PRACTICE AND PROCEDURE SERIES ARTICLE 12

AMENDMENTS TO WHEN LEAVE IS REQUIRED TO ISSUE A SUBPOENA UNDER THE UNIFORM CIVIL PROCEDURE RULES 2005 (NSW)

Practitioners should be aware of a recent change to r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW), which deals with the circumstances in which a party to proceedings requires leave of the court before issuing a subpoena. 

Practitioners should note the inclusion of r 7.3(1)(b) and (c) requiring leave before a subpoena can be issued, where:
i)    a party to the proceedings has not entered an appearance; or 
ii)   There is no defendant in the proceedings.

The previous r 7.3 stated:

(1) A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings.

(2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas.

(3) Despite subrule (1), a subpoena may not be issued in relation to proceedings in the Small Claims Division of the Local Court, except by leave of the court, in any circumstances.

The new r 7.3 states:

(1) A subpoena must not be issued in proceedings without leave of the court if—
(a) The party requesting the subpoena is not represented by a solicitor, or
(b) a party to the proceedings has not entered an appearance, or
(c) There is no defendant in the proceedings, or
(d) The subpoena is in relation to proceedings in the Small Claims Division
of the Local Court.

(2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas.

(3) Repealed.

Stay up to date with the latest in construction law with our brand new seminars:

·  Pafburn: The Practical Outcome & Fall Out from the High Court’s Decision
·  Valuing Off-Site Overheads in Construction Disputes

Disclaimer: The statements, analyses, opinions and conclusions in Legalwise Insights are those of the respective authors and not of Legalwise Seminars Pty Ltd which acts only in the capacity as editorial co- ordinator of the content in Legalwise Insights. No part of any article can be regarded as legal or financial advice. Although all care has been taken in the preparation of all articles, readers must not alter their position or refrain from doing so in reliance on any information contained therein. Neither the respective authors nor Legalwise Seminars Pty Ltd accept or undertake any duty of care relating to any part of Legalwise Insights
Liability limited by a scheme approved under the Professional Standards Legislation.

Copyright declaration: the text to this article is extracted from the Security of Payment (NSW) chapter in the Thomson Reuters for the loose-leaf subscription service, Commercial Arbitration Law & Practice, contributed by Vikram Misra.

Vikram Misra

Vikram Misra was admitted as a solicitor in 2012 and called to the NSW Bar in 2015. He maintains a broad commercial practice and is regularly briefed in matters relating to property law and construction law. Vikram has completed a Graduate Diploma in Taxation Law at the University of Sydney in 2015 and a Master of Laws majoring in construction law and contract law at the University of Melbourne in 2016. Vikram is the author of “Security of Payment in the NSW Building & Construction Industry (7th Ed)” (Thomson Reuters). He is also the sole contributing author to “Jacobs, Commercial Damages” (Thomson Reuters) and “Jacobs, McCarthy & Neggo, Injunctions: Law and Practice” (Thomson Reuters). Vikram is also a contributing author to Commercial Arbitration Law and Practice (Thomson Reuters) in the following sections: Domestic Arbitration, International Arbitration, Security of Payment (NSW) and Security of Payment (SA). Vikram is currently a casual academic at Western Sydney University in the subject "Building Law".