160Setting aside of subpoena served in Australia

1. A witness on whom a New Zealand subpoena is served in Australia may apply to the relevant court to set the subpoena aside.

2. The relevant court must set the subpoena aside if—

3. the subpoena requires the witness to attend at a sitting of a New Zealand court and the relevant court is satisfied that—
   1. the witness does not have, and cannot by the exercise of reasonable diligence within the time required for compliance obtain, the necessary travel documents; or
   2. the witness is liable to be detained in New Zealand for the purpose of serving a sentence; or
   3. the witness is liable to prosecution for an offence, or is being prosecuted for an offence, in New Zealand; or
   4. the witness is liable to the imposition of a civil penalty in civil proceedings in New Zealand, not being proceedings for a pecuniary penalty under the Commerce Act 1986; or
4. the witness is subject to a restriction on his or her movements, imposed by law or by order of a court, that would prevent the witness complying with the subpoena.

5. Without limiting subsection (1), the relevant court may set the subpoena aside if it is satisfied that—

6. the evidence of the witness could be obtained satisfactorily without significantly greater expense by other means; or
7. compliance with the subpoena would cause hardship or serious inconvenience to the witness; or
8. in the case of a subpoena that requires a witness to produce documents or things, whether or not it also requires the witness to give oral evidence,—
   1. the documents or things should not be taken out of Australia; and
   2. satisfactory evidence of the contents of the documents or evidence of the things can be given by other means.

9. An application to set aside a subpoena under subsection (1) must be filed in the office of the relevant court in which leave to serve the subpoena was given, together with any affidavit setting out facts on which the applicant relies.

10. The Registrar of the relevant court in which the application is filed must ensure that a copy of the application and any affidavit setting out facts on which the applicant relies is served on the solicitor on the record for the person who obtained leave to serve the subpoena, or if there is no solicitor on the record, on that person.