Chairperson's Directions CTTT CD2004-3

Summons to Attend and Give Evidence
Summons to Attend and Produce Documents or other things

These directions have effect from 1 July 2004.

1.0 Introduction

1.1 These directions are issued pursuant to section 12 of the Consumer, Trader and Tenancy Tribunal Act 2001 (‘the Act’) and set out the procedures which are to apply to summonses issued by the Tribunal.

2.0 What is a summons?

2.1 A summons is an official document issued by the Registrar bearing the seal of the Tribunal which requires a person to:

(i) attend and give evidence before the Tribunal; or
(ii) to attend and give evidence or produce documents or other things to the Tribunal, or
(iii) both.

2.2 The Tribunal or Registrar may issue a summons in the Strata and Community Schemes Division to give evidence and to produce any books, documents or writings specified in the summons that are in the person’s custody or control.

3.0 Who can request a summons?

3.1 In the Strata and Community Schemes Division only the following person may request the issue of a summons:

(a) a person whose application or appeal is being dealt with by the Tribunal; or
(b) a person given notice by the Registrar of any such application or appeal; or
(c) the agent of any such person.

3.2 In any other Division, only a party to the proceedings may request the Registrar to issue a summons (the requesting party).

3.3 The Tribunal may also direct the Registrar to issue a summons where it considers necessary.

3.4 More often than not the evidence can be obtained co-operatively without the need to request a summons.

4.0 What you need to do to request a summons

4.1 The requesting party must provide the details required by Form 1 in Schedule 2 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (clause 31(4) (‘the Regulation’).

4.2 Copies of this form are available on request from the Registry and appear on the Tribunal’s website at: www.cttt.nsw.gov.au

4.3 Where the summons is directed to a particular business the person named should be the employer not the employee. Where it is a partnership all members of the partnership should be named rather than one individual member. In the case of a company it is usual practice to name the company and address the summons to the “proper officer” of that company. As a company cannot attend to give evidence it is appropriate to name the relevant company officer who is required to give evidence.

4.4 In most civil proceedings the summonsed person is usually a third party or stranger to the proceedings. As there is no procedure in the Tribunal for one party to require the other party to produce documents, a summons may be issued for this purpose.

4.5 The requesting party must pay the prescribed fee.

5.0 The issuing of a summons

5.1 The summons issued by the Registrar must be signed by the Registrar, any Member of the Tribunal, a Deputy Registrar or a person authorised in writing by the Registrar (s.40(3) of the Act and 31(2) of the Regulation). It will bear the seal of the Tribunal and a return date.

5.2 Where a summons to produce documents is issued by the Registrar the Registrar will forward to the non-requesting party notice of that summons and the return date so that they may come and inspect the documents.

6.0 The return date

6.1 The term “return date” refers to the date on which compliance with a summons is required. The Registrar sets the return date.

Summons to attend: In the case of a summons to attend and give evidence the return date is the date of the hearing before the Tribunal.

Summons to produce documents and/or things: In the case of a summons to produce documents and other things the return date is usually before the hearing so that the parties have access to the documents in time to prepare for the hearing.

6.2 In some cases where there has been a directions hearing the Tribunal will specify the return date for the summons to produce documents, to fit in with the timetable set at that directions hearing. This date may have to be altered by the Registrar depending on hearing arrangements.

6.3 Where this has not happened and the matter has been set down for hearing, the summons request should be filed at a Tribunal Registry at least 2 weeks before the hearing date.

6.4 Where the hearing date has not been set the return date will usually be 2 weeks from the date the Registrar issues the summons.

6.5 The legislation requires the person named in the summons to be served with the summons 5 clear working days before the date on which they are required to attend to give evidence or attend and produce documents (clause 31(1) of the Regulation). This requirement must be taken into account when setting the return date.

7.0 What to do after the summons is issued

Service
7.1 The party who has requested the summons (the requesting party) must serve the person named in the summons personally or in the case of a company by ordinary post to the company’s registered office or by leaving a copy with a person apparently 16 years of age at the company’s registered office (clause 50 of the Regulation).

7.2 A summons may be served both within and outside the State (s.40(6) of the Act). The process for doing this is outlined in sections 56 to 63 of the Service and Execution of Process Act 1992 (Clth) (‘SEPA Act’). The Tribunal, Registrar or Deputy Registrar must expressly give leave for the summons to issue under section 57 of the SEPA Act. Leave will only be granted to serve a summons outside the State if the person giving leave is satisfied the giving of the evidence and/or production of documents or things is necessary in the interests of justice, there will be enough time for the person to comply with the summons without inconvenience, or to ask for relief from compliance with the summons. A summons served outside the State must be accompanied by a copy of Form 5 of the SEPA Act, provided by the Tribunal.

7.3 A person must be served at least 5 clear working days before the return date, that is the date specified in the summons on which they are required to attend to give evidence or produce documents. There is discretion to allow the service to be shortened but this will be used sparingly and in accordance with the principles of fairness and equity.

7.4 There is no time frame set for minimum time for service of a summons issued in the Strata and Community Services Division.

Payment of witness expenses
7.5 When the party requesting the summons serves the summons on the person named in the summons, reasonable expenses of complying with the summons must be given to that person (clause 32(2) the Regulation; s196(5) Strata Schemes Management Act 1996 ).

7.6 Where the person named is required to produce documents the amount must be sufficient to obtain, copy and if necessary deliver the documents to the Tribunal.

