Summons to Witness (Form 18)

Rule 102 of the Magistrates Court (Civil Division) Rules 1998 (Tas) lets a party file a summons in an approved form requiring a witness to attend a trial to give evidence or produce evidentiary material. A registrar issues the summons (r 102(2)), and the party filing it must serve it on all other parties at least 4 days before the date the witness is to attend (r 102(3)). The summons itself must be served on the witness personally (r 40(2)). Form 18 is the approved form; it warns the witness that they may be arrested and brought to court if they do not obey, and has an affidavit of service on the back. A witness who attends is entitled to the witness fees and expenses in Schedule 2 (r 104), and the court's witness page says that in civil cases the parties, not the Court, pay those expenses.

When you need it

• A witness you need at trial will not come voluntarily, or needs a summons to get time off work.
• Someone holds documents you need produced at the trial, such as records of a business or bank.
• For criminal matters the court has a separate summons form; Form 18 is for the Civil Division.

1. 1

   Heading

   Enter the registry, its address, the action number and the claimant and defendant.

2. 2

   Witness

   Give the full name and address of the witness, so they can be found and personally served.

3. 3

   Attendance

   Insert the court, day, date and time the witness must attend, matching the trial listing.

4. 4

   Documents to produce

   If documents are wanted, describe them specifically (type, dates, account or file numbers). The form adds 'all other related documents' in the witness's possession, custody or power. Delete or leave blank if evidence only.

5. 5

   Issue and footer

   Leave the date and registrar's signature for the registry, and complete the 'filed by' footer with your address for service.

6. 6

   Affidavit of service

   After serving the witness, the server completes the affidavit on the form (where, date, time) and swears it before a Justice of the Peace.

• File the summons at the registry for the registrar to issue (r 102(1)-(2)).
• Serve the witness personally; a summons may only be served by personal service (r 40(2)). Do not serve on Good Friday or Christmas Day (r 40(4)).
• Serve a copy on all other parties at least 4 days before the attendance date (r 102(3)).
• Prove service by affidavit (r 43), using the affidavit of service on the form.

• Allow time: serving a witness personally can take several attempts, and the 4-day deadline for serving the other parties is a minimum.
• Talk to the witness about their reasonable costs. Witness fees and expenses are set by Schedule 2 (r 104), and in civil cases the parties pay them, though you may recover them from the other party if you win (court's civil disputes page).
• If the evidence is not likely to be disputed, consider serving the witness's affidavit at least 14 days before trial instead; if no one objects within 7 days, the witness need not attend (r 101).
• Tell the witness the hearing details are on the summons and to contact you if they become ill or an emergency arises (court's witness page).