Plain language law

New Zealand law explained for everyone

Evidence Act 2006

Evidence from overseas or to be used overseas - Proceedings in Australia and New Zealand - Service of and compliance with Australian subpoenas in New Zealand

165: Failure of witness to comply with Australian subpoena

You could also call this:

"What happens if you don't follow a subpoena from an Australian court"

Illustration for Evidence Act 2006

If you get a subpoena from an Australian court, you have to follow it. The High Court in New Zealand can help make this happen. If you do not follow the subpoena, the Australian court can send a certificate to the High Court saying you did not comply.

The High Court can then issue a warrant to arrest you and bring you to court. You might have to pay a fine of up to $10,000 if you do not have a good reason for not following the subpoena. The court will decide if your reason is good enough.

The court will think about things that you did not tell the Australian court when they gave you the subpoena. They will also think about things that would be important if the subpoena came from the High Court in New Zealand. A certificate from the Australian court is enough proof that you did not follow the subpoena, unless you can show that you actually did follow it.

If the Australian court made a decision about your subpoena, you usually cannot challenge that decision in the New Zealand court. You can only challenge it if the Australian court was deliberately given wrong information. You can find more information about this by looking at the Trans-Tasman Proceedings Act 2010.

This text is automatically generated. It might be out of date or be missing some parts. Find out more about how we do this.

This page was last updated on

View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM394258.

Topics:
Crime and justice > Courts and legal help
Previous

164: Compliance with Australian subpoena, or

"What to do if you get an Australian subpoena in New Zealand"

Next

166: Transmission of documents or things to Australian court, or

"Sending documents to an Australian court when they ask for them"

Part 4Evidence from overseas or to be used overseas
Proceedings in Australia and New Zealand: Service of and compliance with Australian subpoenas in New Zealand

165Failure of witness to comply with Australian subpoena

  1. The High Court may, on receiving from the Australian court which issued the Australian subpoena a certificate stating that the witness has failed to comply with the subpoena, issue a warrant requiring any member of the Police to arrest the witness and to bring him or her before the High Court.

  2. The High Court may, on the appearance of the witness before the court, impose a fine not exceeding $10,000 unless the court is satisfied that the failure to comply with the subpoena should be excused.

  3. In determining whether the failure to comply with the subpoena should be excused, the High Court may have regard to—

  4. any matters that were not brought to the attention of the Australian court that granted leave to serve the subpoena, if the High Court is satisfied that—
    1. the Australian court would have been likely to have set aside the subpoena if those matters had been brought to the attention of that court; and
      1. the failure to bring those matters to the attention of the Australian court was not due to any fault on the part of the witness or was due to an omission of the witness that should be excused; and
      2. any matters to which the High Court would have regard if the subpoena had been issued by the High Court.

        1. For the purposes of this section, a certificate under the seal of an Australian court stating—

        2. that leave to serve the subpoena was granted by a Judge of a court of judicature within Australia; and
          1. that the witness failed to comply with the subpoena—
              1. is sufficient evidence of the matters stated in it unless the witness establishes to the satisfaction of the High Court that the witness did in fact comply with the subpoena.

            1. Without limiting subsection (3), no finding of fact made by the court of judicature within Australia referred to in subsection (4)(a) on an application to have the subpoena set aside may be challenged by any person alleged to have failed to comply with the subpoena unless the court was deliberately misled in making those findings of fact.

            Compare
            Notes
            • Section 165(4)(a): amended, on , by section 10(1) of the Trans-Tasman Proceedings Act 2010 (2010 No 108).
            • Section 165(5): amended, on , by section 10(1) of the Trans-Tasman Proceedings Act 2010 (2010 No 108).