New Zealand Acts

TRANS-TASMAN PROCEEDINGS ACT 2010 - SECT 89

89 Failure of witness to comply with subpoena issued in Australian proceeding

1 The High Court may, on receiving a certificate under the seal of the Federal Court stating that a person named in the certificate has failed to comply with an order of subpoena requiring that person to attend as a witness for the purposes of an Australian proceeding, issue a warrant requiring any constable to arrest that person and bring that person before the court.

2 The High Court may, on the appearance of that person before the court, impose a fine not exceeding $1,000, unless the court is satisfied that the failure to comply with the order of subpoena, the onus of proof of which lies with that person, should be excused.

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

a) any matters that were not brought to the attention of the Federal Court if the High Court is satisfied that—

i) the Federal Court would have been likely to have set aside the order of subpoena if those matters had been brought to the attention of that court; and

ii) the failure to bring those matters to the attention of the Federal Court was not because of any fault on the part of the person alleged to have failed to comply with the order of subpoena or was because of an omission by that person that should be excused; and

b) any matters to which the High Court would have regard if the order of subpoena had been issued by the High Court.

4 For the purposes of this section, but subject to subsection (3), a certificate under the seal of the Federal Court is conclusive evidence of the matters stated in it if the certificate states—

a) that the order of subpoena was issued by that court:

b) that the witness failed to comply with the order of subpoena:

c) the decision of that court, or any orders or findings of fact made by that court, in relation to any application made to that court to have the order of subpoena set aside.

5 Subject to subsection (3), no findings of fact made by the Federal Court on an application to that court to have the order of subpoena set aside may be challenged by any person alleged to have failed to comply with the order unless the court was deliberately misled in making those findings of fact.

Note: 1908 No 89 s 56L

History: Section 89: inserted, on 1 March 2017, by section 8 of the Trans-Tasman Proceedings Amendment Act 2016 (2016 No 70).