.13C]

Commissioner for Railways v Small

- Subpoena issued against the Cmr for Rlys; some of the material which was listed - “all documents, papers reports and correspondence relating directly or indirectly to this action”; “all documents, papers reports and correspondence relating directly or indirectly to falls from electric trains”; “all documents, papers reports and correspondence relating directly or indirectly to complaints about the running of electric trains”.

Held: @573-574 Jordon CJ, “when a subpoena for production is addressed to a stranger to the proceedings, it must specify with reasonable particularity the documents that are required to be produced, it cannot merely require the person issued with the subpoena to search for and produce all such documents which he or she may have in his or her possession or power relating to a particular subject matter.” Can get it set aside! He also said that exactly the same will apply if the same is issued to a party to the proceeding. Use disclosure not a subpoena!

  • If you have a subpoena which you think is too broad; must decide whether to take this action or another - see for example Hill J in Air Pacific Limited v Transport Workers Union of Australia - suggested that legal advisers should talk amongst each other before you apply for the subpoena to be set aside.

Service (within Qld) – r421.

  • R421(1) - may be effected in any of the ways prescribed under chapter 4, parts 2,3,4, and 5.
  • Can use ordinary service as opposed to personal service - eg. post to last known place of business; see r112. This needs to be read with r421.
  • R421(2) - compliance may be enforced only if it is proved subpoena has been received by person to whom it is addressed or that person has actual knowledge of it.
  • So, for practical purposes, really should be personal service; unless the witness is friendly.
  • Service to be effected a reasonable time before trial or hearing; if serving in QLD, that is all that is required. It will depend on the reason for subpoenaing, distance from the court, etc.

Service out of Queensland.

  • Effected under Service and Execution of Process Act 1992 (Cth).
  • s29 SEPA - subpoena may be served in another state and in the same manner as in place of issue. (Same as serving a claim interstate)

BUT

Special Requirements for service under Service and Execution of Process Act. (Div 1)

  1. s29(3) - service of a subpoena outside of QLD is only effective if it contains the address for service of the person (if any - can be issued by the Court) at whose request the subpoena was issued.
  • It is on the new document (see the document in the study guide p 105)
  1. s30(1) - subpoena must be served not less than 14 days before the day on which the person is required to attend or to supply documents; unless court issuing the subpoena orders otherwise (see s30(2))
  • In s30(2) - the court must be satisfied of certain things, if it is going to make an order for service in less than 14 days:
  • The giving of the evidence that is likely to be given by the person to whom the subpoena is addressed or the production of the document or thing is necessary in the interests of justice. (Can be proved - if a shorter time; must be put in affidavit/s which would satisfy the court; including issues, what needs to be proved and how the acceleration of the date would aid in it - give enough, but not too much see eg in SG)
  • Must be enough time to comply without hardship or serious inconvenience.
  • There must be enough time for the person to make an application for relief from the subpoena (see s33).
  • The court can specify that it not be served after a particular date OR any other conditions it thinks are appropriate.
  • s31 - copy of prescribed notice to be attached - form 2.
  • Also reflects a statement of claim.
  • If order allows less than 14 days notice - copy of order must be attached.
  • ss32,35 - tender of expenses.

Service under the Service and Execution of Process Act 1992.

  • s33 - Applies when the person served with the subpoena, has a right to set aside or obtain another relief in respect of the subpoena. It provides additional modes for making of application to set aside or obtain other relief in respect of subpoena. (Can be made by fax, telephone, video-link, etc.)
  • S34 - Relates to subpoenas for the production of documents - it can be complied with by delivering it to the registrar or the clerk of the court without any attendance of the person to whom the subpoena is addressed (i.e. relaxed requirements for compliance with subpoenas requiring only production of documents).
  • Note - the SEPA then goes on to talk about specific examples of special classes of persons and subpoenas - eg. prisoners, etc.

Subpoenas - General

  • Process for admitting into evidence documents produced on subpoena. The service of a subpoena for production does not necessarily get the documents into evidence.

National Employers Mutual General Association v Waind [12.5.15C]

Moffat P. outlined the steps that are involved in producing and tendering documents that are brought to court under subpoena. Said that it was a three pronged process:

1)the obeying of the subpoena - bringing the documents to court and handing them to the judge. (At this point, the person can make an application to have the subpoena set aside.)

2)the decision of the Judge considering the preliminary use of the documents, including a decision whether or not to allow the parties to inspect them. (Can object here on grounds of privilege - eg. LPP, privilege against self-incrimination, etc.)

3)The admission of the document into evidence in whole or in part.

  • r420 - subpoenas for production only - relaxed requirements in relation to compliance.

Failing to attend on subpoena

  • r414 - person subpoenaed must comply.
  • r422 - (reflects the common law principle) failure to comply without lawful excuse, is contempt of court.
  • rr901,902 - enforcement generally; will also apply if a person (or a corp) fails to comply with a subpoena; therefore, can have them arrested and dragged before the court.
  • Possible liability for damages to the person on whose behalf the subpoena was issued. (Small amount of common law authority on this point) There will not be much, apart from costs!

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