Section 30 of the Australian Trans-Tasman Proceedings Act 2010 (“the TTPA (Aus)”) provides for the service of a subpoena on a person in New Zealand and sections 29 to 39 set out the details for how that can occur. Sections 163 to 166 of New Zealand‘s Evidence Act 2006 contain the equivalent New Zealand provisions.
Certain requirements must be met to serve an Australian subpoena on NZ Police, and ensuring a proper process is followed allows NZ Police to adequately respond in a timely manner.
Describing the scope of documents sought by subpoena
The subpoena should be as specific as possible and only cover information directly relevant to and of significance to the proceedings. NZ Police’s record-keeping is extensive and complex, and information can be spread across numerous groups or be in archived storage.
Typically, a request for information contained in NZ Police’s electronic National Intelligence Application will likely enable the timely expedition of the most relevant information. For family litigation matters, it is recommend that the subpoena is in the following form:
- Summary list of all occurrences on Police's National Intelligence Application [between certain specified dates]
- Protection order information
- Convictions
- Case Summary Reports {National Intelligence Application narratives) for all family harm incidents [between certain specified dates held in relation to [specified person(s), including their date of birth].
NZ Police may not be able to adequately respond to a subpoena which is unduly wide, so prior contact about the subject matter and scope of the proposed subpoena may be advantageous.
For further inquiries, please email: ministerial.services@police.govt.nz
Leave required
Section 31 of the TTPA (Aus) requires the party issuing the subpoena to seek and obtain leave to serve the subpoena in New Zealand from the appropriate Australian court before service.
When deciding whether to grant leave, the court is required to take into account (under s 31(3)):
- The significance of the evidence to be given, or the document or thing to be produced, by the person named; and
- Whether the evidence, document or thing could be obtained by other means without significantly greatest expense, and with less inconvenience to the person named.
In giving leave, the court can impose any conditions it considers appropriate. The court must impose a condition that the subpoena not be served after a specified day (s 31(4)(a) – and see also timing considerations below).
Timing considerations (and transmission of the material from NZ)
Section 34 of the TTPA (Aus) provides that if the subpoena only requires the recipient to produce a document or thing, it must permit the person named to comply, by producing the document or thing at any registry of the High Court of New Zealand no later than 10 days before the date specified in the subpoena as the date on which the document or thing is required for production in the court or tribunal that issued the subpoena.
In practice, this means that NZ Police ask that any subpoena is served (and the last date for service specified is) at least 24 days before the date required for production in Australia. This allows for a minimum of two weeks for NZ Police to collate and prepare the material and then submit this material to the New Zealand High Court for transmission.
Where the scope of the information required by the subpoena is fairly broad (for example, where documents in hard copy form need to be retrieved), more than five weeks will likely be required.
If the court issuing the subpoena provides an email address where the documents can be sent, this may be the delivery method that the High Court in New Zealand chooses. Whether this is an option may depend on the volume of information and does not impact on NZ Police’s timings above.
Service
Section 32 of the TTPA (Aus) provides that an Australian subpoena must be served in New Zealand in the same way the subpoena would be required to be served under the procedural rules of the relevant Australian court.
Whether service by email will be accepted will depend on the individual facts of the case and prior liaison with NZ Police.
Documents to accompany the subpoena when served
Section 32(2) requires the subpoena to be accompanied by:
- a copy of the order giving leave for the subpoena to be served in New Zealand; and
- a notice in the form prescribed by the regulations or the procedural rules of the issuing Australian court or tribunal that:
(i) sets out the rights and obligations of the person named in relation to the subpoena; and
(ii) includes information about the way in which an application to have the subpoena be set aside may be made.
Types of proceedings Australian subpoenas may be issued in
The subpoena must have been issued in an Australian court and be in a proceeding that is not an excluded family proceeding (s 40 TTPA (Aus)).
An excluded family proceeding is (s 4 TTPA (Aus)):
(a) a proceeding in respect of an application made under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980; or
(b) a proceeding relating to the status or property of a person who is not fully able to manage his or her own affairs.
(see also sections 150 and 151, Evidence Act 2006 (NZ)).
Other matters to note
Please note that:
- The Commissioner of Police is the recipient of the subpoena and the address for service of a physical subpoena is 180 Molesworth Street, Wellington 6011, New Zealand.
- Police do not usually apply conduct costs. However, this could change if the volume of information sought is large. Also, the High Court may and this could be determined by the volume of information requested.
- Section 35 of the TTPA (Aus) allows NZ Police to apply for the subpoena to be set aside under the grounds listed in section 36.
- The service of, and compliance with, Australian subpoenas is covered by sections 163 – 167 of the Evidence Act 2006 (NZ). Section 163 permits the service of Australian subpoenas in New Zealand and requires the subpoena to be accompanied by:
(a) a copy of the order of the Judge of the court of judicature within Australia by whom leave was granted to serve the subpoena in New Zealand; and
(b) a statement setting out the rights and obligations of the witness, including information about the way in which an application may be made to the appropriate Australian court to have the subpoena set aside.
- Section 164 of the Evidence Act 2006 (NZ) requires a witness served with an Australian subpoena to comply except where section 163 is not complied with, travelling allowances are not provided to the witness at the appropriate time, or where the witness is under 18 years old.