The Commission has a checklist to assist parties meeting the requirements.
A summons (referred to as a subpoena in other jurisdictions) is a formal document and order issued by the Industrial Relations Commission of New South Wales (Commission) that requires a named person to do something, usually to produce particular documents or attend the Commission. The Commission can issue four different types of summonses under section 165 of the Industrial Relations Act 1996 (NSW) (IR Act).
A summons is issued by the Industrial Registrar, or in some circumstances a member of the Commission, in accordance with rule 5.6 of the Industrial Relations Commission Rules 2022 (NSW) (IRC Rules), usually as a result of an application by a party.
Summons are typically sought by solicitors during a case. In most cases, solicitors do not require leave of the Commission to issue a Summons.
Under r 7.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) a party must apply for leave of the Commission before a summons is issued in the following circumstances:
If you are self-represented or have a representative who is not a solicitor, you can apply for leave to issue a summons by:
An incomplete or incorrectly prepared application will not be accepted and will be refused. If time permits, the applicant may be given an opportunity to correct and resubmit the application.
The applicant must set out reasons that support the application, including:
The applicant must complete and submit one of the forms listed below. The form selected will depend on the desired outcome. For example, the applicant must submit IRC 41 – Summons to produce if they want the other party to produce a document.
The documents must include:
The Commission has a checklist to assist parties meeting the requirements.
The application for leave and draft summons should be sent to the registry via email with a request that the documents be brought to the attention of the Registrar.
A summons might be issued where:
It is for the Commission to decide whether to issue a summons. The Commission may reject the application after considering things such as:
The Commission will deal with the application for a summons as soon as practicable, and generally within 48 hours. In some cases, parties may be required to appear before the Commission to decide whether the summons should be issued.
The Commission will notify the applicant in writing about the outcome of the application and provide instructions or directions.
Under r 49.20 of the UCPR, an applicant may seek a review of a Registrar’s decision by filing a Notice of Motion through the NSW Online Registry with an affidavit in support. The documents can be filed by email or in-person if the NSW Online Registry experiences technical difficulties.
A summons must be served in accordance with the UCPR. Generally, that means a summons must be personally served on the person to whom it is directed in accordance with r 33.5 of the UCPR. A copy must also be served onall other parties to the proceedings, even if they are not the summons recipient.
Under r 10.21 of the UCPR, personal service means giving a copy of the summons to the person or, if the person does not accept the copy, by putting the summons down in the person’s presence and telling them about the nature of the document.
If there is a reason the summons cannot be personally served or served by way of agreement between the issuer and the recipient, then the issuing party may seek to issue the summons in an alternative way.
When a summons has been served the applicant becomes the ‘issuing party’; and the person to whom the summons is issued becomes the ‘summons recipient’.
A fee must be paid to the Commission when leave has been granted. The fees can be found on the Commission’s website.
The Commission may order the issuing party pay any reasonable costs incurred by the summons recipient for complying with a summons to produce under r 33.11 of the UPCR.
The issuing party must also provide conduct money to the summons recipient (to give evidence) a reasonable time before the date attendance at the Commission is required. The conduct money must meet the reasonable expenses associated with attending court as required by the summons and returning home.
Under r 33.6 of the UCPR, the summons recipient does not need to comply with the summons to attend to give evidence unless conduct money has been paid or there has been an offer to pay conduct money by electronic means.
Under r 33.6 of the UCPR, the summons recipient must comply with the summons issued. The summons recipient must
The summons recipient can produce a copy of the documents instead of the originals with the consent of the issuing party.
NOTE: a copy means a photocopy, or any electronic form that the issuing party has indicated will be acceptable.
The summons recipient is not required to comply with a summons to give evidence before the Commission unless one of the following has occurred a reasonable time before the date on which attendance is required:
Production of the summons (or a copy of it) and the documents must be produced in accordance with the instructions in the summons. The production of material does not discharge the summons recipient from the obligation to give evidence before the Commission.
The summons recipient or a person with a sufficient interest may object to production or inspection of documents and can apply to have the applications or summons set aside. All parties will be heard on the objection, and the Commission will decide whether to issue the summons.
To do so the objecting party must file a Notice of Motion through the NSW Online Registry with an affidavit in support. The documents can be filed by email or in-person if the NSW Online Registry experiences technical difficulties.
A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence under s 165(4) of the IR Act.
A person will be deemed to not have complied with the requirements of a summons to confer if they leave the conference without the permission of the Member of the Commission presiding in the matter.
Relevance
Relevance means the documents sought should have a logical connection to a fact in dispute and be capable of shedding light on that issue. Relevance is not about whether the material proves a fact outright, but whether it could assist the Commission in determining whether the fact is likely to be true.
Scope
A summons should be specific and as narrow in scope as possible. For example, a request for documents confined to a particular issue, period and person is more specific than a request for all communications sent in in a particular year or range of years.
Privileged documents or communication
Certain documents or evidence which are confidential or legally privileged and may not be required to be produced, or if produced you may not be able to see them. Examples include:
Be sure to identify the correct person who has control or possession of the documents, or who you want to give evidence, and that the contact details are correct. Errors will slow down the process of having the documents produced if the leave is granted.
Before issuing a summons you should try simply asking the person or organisation to provide a specific list of documents and to respond by a certain date. A summons may not be required if the person or organisation complies with the request.
The summons must be served on the other party at least five (5) clear business days before the return date (being the date when the documents are to be produced or the person is required to give evidence before the Commission).
The Commission can decide to issue a summons within five (5) days before the return date (referred to as short service) if requested, and in making that decision will consider:
This information is a summary to assist parties and should be read in conjunction with:
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