Witnesses are often outside Papua New Guinea — a foreign supplier, an overseas expert, a former employee who has left the country. The National Court Rules 1983 provide two routes, and the choice between them turns mainly on whether the witness is willing.
Order 11 Rule 8
The Court may, for the purpose of proceedings in the Court, make orders —
(a) in Form 47 for the examination of any person on oath before an officer of the Court or before such other person as the Court may in Form 48 appoint as examiner at any place whether in or out of Papua New Guinea; or
(b) in Form 49 for the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.
| Consideration | Examiner abroad — r 8(a) | Letter of request — r 8(b) |
|---|---|---|
| Witness willing? | Must be — there is no compulsion abroad | Not necessarily — the foreign court may compel |
| Who conducts it | An examiner appointed by the National Court | The foreign judicial authorities |
| Procedure | In accordance with the procedure of the Court — r 12(2) | That of the foreign country |
| Cross-examination | As at a trial — r 12(4), (5) | As the foreign procedure allows; interrogatories and cross-interrogatories are lodged |
| Speed | Faster | Slower — transmission through official channels |
| Cost | Examiner’s fees, travel | Foreign court fees, translation; an undertaking is required |
Where the witness will co-operate, use an examiner — it is quicker, the examination follows familiar procedure, and cross-examination and re-examination take place as at a trial. Where the witness will not, a letter of request is the only route, because the National Court cannot compel attendance abroad.
The Rule 8(a) route
The Court appoints an examiner in Form 48. The party obtaining the order furnishes the examiner with copies of such documents in the proceedings as are necessary to inform him of the questions to which the examination is to relate — and where those are insufficient, the Court shall state the questions.
The examiner appoints a place and time, as soon as practicable and having regard to the witness’s convenience; the party obtaining the order must give each other party not less than three days’ notice.
Each party, his counsel and solicitor may attend. The examiner may administer an oath or affirmation, and the witness may be cross-examined and re-examined, in like manner as at a trial.
Under Rule 14, an examiner shall state his opinion on, but shall not decide, the validity of an objection. The question, the ground, the examiner’s opinion and the answer are recorded, and the Court may, on motion by any party, decide the validity — with costs against an objector who is wrong.
The Rule 8(b) route
Lodge with the Registrar — the letter of request; the interrogatories and cross-interrogatories, if any; and, where English is not an official language of the country, a translation of each, certified by the translator as correct, with his full name, address and qualifications.
File — a copy of each, and an undertaking by the party or solicitor to be responsible for all expenses incurred by the Court or by any person at the request of the Court, and to pay the amount to the Registrar on notice.
The practical drawback of a letter of request is that the questions are settled in advance, in writing, and asked by a foreign judicial officer. There is no opportunity to follow up on an unexpected answer.
So the interrogatories and cross-interrogatories must be drafted with care, anticipating the answers. This is quite unlike cross-examination.
And the undertaking has consequences: under Rule 19, non-payment within seven days of notice of the amount allows the Court to order payment and to stay the proceedings until payment.
Raise it at the mention
Under the Listings Rules 2005, the Court considers at the mention the medium and or mode of giving evidence, the number of witnesses the parties wish to call and their relevance and necessity, any requirement for translation, and the likely length of time for trial.
At the pre-trial conference the Court will ascertain and confirm the number of witnesses and the length of their evidence, and fix a date or dates for trial.
Taking evidence abroad is slow. An order must be made, an examiner appointed or a letter of request prepared, translations obtained and certified, documents transmitted, and an appointment arranged with three days’ notice to the parties.
A party who raises the need for overseas evidence at the mention can have the timetable built around it. One who raises it a month before trial will be seeking an adjournment — and under the Listings Rules a trial once fixed shall not be adjourned except by leave of the Court upon sufficient cause being shown.
Other ways to get the evidence in
An affidavit. Where the evidence is unlikely to be seriously contested, an affidavit sworn abroad may be accepted. It must comply with Order 11 Division 3 — Form 50, first person, numbered paragraphs, every page signed by the deponent and the person before whom it is sworn.
Admissions. If the facts the overseas witness would prove are not really in dispute, a notice to admit facts under Order 9 Rule 29 may remove the need for the witness altogether — silence for 14 days admits the fact.
The Schedule B statement. Facts agreed in the statement of agreed and disputed facts need no evidence at all.
Documents. Where the witness exists only to produce documents, consider whether a summons for production, discovery, or an admission of authenticity under Order 9 Rule 31 or 32 will serve instead.
Each of these is cheaper and faster than an examination abroad. Reach for Rule 8 when the evidence is genuinely contested and the witness genuinely cannot come.
Sources
- National Court Rules 1983 — O 9 rr 29, 31, 32; O 10 r 9A (Listings Rules 2005 rr 7, 9, 13); O 11 rr 8–20, Div 3; Forms 47–50
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.