Summonsing a witness
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Summonsing a witness or document

A summons to witness is a legal document the Tribunal can use to compel a person to attend the Tribunal or produce a document or other material before the Tribunal.

A summons may be issued at the request of a party, or at the initiative of the Tribunal. A party to a proceeding can request a summons if a person is, or may be, unwilling to give evidence or to provide documents to the Tribunal.

The summons generally requires the attendance of the person summoned at the final hearing, the time of which is stated in the summons.

Before you request a summons, you should try to get the required document by asking the person to provide it to you.

A party who is summoned is required by law to comply, and commits a criminal offence if they do not do so.

When should I request a summons to witness?

A summons is usually directed at ‘third parties’ – people other than the parties to the proceeding.

A summons is not usually directed to the parties to a proceeding, because the Tribunal will usually require the parties to file and give to the other party documents and witness statements during the normal course of the proceeding.

Where a party desires that documents sought from a third party be produced prior to the final hearing, the party should seek an order under s 35(1) of the State Administrative Tribunal Act 2004. This may be appropriate where, for example, a large number of documents are expected, or when you expect the documents to be particularly important for the proceedings.

What is a document?

A document is anything in writing. It doesn’t just include documents such as contracts, invoices and letters. It can also include information which is stored electronically, such as emails, SMS messages and web pages.

It is not a question of how information is recorded. The important question is whether the information is relevant to the proceeding.

How do I apply for a summons to witness?

A party seeking the issue of a summons to witness should submit a copy of the Summons to Witness form to the Tribunal, and pay the fee under Schedule 20 of the State Administrative Tribunal Regulations 2004

The Tribunal will consider whether your draft summons to witness is suitable to be issued. If the Tribunal issues your summons, we will notify you that the summons to witness is available to be collected. It is then your responsibility to ‘serve’ the summons on the witness.

If your draft summons is not considered suitable, you will be notified accordingly.

Serving a summons to witness

‘Serving’ a document is giving it to the person it is addressed to. If the Tribunal issues the summons you requested, you must ‘personally serve’ it on the person it is addressed to.

Rule 31 of the Tribunal's Rules provides the requirements for personal service. If you are serving a summons to witness on a natural person (not a corporation etc), the summons to witness is personally served by physically giving a copy to the person, or leaving it with them and explaining the document if they do not accept it. The Rules also deal with service on a corporation, unincorporated association and natural persons not of full legal capacity, and what to do if someone refuses to accept the summons to witness.

The party relying on the summons to witness must also serve a copy of the summons to witness on the other party to the proceeding as soon as practicable after it is served on the person to whom it is directed.

If necessary, proof of service of a summons to witness may be given by completing a Declaration of Service form. This may be necessary where a witness has been served with a summons to witness, but fails to appear before the Tribunal.

A party serving a summons to witness is required to provide the person being served with ‘conduct money’, which will usually includes travel expenses, and sometimes accommodation, meal and incidental expenses. Practice Note 11 - Conduct Money on Summoning of Witnesses explains what Conduct Money is, and how to calculate the appropriate amount of conduct money to be provided.

What to do if you receive a summons to witness

If you are served with a summons to witness and are prepared to attend the hearing, produce requested documents, or both, you should do so at the nominated time and date. In the case of production of documents, they can be delivered to the Executive Officer or SAT reception, on the 6th Floor, 565 Hay Street, Perth, up to 48 hours prior to the time and date on the summons to witness).

If a person served with a summons to witness considers there are grounds to have a summons set aside, or to limit access to any document, they may make an application at the hearing related to the summons. This application can be made orally. The party should be ready to give evidence or produce documents, to the extent reasonable, or produce documents, in the event that its application is unsuccessful.

What happens to summoned documents?

The documents can be accessed by the parties to the proceedings. They will be held by the Tribunal until their release is ordered, or until the proceedings are finalised and the appeal period has expired.

Last updated: 15-Aug-2017

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