7.7 Where a summons is issued at the request of a party, before the appointed day of the return of summons, the witness or person producing documents must be given an amount in respect of the reasonable expenses of complying with the requirements of the summons. For example, a person summonsed to appear and give evidence is entitled to expenses such as travel costs, food requirements, and out of pocket expenses.

7.8 Where a summons is issued at the request of the Tribunal, witnesses are entitled to be paid at the same rate as witnesses who give evidence in District Court criminal proceedings (clause 32(1) & (2) of the Regulation).

8.0 Compliance with a Summons

8.1 The person named in the summons must comply with that summons unless they have some legal objection to compliance.

Summons to give oral evidence in person
8.2 The person named in the summons must come to the Tribunal to give evidence on the date and at the time specified in the summons.

Summons to produce documents or other things
8.3 The person named in the summons must produce the documents on the return date or may produce them to the Registrar at the address specified in the summons any time before the return date (s.40(4) of the Act and clause 30(3) of the Regulation).

8.4 The documents should be produced in a sealed envelope with a copy of the relevant summons attached to that envelope. Where this is not possible the documents may be produced in a folder or binder with the relevant summons securely attached to the front.

8.5 The Registrar will issue a receipt to the summonsed party acknowledging receipt of the documents.

9.0 Access to documents and other things produced under summons

9.1 Documents produced under summons are produced to the Tribunal. It is for the Tribunal to determine where and in what circumstances the documents will be made available.

9.2 Where the person named in the summons is a third party it is usual to allow first access to the party who has not requested the summons to inspect the documents in the event that they may have some objection to the documents produced.

9.3 Any party who seeks access and to "uplift", or take away from the Tribunal Registry, the documents in accordance with the access orders is required to sign an undertaking and all uplifted documents must be returned by the date specified in the access orders. Uplift of documents will only be permitted to a person or their representative who is a legal practitioner who has a current practising certificate recognised in New South Wales.

9.4 If the summons is not to be returned at an actual hearing of the Tribunal the matter will be listed before the Registrar or a Deputy Registrar who will sit in public in one of the Tribunal hearing rooms.

10.0 Documents received before the summons return date

10.1 Where the documents are produced to the Registry before the return date there is no need for the parties to attend to obtain access orders to the documents. The Deputy Registrar automatically issues the standard orders for access from within the Registry without the need for any public forum and the parties will be notified of those access orders.

10.2 Usually, first access is given to the non-requesting party for the first 7 days from the date of the access orders and access is given to the requesting party for the following seven days.

10.3 In accordance with the access orders that are automatically issued the parties will attend the Registry to inspect or uplift the documents as the case may be. If parties have not received notice of access orders prior to the date of the return of summons, they should attend the return of summons hearing if they wish to seek access.

10.4 If there is a written objection to compliance with the summons the matter will be listed for argument before a Tribunal Member.

11.0 Documents not received by the summons return date

11.1 Where the documents have not been produced prior to the return date the Deputy Registrar will call on the person named in the summons and ask them their name and address and whether they produce documents in accordance with the summons served on them. Where the documents are produced with no objection the Deputy Registrar will make the appropriate orders as to access.

11.2 Where there has been a failure to comply with the summons but the summonsed party appears and reaches some agreement with the issuing party the Deputy Registrar may extend time for compliance and list another return date.

11.3 Where the person named in the summons attends and objects to the summons or fails to attend and produce the documents without any explanation the Deputy Registrar will adjourn the return of summons and the matter will be listed on a later date before the Tribunal.

11.4 Where there has been no appearance by either the requesting party or the other party to the proceedings and the documents have been produced the documents will be returned to the summonsed party when the matter is finalised, or at the discretion of the Tribunal.

12.0 Objecting to a summons

12.1 The person named in the summons may ask the Tribunal to set the summons aside or restrict the number and type of documents sought if, for example, the summons:

1. has not been requested for a proper forensic purpose, that is, does not go towards proving anything relevant at law
2. is not sufficiently precise,
3. requests documents containing legal advice between legal representative and client,
4. requests documents which are not relevant to the proceedings or compliance with the summons would be oppressive.

12.2 The person named in the summons must appear before the Tribunal on the summons return date or produce the documents or things to the Tribunal. The documents must be produced, whether the person wishes to make an objection after production or if there is no objection.

13.0 Inability to comply with summons

13.1 If the person named in the summons cannot produce the documents because they do not exist or that person no longer has them in their possession they must inform the Registrar in writing and notify the requesting party prior to the return date.

13.2 If the person named in a summons to give oral evidence cannot attend on the required date they should forward their written reasons to the Registry and the requesting party before that date and the matter will be referred to the Chairperson.

14.0 Failure to comply with a summons

14.1 A person who fails without lawful excuse to comply with the requirements of the summons is guilty of an offence and may be found guilty of contempt of the Tribunal (s.42(1)(a) & (b) and (5) of the Act).

14.2 The Chairperson or Deputy Chairperson (Determinations) may issue a warrant for their apprehension (s.41(2) of the Act).

15.0 Return of Documents

15.1 At the conclusion of the proceedings when the Tribunal makes final orders an order will usually be made for the return of documents to the persons who were summonsed and produced them.

15.2 Where no such order is made the Registrar will return those documents after the appeal period has expired.

15.3 The Registrar will require a receipt from that person acknowledging that they have received the documents.

Kay Ransome
Chairperson
22 June 2004

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