Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > Practice and Procedures > Practice Notes > Practice Note Number 21

<< Back to Practice Notes index

Practice Note Number 21

Summons: Guideline

Practice Note for Date:

10/01/2009

ADMINISTRATIVE DECISIONS TRIBUNAL

SUMMONS: GUIDELINE

1. Purpose

The purpose of this Guideline is to provide information about the practice of the Tribunal as it relates to summonses to give evidence or produce documents.

2. Relevant Legislation:

The provisions relating to summonses are set out in s 84 of the Administrative Decisions Tribunal Act 1997 ; rules 20 and 46 of the Administrative Decisions Tribunal Rules 1998; and cl 6 of the Administrative Decisions Tribunal Regulation 2009.

3. Meaning of ‘Summons’

A summons is an official document which requires a person to give evidence at a Tribunal hearing or to produce documents or things to the Tribunal. The term once used to describe such a document was ‘subpoena’.

4. Terms used in this Guideline

‘party’ - an applicant, respondent or other person who has been joined in proceedings before the Tribunal

‘applicant for a summons’ - the party who applies for a summons to be issued or who has been given approval by the Registrar for a summons to be issued

‘recipient of a summons’ - the person to whom the summonsed is addressed

‘objector to a summons’ - the recipient of a summons or another person affected by the summons who objects to the summons

APPLICATION FOR SUMMONS

5. Who can apply for a summons?

A party to an application filed in the Tribunal can ask for a summons to be issued. The Tribunal may also issue a summons itself.

6. Applying for a summons

Before applying for a summons to be issued, the applicant for the summons should ask the person whether he or she is willing to give evidence or provide the documents voluntarily.

7. Summons Application Form

An applicant for a summons must complete an Application for Summons form. The form is available on the internet at http://www.lawlink.nsw.gov.au/lawlink/adt/ll_adt.nsf/pages/adt_index. A copy can also be obtained from the Registry. On this form an applicant for a summons must:

(i) declare that he or she has asked the person to give the evidence or documents voluntarily and set out the person’s response to that request or explain why they have not made that request;

(ii) provide the name of the recipient of the summons;

(iii) in the case of a documents summons, describe the documents sought;

(iv) explain how the evidence or documents sought relate to an issue in dispute in the proceedings; and

(v) post or deliver the application to the Tribunal.

REGISTRAR’S POWERS

8. Approving the issuing of a summons

The Registrar will decide whether or not to approve the issuing of the summons. The Registry will notify the applicant for the summons of that decision.

In some cases, a hearing may be necessary to decide whether to grant an application to issue a summons. If so the parties and, in some cases, the potential recipient of the summons, will be notified. A hearing date and time will be set, either before the Registrar or a Judicial Member.

9. Issuing a summons

If the Registrar approves the issuing of the summons, the applicant for the summons must complete the summons form and annexure and send it to the Registry. The form can be found at http://www.lawlink.nsw.gov.au/lawlink/adt/ll_adt.nsf/pages/adt_index, or obtained from the Registry. The form includes an annexure that provides information to the recipient of the summons.

The applicant for the summons should post or deliver 4 copies of the form to the Registry: one to keep, one to serve on the recipient of the summons, one to send to the other party and one for the Tribunal file. If the recipient of the summons is the other party, then only 3 copies are required.

SERVICE

10. Service Period

The summons form and the annexure must be served on the recipient of the summons by the date and time specified in the summons. The date for service is usually 5 days before the return date on the summons. For the purposes of calculating the 5 days, the date of issue, the date of return, Saturdays, Sundays and public holidays are NOT counted.

11. Method of Service

(i) In order to serve a summons on the recipient, an applicant for a summons may:

deliver it to the person; or

o leave it at the residential or business address of the person; or

o send it by pre-paid post to the residential or business address of the person.

(ii) If the recipient of the summons is a body corporate, an applicant for a summons may:

leave it at the head office, a registered office or a principal office of the body corporate; or

o send it by post to the registered office or a principal office of the body corporate.

(iii) If the recipient of the summons is the administrator (the person or body who has made a reviewable decision) an applicant for a summons may:

leave it with the head of the government agency or the holder of a particular office if that person is identified in legislation as the decision maker; or

send it by post to the head of the government agency or the holder of a particular office if that person is identified in legislation as the decision maker.

12. Witness Expenses

The applicant for a summons must pay the recipient of the summons witness expenses at the time the summons is served.

(i) Where the recipient of the summons is required to give evidence, the amount paid must be sufficient to meet that person's reasonable expenses of complying with the summons (eg travel costs, meals and any other out of pocket expenses). Any other expenses claimed by the person required to attend are to be negotiated directly with the applicant for the summons.

