3.6.2 Basis for Issuing a Summons

Date Published

Note: This information applies to powers exercised by the Commissioner under Section 210, on or after 15 April 2013.

A summons can only be issued where:

i. the witness has a substantial interest in the proceedings before the Commissioner;

ii. the witness is likely to provide oral evidence of substantial relevance to a matter before the Commissioner;

ii. receiving oral evidence from the witness is necessary or desirable in all the circumstances.

A witness having a “substantial interest” in the proceedings is one having a material stake in the outcome.  This most particularly includes the parties and, in most cases an officer, agent or employee of a body corporate that is a party to proceedings.  A substantial interest is not however necessarily limited to a direct commercial interest.  For example, an inventor, or an expert who has already given documentary evidence in a proceeding, may be considered to have a substantial interest even if not associated with a party.  On the other hand, third parties, including experts who have not previously given evidence in a matter will not be considered to have the requisite interest and are not liable to be summonsed.  

“Likely to provide oral evidence of substantial relevance" means that the evidence of the witness is likely to be of substantial probative value in the determination of a matter before the Commissioner.  This goes beyond evidence that may be merely relevant to the Commissioner’s determination.  It requires a realistic expectation that the witness’ evidence is of such significance that it may be determinative of a matter before the Commissioner.

A witness will only be summonsed where it is clear that a significant benefit will be gained such as where there is evidentiary conflict on a fact that is of substantial relevance in the matter and the Commissioner considers the conflict could be resolved by taking oral evidence.  This is rare in proceedings before the Commissioner.

Unless the matter on which the person is summonsed to give evidence is identified with sufficient particularity for its relevance to be determined, it cannot be the basis for a summons.

A witness may be summonsed whether the person is in or out of the patent area.