ORDER 11.-EVIDENCE.

Division 1.-Summonses to Give Evidence.

1. Interpretation of Division 1. (37/1)

In this Division, unless the contrary intention appears -

person named means, in relation to a summons, the person to whom the summons is addressed;

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;

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.

2. Power to issue. (37/2)

The Court may, in any proceedings, issue a summons to give evidence or a summons for production as 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.

3. Conduct money. (37/3)

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 not later than a reasonable time before that day.

4. Production by non-party. (37/4)

(1) Where the person named in a summons for production of any document or thing, being a summons requiring attendance before the Court or officer of the Court, is not a party to the proceedings, the summons shall, unless the Court otherwise orders, permit him to produce the document or thing to the Registrar or his delegate at his office at the place stated in the summons not later than the day before the first date on which his attendance is required, instead of attending and producing the document or thing as required by the summons.

(2) Where a document or thing is produced to a clerk under Sub-rule (1) the clerk shall -

(a) give a receipt to the person producing the document or thing; and

(b) produce the document or thing as the nature of the case requires or as the Court may direct.

(3) This Rule does not apply to so much of a summons as requires the person named to attend to give evidence in any proceedings.

5. Issue. (37/6)

(1) On request by a party, the Registrar shall, unless the Court otherwise orders, issue a summons to give evidence or a summons for production or a summons both to give evidence and for production.

(2) A summons shall be issued under seal.

(3) Unless the summons is issued in the Registry, the issuing officer shall subscribe on it the place of issue.

(4) Subject to Sub-rule (5), a party requesting the issuing of a summons shall file with the issuing officer a copy of the proposed summons and produce a form of the summons.

(5) Where a party requests the issue of several summonses to give evidence in similar terms but addressed to different persons, he need file only one copy, but that copy must contain the name of each person to whom any of the summonses is addressed.

(6) Unless the summons is issued in the Registry, the issuing officer shall note the date of issue on the copy filed with him and shall send the copy to the Registrar.

(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.

6. Service. (37/7)

(1) Service of a summons shall be effected in accordance with this Rule and not otherwise.

(2) Service of a summons may be effected by handing it to the person named.

(3) If, on tender of a summons to the person named, 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 in a summons is a party and has a solicitor in the proceedings, the summons may, with the consent of the solicitor, be served on the person named by leaving it at the solicitor's address for service.

7. Setting aside. (37/8)

(1) The Court may, on motion by the person named in a summons, set aside the summons wholly or in part.

(2) Notice of a motion under Sub-rule (1) must be filed and served on the party on whose request the summons was issued.

Division 2.-Evidence by Deposition.

8. Order for examination of witness. (27/1)

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.

9. Letter of request. (27/2)

(1) On the making of an order under Rule 8(b) for the sending of a letter of request, the party obtaining the order shall -

(a) lodge with the Registrar -

(i) a form of the appropriate letter of request; and

(ii) the interrogatories (if any) and cross-interrogatories\ (if any) to accompany the letter of request; and

(iii) where English is not an official language of the country\ to whose judicial authorities the letter of request is to be sent, a translation of each of the documents mentioned in Sub-paragraphs (i) and (ii) in an official language of that country appropriate to the place where the evidence is to be taken; and

(b) file -

(i) a copy of each of the documents mentioned in Paragraph (a); and

(ii) an undertaking by the party obtaining the order or his solicitor to be responsible for all expenses incurred by the Court or by any person at the request of the Court in respect of the letter of request and, on being given notice of the amount of any such expenses, to pay the amount to the Registrar.

(2) A translation lodged under Sub-rule (1)(a)(iii) must be certified by the person making it to be a correct translation and the certificate must state his full name and address and his qualifications for making the translation.

10. Documents for examiner. (27/3)

(1) The party obtaining an order for examination before an examiner under Rule 8(a) shall furnish the examiner with copies of such of the documents in the proceedings as are necessary to inform the examiner of the questions to which the examination is to relate.