(ii) Where the recipient of the summons is required to produce documents, the amount paid must be sufficient to obtain, reproduce (if necessary) and deliver the document to the Tribunal.

13. Service Outside New South Wales but Inside Australia

A party wishing to serve a summons outside NSW but inside Australia must fill out an "Application for leave to serve summons interstate" and "Summons to give evidence for service interstate". Both forms are available on the internet at http://www.lawlink.nsw.gov.au/lawlink/adt/ll_adt.nsf/pages/adt_forms_fees or from the Tribunal Registry. The application for leave will only be granted if the Tribunal is satisfied that:

(i) the giving of the evidence likely to be given by the recipient of the summons or the production of a document or thing specified in the summons, is necessary in the interests of justice; and

(ii) there will be enough time for the person:

to comply with the summons without hardship or serious inconvenience; and

o to apply to set aside the summons under section

of the

Service and Execution of Process Act

1992 (Cth).

RESPONSIBILITIES OF RECIPIENT OF A SUMMONS

14. Oral Evidence Summons

(i) If the summons is a summons to give evidence, the recipient must come to the Tribunal to give evidence on the date and at the time on the summons.

(ii) If the recipient wishes to be excused from attending, he or she should contact the Registry and the applicant for the summons and explain why he or she cannot attend on that day. If the applicant for the summons still requires the person to attend, he or she should contact the Registry to obtain a ruling from the Judicial Member.

(iii) If the recipient fails to attend and does not provide an explanation, the applicant for the summons will be asked to contact the recipient and tell them that it is an offence to fail to comply with the requirements of a summons without reasonable excuse. The matter may be adjourned or it may be may be referred to a Judicial Member of the Tribunal to be dealt with as contempt.

The Supreme Court determines the appropriate punishment for contempt which can include a fine or other penalty.

15. Document Summons

(i) The recipient of the summons is required to provide the documents or items described in the summons to the Registrar by the date and time specified in the summons.

(ii) If the recipient cannot provide the documents, or wishes to be excused from providing the documents, he or she must tell the Registrar and the applicant for the summons the reasons for non-compliance. Unless otherwise advised, the recipient should attend the Registry at the date and time specified in the summons.

(iii) If the recipient does not comply with the summons, the Registrar will ask the applicant for the summons to contact the recipient and tell them that it is an offence to fail to comply with the requirements of a summons without reasonable excuse. The matter will usually be adjourned to allow the documents to be produced. If there is still no compliance or explanation provided it may be referred to a Judicial Member of the Tribunal to be dealt with as contempt.

OBJECTIONS

16. Objections to the Summons
If the recipient or another person affected by the summons objects to the content of the summons or to access to documents being given, the objector should try to resolve that objection directly with the applicant for the summons.

If the objector is unable to resolve the matter informally, he or she should write to the Registrar and the applicant for the summons setting out the basis for the objection. If the summons is a summons to produce documents or things, the objector should attend the Tribunal on the return date and explain the concern. Objections that can not be resolved by discussion and agreed directions it will be referred to a Judicial Member for decision.

17. Examples of common objections are that:

(i) the evidence sought by the summons is not relevant to any issue in dispute;

(ii) the evidence is privileged from disclosure;

(iii) the summons is not sufficiently precise to identify the documents being sought;

(iv) the summons is oppressive in scope.

OTHER MATTERS

18. Access to Documents

On the return date if there are no objections to any party having access to the documents, the Registrar will make directions about access. The standard access direction is for all parties to have access to the documents to look at and photocopy. If a party to the proceedings believes there may be grounds for objecting to another party having access to the documents, that party can ask for ‘first access’ to the documents. Some examples of where a first access order may be appropriate are when the documents contain legal advice, medical records or personal information relating to a child.

If ‘first access’ is given, that party will be able to look at the documents and decide whether to object to another party having access to some or all of the documents.

19. Restrictions on Circulation of Summonsed Documents

Documents obtained under a summons must only be used for purposes directly connected with the proceedings. Using or publishing the documents for any other purpose, may be a contempt of the Tribunal.

20. Putting Summonsed Documents before the Tribunal
The summonsed documents are held in the Registry and placed with the Tribunal file. In most cases, if a party wants the Tribunal to consider summonsed documents at the hearing, that party must serve those documents on the other parties prior to the hearing and give (‘tender’) those documents to the Tribunal during the hearing. The Tribunal will admit the documents into evidence even when they have not been served on the other parties if the hearing has been arranged urgently or if there is another legitimate reason why the documents have not been served.

Issued 1 October 2009

Previous Page | Back to Lawlink Home | Top of Page

Last Updated 11 August 2011

Hosted by