ORDER
39
EVIDENCE BY DEPOSITION: EXAMINERS
OF THE COURT
Power to order depositions to be taken (O. 39, r.
1)
1.
—(1)
The
Court may, in any cause or matter where it appears necessary for
the purposes of justice, make an order in Form 73 for the examination
on oath before a Judge or the Registrar or some other person, at
any place, of any person.
(2)
An order under paragraph (1) may be
made on such terms (including, in particular, terms as to the giving
of discovery before the examination takes place) as the Court thinks
fit.
Where person to be examined is out of jurisdiction
(O. 39, r. 2)
2.
—(1)
Where
the person in relation to whom an order under Rule 1 is required
is out of the jurisdiction, an application may be made —(a)
for an order in Form 74 under that
Rule for the issue of a letter of request to the judicial authorities
of the country in which that person is to take, or cause to be taken,
the evidence of that person; or
(b)
if the government of that country
allows a person in that country to be examined before a person appointed
by the Court, for an order in Form 75 under that Rule appointing
a special examiner to take the evidence of that person in that country.
(2)
An application may be made for the
appointment as special examiner of a Singapore consul in the country
in which the evidence is to be taken or his deputy —(a)
if there subsists with respect to
that country a Civil Procedure Convention providing for the taking
of the evidence of any person in that country for the assistance
of proceedings in the High Court; or
(b)
with the consent of the Minister.
(3)
An application under this Rule can
only be made in the High Court even if the proceedings are commenced
in the Subordinate Courts.
Order for issue of letter of request (O. 39, r. 3)
3.
—(1)
Where
an order is made under Rule 2 for the issue of a letter of request
to the judicial authorities of a country to take, or cause to be
taken, the evidence of any person in that country, paragraphs (2)
to (6) shall apply.
(2)
The party obtaining the order must
prepare the letter of request and file it in the Registry, and the
letter must be in Form 76 with such variations as the order may require.
(3)
If the evidence of the person to be
examined is to be obtained by means of written questions, there
must be filed with the letter of request a copy of the interrogatories
and cross-interrogatories to be put to him on examination.
(4)
Unless the official language, or one
of the official languages of the country in which the examination
is to be taken is English, each document filed under paragraph (2)
or (3) must be accompanied by a translation of the document in the
official language of that country or, if there is more than one
official language of that country, in any one of those languages
which is appropriate to the place in that country where the examination
is to be taken.
(5)
Every translation filed under paragraph
(4) must be certified by the person making it to be a correct translation;
and the certificate must contain a statement of that person’s
full name, of his address and of his qualifications for making the
translation.
(6)
The party obtaining the order must,
when he files in the Registry the documents mentioned in paragraphs
(2) to (5), also file in the Registry an undertaking in Form 77
signed by him or his solicitor to be responsible personally for
all expenses incurred by the Minister in respect of the letter of
request and, on receiving due notification of the amount of those
expenses, to pay that amount to the office of that Minister and
to produce a receipt for the payment to the proper officer of the
Registry.
Enforcing attendance of witness at examination (O.
39, r. 4)
4.
Where
an order has been made under Rule 1 —(a)
for the examination of any person
before the Registrar or some other person (referred to in this Rule
and Rules 5 to 14 as the examiner); or
(b)
for the cross-examination before the
examiner of any person who has made an affidavit which is to be
used in any cause or matter,
the attendance of that person before
the examiner and the production by him of any document at the examination
may be enforced by subpoena in like manner as the attendance of
a witness and the production by a witness of a document at a trial
may be enforced.
Refusal of witness to attend, or to be sworn, etc.
(O. 39, r. 5)
5.
—(1)
If
any person, having been duly summoned by subpoena to attend before the
examiner, refuses or fails to attend or refuses to be sworn for
the purpose of the examination or to answer any lawful question
or produce any document therein, a certificate of his refusal or
failure, signed by the examiner, must be filed in the Registry,
and upon the filing of the certificate the party by whom the attendance
of that person was required may apply to the Court for an order
requiring that person to attend, or to be sworn or to answer any
question or produce any document, as the case may be.
(2)
An application for an order under
this Rule may be made ex parte.