(2) Where the documents in the proceedings are not sufficient to inform the examiner of the questions to which the examination is to relate the Court shall, in the order for examination or in a later order, state the questions to which the examination is to relate.

11. Appointment for examination. (27/4)

(1) The examiner shall appoint a place and time for the examination.

(2) The time appointed shall, having regard to the convenience of the person to be examined, and to the circumstances, be as soon as practicable after the making of the order.

(3) The examiner shall give notice of an appointment under this Rule to the party obtaining the order and that party shall, not less than three days before the time appointed, give notice of the appointment to each other party.

12. Conduct of examination. (27/5)

(1) The examiner shall permit each party, his counsel and solicitor to attend the examination.

(2) Subject to this Division, the proceedings before the examiner shall be in accordance with the procedure of the Court.

(3) The examiner may administer an oath or affirmation.

(4) A person examined before an examiner may, unless the Court otherwise orders, be cross-examined and re-examined.

(5) The examination, cross-examination and re-examination of a person before an examiner shall, unless the Court otherwise orders, be conducted in like manner as at a trial.

(6) The examiner may put any question to a person examined before him as to-

(a) the meaning of any answer made by that person; or

(b) any matter arising in the course of the examination.

(7) The examiner may adjourn the examination from time to time or from place to place.

13. Examination of additional persons. (27/6)

The examiner may, with the written consent of each party to the proceedings, examine any person in addition to the person named or provided for in the order for examination, and, if he does so, he shall annex to the deposition of that person the consent of each of the parties.

14. Objection. (27/7)

Where objection is taken to a question put to a person being examined before an examiner, or a person being so examined takes objection to answering a question put to him or to produce any document or thing-

(a) the examiner shall state to the parties his opinion on, but shall not decide, the validity of the ground for the objection; and

(b) the question, the ground for the objection, the opinion of the examiner, and the answer (if any) must be set out in the deposition of that person or in a statement attached to the deposition; and

(c) the Court may, on motion by any party, decide the validity of the ground for the objection; and

(d) if the Court decides against the objector, the Court may order him to pay the costs occasioned by the objection.

15. Taking of deposition. (27/8)

(1) The deposition of a person examined before an examiner must be taken down by the examiner or a shorthand writer or some other person in the presence of the examiner.

(2) The deposition must contain as nearly as may be the statement of the person examined.

(3) The examiner may direct that the words of any question and the answer to the question be set out in the deposition.

(4) Subject to Sub-rules (2) and (3) and Rule 14(b) the deposition need not set out every question and answer.

16. Authentication and filing. (27/9)

(1) The deposition of a person examined (or the shorthand notes of his examination) shall be read to him.

(2) The examiner shall, if any party so requests, ask the person examined to sign his deposition.

(3) The examiner shall authenticate the deposition by his signature.

(4) The examiner shall make on, or attach to, the deposition a note signed by him of the time occupied in the examination and the fees received by him in respect of the examination.

(5) The examiner shall send the deposition to the Registrar and the Registrar shall file it in the proceedings.

(6) The examiner shall, unless the Court otherwise orders, send the exhibits to the Registrar and the Registrar shall deal with the exhibits in such manner as the Court may direct.

17. Special report. (27/10)

(1) The examiner may make to the Court a special report with regard to an examination before him and with regard to the absence of any person from, or the conduct of any person at, the examination.

(2) The Court may direct such proceedings to be taken, or make such order, on the report as the Court thinks fit.

18. Default of witness. (27/11)

(1) Where a person has been required by a summons to attend before an examiner, and he refuses to be sworn or affirmed for the purposes of the examination or to answer any lawful question, or to produce any document or thing, the examiner shall, at the request of any party, give to that party a certificate, signed by the examiner, of the refusal.

