Papua New Guinea practice does not use the word “subpoena”. Order 11 Division 1 of the National Court Rules 1983 speaks of a summons to give evidence and a summons for production.
Rule 1
“person named” means, in relation to a summons, the person to whom the summons is addressed.
“summons to give evidence” means an order in writing requiring the person to attend as directed by the order for the purpose of giving evidence.
“summons for production” means an order in writing requiring the person named to attend as directed by the order and produce a document or thing for the purpose of evidence.
The Court may issue a summons to give evidence or a summons for production, or a summons both to give evidence and for production, in Form 42, 43, 44, 45 or 46, or in such other form as the Court may direct, for the attendance on any trial or other occasion of the person named before the Court, officer, examiner or other person having authority to take evidence.
Rule 5
(1) On request by a party, the Registrar shall, unless the Court otherwise orders, issue a summons to give evidence, a summons for production, or both.
(2) A summons shall be issued under seal.
(4) The party requesting issue shall file with the issuing officer a copy of the proposed summons and produce a form of the summons.
(5) Where several summonses in similar terms but addressed to different persons are requested, he need file only one copy, but that copy must contain the name of each person to whom any of them is addressed.
(7) A copy of the summons filed under this Rule shall not be open to inspection by any person except by leave of the Court.
No leave is needed. The Registrar shall issue on request, unless the Court orders otherwise. Summonses are also a checklist item at the mention, and the Court may issue summonses for witnesses at the pre-trial conference.
Sub-rule (5) saves paperwork where a number of witnesses are being summoned in the same terms.
Sub-rule (7) protects your witness list. The filed copy is not open to inspection except by leave — so the other side cannot simply search the file to discover whom you are calling.
Rule 3 — the condition of attendance
A summons shall not require the person named to attend or produce any document or thing on any day on which his attendance is required unless a sum sufficient to meet the reasonable expenses of the person named of complying with the summons in relation to that day is paid or tendered to him at the time of service of the summons, or not later than a reasonable time before that day.
This is the most commonly overlooked requirement, and it is fatal. A witness who is served without conduct money is not required to attend, and cannot be criticised for staying away.
What is “sufficient” depends on the witness — travel from another province, accommodation, and time away from work. In Papua New Guinea, where a witness may have to fly and stay overnight, the sum can be substantial. Under-paying is the same as not paying.
Note the timing: at the time of service, or a reasonable time before the day of attendance. Money handed over at the courthouse door is too late.
Compare Order 3 Rule 3, which imposes the same requirement for discovery before suit, and Order 3 Rule 4, which lets the Court order the applicant to make good expense or loss exceeding the sum paid.
Rule 6 — and no other way
(1) Service of a summons shall be effected in accordance with this Rule and not otherwise.
(2) Service may be effected by handing it to the person named.
(3) If, on tender, he refuses to accept it, the summons may be served by putting it down in his presence after he has been told of the nature of the summons.
(4) Where the person named is a party and has a solicitor, the summons may, with the consent of the solicitor, be served by leaving it at the solicitor’s address for service.
“And not otherwise” excludes post, email, and service on a relative. The methods in Rule 6 are the only ones.
Sub-rule (3) mirrors Order 6 Rule 3(1) for a witness who will not take the document: put it down in their presence, having told them the nature of the summons. Depose to all of it.
Sub-rule (4) is the one concession, and it depends on the solicitor’s consent.
Rule 7
(1) The Court may, on motion by the person named in a summons, set aside the summons wholly or in part.
(2) Notice of the motion must be filed and served on the party on whose request the summons was issued.
The application is made by the person named — the witness — not by the opposing party. A witness who objects has standing in their own right.
Common grounds: the evidence sought is privileged; the summons is oppressive; it is a fishing expedition; no conduct money was paid; or it is being used against a party to circumvent discovery.
Note “wholly or in part”: the Court may narrow a summons rather than discharge it — commonly by cutting down the categories of documents required.
A summons is an order in writing, as Rule 1 states. Disobedience, where conduct money was paid and service was properly effected under Rule 6, is punishable as contempt under Order 14 Division 6. Prove service and payment before making any such application.
Sources
- National Court Rules 1983 — O 3 rr 3, 4; O 6 r 3; O 10 r 9A (Listings Rules 2005 rr 7(4)(p), 9(2)(g)); O 11 rr 1–7, Div 2; O 14 Div 6; Forms 42–46
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.