36Setting aside Australian subpoenas

#### 36 Setting aside Australian subpoenas (1) On application under section 35, the Australian court may set aside the subpoena in whole or in part. (2) The court must set the subpoena aside if: (a) the subpoena requires the person named to attend at a place in Australia and the court is satisfied that: (i) the person does not have the necessary travel documents and cannot by the exercise of reasonable diligence obtain them within the time permitted for compliance with the subpoena; or (ii) were the person to comply with the subpoena, he or she would be liable to be detained for the purpose of serving a sentence; or (iii) the person is liable to a prosecution, or is being prosecuted for an offence, in Australia; or (iv) the person is liable to the imposition of a penalty in a civil proceeding in Australia (other than a proceeding under the Competition and Consumer Act 2010); or (b) the court is satisfied that the person is subject to a restriction on his or her movements, imposed by law or by order of a court, that is inconsistent with the person complying with the subpoena. (3) Without limiting the grounds on which the subpoena may be set aside, the court may set it aside if the court is satisfied that: (a) the evidence to be given by the person named could be obtained satisfactorily by other means without significantly greater expense; or (b) compliance with the subpoena would cause the person hardship or serious inconvenience; or (c) in the case of a subpoena for production: (i) the document or thing should not be taken out of New Zealand; and (ii) satisfactory evidence of the contents of the document, or satisfactory evidence of the thing, can be given by other means. (4) The court may determine the application without a hearing. (5) However, the court must determine the application with a hearing if any of the following requests the court to determine it with a hearing: (a) the applicant; (b) any person at whose request the subpoena was issued. (6) The applicant and the applicant’s lawyer may appear remotely in a hearing to set aside the subpoena if: (a) the applicant was served, or purportedly served, with the subpoena in New Zealand under this Division; and (b) within the period (if any) prescribed by the regulations, the applicant made a request to the Australian court or tribunal for that remote appearance; and (c) a remote appearance medium is, or can reasonably be made, available. This subsection applies despite Subdivisions A and B of Part 6, but is subject to the rest of Part 6. > Note: Ordinarily, for a person to appear remotely from New Zealand in a proceeding in an Australian court, the person needs the leave of the Australian court or tribunal (see sections 48 and 50).