(2) The Court may, on the certificate being filed, and on motion by any party-

(a) order that person to be sworn or affirmed, or to answer the question or to produce the document or thing, as the case may be; and

(b) order that person to pay any costs occasioned by his refusal.

19. Order for payment of expenses. (27/12)

Where a party has given an undertaking as mentioned in Rule 9(1)(b)(ii) and does not, within seven days after service on him of notice of the amount of the expenses concerned, pay the amount of the expenses to the Registrar, the Court may, on application by the Registrar-

(a) order the party to pay the amount of the expenses to the Registrar; and

(b) stay the proceedings until payment so far as concerns the whole or any part of any claim for relief by that party.

20. Perpetuation of testimony. (27/13)

(1) Witnesses shall not be examined to perpetuate testimony unless proceedings have been commenced for the purpose.

(2) Any person who would, in the circumstances alleged by him to exist, become entitled on the happening of any future event to any property, the right or claim to which cannot be tried before the happening of the future event, may commence proceedings to perpetuate any testimony which may be material for establishing the right or claim.

(3) Proceedings to perpetuate the testimony of witnesses shall not be set down for trial.

(4) Where proceedings to perpetuate testimony touch any matter or thing in which the State may have an interest, the Attorney-General may be made a defendant.

(5) Where, pursuant to Sub-rule (4) the Attorney-General is made a defendant to proceedings to perpetuate testimony, a deposition taken in those proceedings shall not be inadmissible in other proceedings by reason that the State was not a party to the proceedings to perpetuate testimony.

(6) Sub-rule (2) does not affect the right of any person to commence proceedings to perpetuate testimony in cases to which that Sub-rule does not apply.

Division 3.-Affidavits.

21. Time for swearing. (38/1)

An affidavit for use in any proceedings may be sworn before or after the commencement of the proceedings.

22. Affidavit. (38/2)

(1) An affidavit shall be made in the first person.

(2) The body of an affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.

(3) Where it appears to the person before whom an affidavit is sworn that the deponent is illiterate or blind, he must certify in or below the jurat that -

(a) the affidavit was read in his presence to the deponent; and

(b) the deponent seemed to understand the affidavit.

(4) Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with Sub-rule (3) does not appear on the affidavit, the affidavit may not be used unless the Court is satisfied that the affidavit was read to the deponent and that he seemed to understand it.

(5) Each page of an affidavit shall be signed by the deponent and by the person before whom it is sworn.

(6) An affidavit shall be in Form 50.

23. Alterations. (38/3)

(1) Where there is any interlineation, erasure or other alteration in the jurat or body of an affidavit-

(a) the affidavit may nevertheless be filed, unless the Court otherwise orders; but

(b) the affidavit may not be used without the leave of the Court unless the person before whom the affidavit is sworn initials the alteration and, in the case of an erasure, re-writes in the margin of the affidavit any words or figures written on the erasure and signs or initials them.

(2) Sub-rule (1) applies to an account verified by affidavit as if the account were part of the affidavit.

24. Annexures and exhibits. (38/4)

(1) A document to be used in conjunction with an affidavit shall, where convenient, be annexed to the affidavit.

(2) Where annexure is inconvenient, the document may be made an exhibit to the affidavit.

(3) An exhibit to an affidavit must be identified by a certificate entitled in the same manner as the affidavit and made by the person before whom the affidavit is sworn.

25. Irregularity. (38/5)

(1) An affidavit may, unless the Court otherwise orders, be filed notwithstanding any irregularity in form.

(2) An affidavit may, with the leave of the Court, be used notwithstanding any irregularity in form.

26. Filing. (38/6)

An affidavit may not be used without leave of the Court unless it has been filed.

27. Service. (38/7)

(1) A party intending to use an affidavit shall serve it on each other interested party a reasonable time before the occasion for using it arises.

(2) The Court may give directions concerning the service of affidavits.

28. Scandal, etc. (38/8)

Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the Court may order that -

(a) the matter be struck out; or

(b) the affidavit be taken off the file.