The Industrial Relations Commission of New South Wales (Commission) has introduced an ‘Application for Leave to Issue a Summons for Self-Represented Litigants and Lay Representatives’ (application) for parties that do not have a lawyer and must seek leave (permission) to issue a Summons under the Uniform Civil Procedure Rules (UCPR).
The Legislation
Section 165 of the Industrial Relations Act permits parties to issue a Summons requiring a person to attend and either confer, give evidence or produce documents or other things.
A Summons is the equivalent of a Subpoena (see UCPR 33.1) and requires leave of the Court or Commission (see UCPR 7.3) if:
- you are not represented by a solicitor; or
- a party to the proceedings has not entered an appearance; or
- there is no defendant in the proceedings; or
- the Summons relates to the Small Claims Division.
Industrial organisations
- Due to UCPR 7.3 industrial organisations such as unions and employer associations need leave of the Court or Commission before they can issue a Summons if the individual making the application on behalf of the organisation is not a solicitor.
- The application has been designed to assist to make the process of obtaining such leave as straightforward as possible.
If you need leave
You should:
- prepare the Summons in full, including the schedule and proposed return and listing date;
- complete the application;
- email the application and the Summons to the registry, asking for them to be referred to the Registrar for consideration.
Your application
Please complete your application carefully. A Registrar may reject your application if the Summons:
- seeks documents that have no apparent relevance to the facts in issue in the proceedings;
- is unclear or lacks specificity;
- is considered oppressive in nature, for example by calling for production of documents in a date range that significantly exceeds what is relevant to proceedings or where no date range is specified.
Timing
- The Registrar will endeavour to determine your application within five business days from filing.
- If you need your application to be considered urgently or a short service order to be made, you must set out your reasons. You should also address whether the recipient is aware you wish to issue this Summons, and whether they consent to producing material or appearing on a shortened timeframe.
What next?
Upon review of your application the Registrar will:
- grant leave; or
- seek further information from you about the apparent relevance of the documents or about the issues said to be in dispute between the parties; or
- require you to amend the Summons; or
- refuse leave.
If leave is granted
If leave is granted, you will need to file and serve the Summons on all active parties to the proceedings. The Summons will then become enforceable and will be listed in the return of summons list for management by the Registrar.
If you disagree with the decision of the Registrar
A Registrar’s decision may be reviewed by filing a Notice of Motion and supporting Affidavit (see UCPR 49.19 and 49.20).
