2AEvidence in interim or procedural applications

2A Evidence in interim or procedural applications (1) This rule applies only: (a) to evidence other than evidence on an issue at a trial; and (b) where, but for this rule, undue delay or inconvenience would be caused. (1A) On the hearing of an interim or procedural application, evidence in chief must be given by affidavit unless the court otherwise orders. (1B) Subject to these Rules and unless the court otherwise orders, an affidavit is not admissible in evidence at a hearing except: (a) one affidavit by each party; and (c) one affidavit by each witness. (1C) Unless the court otherwise orders, the hearing of an interim or procedural application must not exceed 2 hours. (1D) On the hearing of an interim or procedural application, oral evidence must not be given without the leave of the court. (2) If a statement on information and belief is made: (a) by a deponent in an affidavit; or (b) by a witness being examined orally; and the deponent or witness gives the source and ground of the information, the court may admit the statement despite the statement being hearsay. (3) If: (a) a deponent swears in an affidavit; or (b) a witness being examined orally states; that a document is a copy of an original, the court may admit the document as evidence of the contents of the original even though the original is not produced. 4 Transcript receivable in evidence A transcript of proceedings prepared at the direction of the court may be received in evidence as a true record of the proceedings unless it is shown not to be such a true record. 5 Court may call evidence (1) In proceedings before it, the court may, of its own motion, call any person before it as a witness. (2) Where a person is called under subrule (1), the court may give such directions as to examination and cross-examination as it thinks fit. (3) The court may make such order against a party to the proceedings as to the expense of the attendance of the witness as it thinks fit. 6 Order for examination of witness (1) A court exercising jurisdiction under the Act may, at any stage of proceedings: (a) request the examination of any person upon oath orally or on written questions, before a court exercising jurisdiction under the Act, or an officer of the court at any place in Australia; or (b) order a commission to be issued to a person in Australia authorising that person to take the evidence of any person upon oath. (2) The court receiving the request or the person to whom the commission is issued may give any necessary directions concerning the time, place and manner of such an examination or taking of evidence, including a request that the evidence be taken down in writing, or, if practicable, that the examination or taking of evidence be recorded by videotape, film, sound recording, or other means. (3) The court making the request or issuing the commission may receive in evidence in the proceedings the record so taken on such terms as the court thinks fit. 7 Letters of request (1) If, under the Foreign Evidence Act 1994, an order is made by a court for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person or cause it to be taken, the party obtaining the order must file: (a) 2 copies of a form of the appropriate letter of request; and (b) 2 copies of the specified questions (if any) to accompany the request; and (c) if the English language is not an official language of the country to whose judicial authorities the letter of request is to be sent — 2 copies of a translation of each of the documents mentioned in paragraphs (a) and (b) in a language appropriate to the place where the evidence is to be taken; and (d) unless the court otherwise directs — an undertaking by the party obtaining the order: (i) to be responsible for all expenses incurred by the court, or by the person at the request of the court, in respect of the letter of request; and (ii) on being given notice of the amount of any such expenses, to pay the amount to the Registrar of the filing registry. (2) A translation filed under paragraph (1) (c) must be accompanied by an affidavit of the person making it: (a) verifying that it is a correct translation; and (b) setting out the translator’s full name, address and qualifications for making the translation. (3) On receipt of the documents referred to in subrules (1) and (2) (if applicable), the Registrar must, if satisfied that the documents are appropriate to the purposes of this Order, seal the documents with the seal of the court and transmit them to the Secretary for transmission to the judicial authorities of the other country. 8 Evidence of New Zealand matters If, under Part 6 of the Evidence and Procedure (New Zealand) Act 1994, a party seeks to rely on a fax copy of a document, the party must provide the court with a copy of the fax on white paper that is: (a) of good and durable quality; and (b) capable of receiving ink writing; and (c) the size known as International A4. Order 30A Expert evidence > court expert means an expert appointed by the court under rule 3 of this Order. > expert means a person who has such knowledge or experience of, or in connection with, a question arising in proceedings that his or her opinion on the question would be admissible as evidence, but does not include a family and child counsellor or a welfare officer. > party includes a child’s representative. Division 3 Court experts 3 Appointment of court expert (1) The court may, at any stage of proceedings, on application by a party or of its own motion: (a) appoint an expert as court expert to inquire into and report on any issue of fact or opinion, other than an issue involving questions of law or construction, arising in the proceedings; and (b) give directions to extend or supplement, or otherwise in relation to, any such inquiry or report. (2) A court expert shall be a person agreed upon between the parties or, if agreement is not possible, a person nominated by the court. (3) A direction under paragraph (1) (b) may authorise, and make provision for the conduct of, an experiment or a testing procedure (other than a testing procedure for the purposes of section 69W of the Act) for the purposes of an inquiry or report. 4 Report (1) A court expert shall send the report, together with as many copies of the report as the Registrar directs, to the Registrar at the filing registry for the proceedings. (2) Where the report has been received by the Registrar: (a) the Registrar shall send 2 copies of the report to each of the parties to the proceedings; and (b) the court may: (i) receive the report in evidence; (ii) permit oral examination of the court expert who made the report; and (iii) give such directions as to the future disposition of the report (including any copies of the report) as the court thinks fit. 5 Cross-examination (1) If a party seeks to cross-examine a court expert, the party: (a) must arrange for the attendance of the court expert for cross-examination; and (b) may issue a subpoena commanding the attendance before the court of the court expert. (2) Unless the court otherwise orders, if a party arranges for the attendance of a court expert for cross-examination, the party must pay the reasonable remuneration and expenses of the court expert for the attendance. 6 Remuneration (1) If a dispute arises between the parties in respect of the remuneration and expenses payable to a court expert for: (a) preparing a report; or (b) attending at court; the court must determine the amount to be paid to the court expert. (2) Unless the court otherwise orders, the parties are jointly liable to pay a court expert for the reasonable remuneration and expenses incurred in preparing a report. (3) On application by a party or by a court expert, the court may make an order in the proceedings for payment in or towards discharge of the liability of any party under subrule (2). (4) Subrules (2) and (3) shall not be taken to affect the court’s powers as to costs. 7 Response to evidence of court expert Where a court expert has made a report on an issue, any party to the proceedings may, subject to this Order, adduce the evidence of one other expert on that issue but shall not adduce the evidence of 2 or more other experts except in accordance with Division 4 of this Order. Division 4 Limitation of expert evidence 8 Intention to call 2 or more experts — direction by court (1) A party intending to adduce the evidence of 2 or more experts in relation to the same issue at a hearing in proceedings shall apply to the court for directions. (2) On the application for directions, the court may, subject to subrule (3), give a direction specifying the number of experts who may be called in relation to the same issue by a party to the proceedings. (3) The court shall not give a direction specifying that 2 or more experts may be called by a party in relation to the same issue unless the court is satisfied that there are special circumstances.