(3)
If the Court makes an order under
this Rule it may order the person against whom the order is made
to pay any costs occasioned by his refusal or failure.
(4)
A person who wilfully disobeys any
order made against him under paragraph (1) is guilty of contempt
of Court.
Appointment of time and place for examination (O.
39, r. 6)
6.
—(1)
The
examiner must give the party on whose application the order for
examination was made a notice appointing the place and time at which,
subject to any application by the parties, the examination shall
be taken, and such time shall, having regard to the convenience
of the persons to be examined and all the circumstances of the case,
be as soon as practicable after the making of the order.
(2)
The party to whom a notice under paragraph
(1) is given must, on receiving it, forthwith give notice of the
appointment to all the other parties.
Examiner to have certain documents (O. 39, r. 7)
7.
The
party on whose application the order for examination before the
examiner was made must furnish the examiner with copies of such
of the documents in the cause or matter as are necessary to inform
the examiner of the questions at issue in the cause or matter.
Conduct of examination (O. 39, r. 8)
8.
—(1)
Subject
to any directions contained in the order for examination —(a)
any person ordered to be examined
before the examiner may be cross-examined and re-examined; and
(b)
the examination, cross-examination
and re-examination of persons before the examiner shall be conducted
in like manner as at the trial of a cause or matter.
(2)
The examiner may put any question
to any person examined before him as to the meaning of any answer
made by that person or as to any matter arising in the course of
the examination.
(3)
The examiner may, if necessary, adjourn
the examination from time to time.
Examination of additional witnesses (O. 39, r. 9)
9.
The
examiner may, with the written consent of all the parties to the
cause or matter, take the examination of any person in addition
to those named or provided for in the order for examination, and
must annex such consent to the original deposition of that person.
Objection to questions (O. 39, r. 10)
10.
—(1)
If
any person being examined before the examiner objects to answer
any questions put to him, or if objection is taken to any such question,
that question, the ground for the objection and the answer to any
such question to which objection is taken must be set out in the
deposition of that person or in a statement annexed thereto.
(2)
The validity of the ground for objecting
to answer any such question or for objecting to any such question
shall be decided by the Court and not by the examiner, but the examiner
must state to the parties his opinion thereon, and the statement
of his opinion must be set out in the deposition or in a statement
annexed thereto.
(3)
If the Court decides against the person
taking the objection, it may order him to pay the costs occasioned
by his objection.
Taking of depositions (O. 39, r. 11)
11.
—(1)
The
deposition of any person examined before the examiner shall be recorded
under Order 38A, Rule 1 (1) but, subject to paragraph (2) and Rule
10 (1), the deposition taken under Order 38A, Rule 1 (1) (b)
need not set out every question and answer so long as it contains
as nearly as may be the statement of the person examined.
(2)
The examiner may direct the exact
words of any particular question and the answer thereto to be set
out in the deposition if that question and answer appear to him to
have special importance.
(3)
[Deleted by
S 310/2005]
(4)
The official record of hearing or
transcript of the official record of hearing, as the case may be,
authenticated by the signature of the examiner before whom it was taken,
must be sent by the examiner to the Registry and shall be filed
therein.
Time taken by examination to be endorsed on depositions
(O. 39, r. 12)
12.
Before
sending any deposition to the Registry, the examiner must endorse
on the deposition a statement signed by him of the time occupied
in taking the examination and the fees to be paid in respect thereof.
Special report by examiner (O. 39, r. 13)
13.
The
examiner may make a special report to the Court with regard to any
examination taken before him and with regard to the absence or conduct
of any person thereat, and the Court may direct such proceedings
to be taken, or make such order, on the report as it thinks fit.
Order for payment of examiner’s fees (O.
39, r. 14)
14.
—(1)
If
the fees and expenses due to an examiner are not paid, he may report that
fact to the Court, and the Court may make an order against the
party, on whose application the order for examination was made,
to pay the examiner the fees and expenses due to him in respect
of the examination.
(2)
An order under this Rule shall not
prejudice any determination on the taxation of costs or otherwise
as to the party by whom the costs of the examination are ultimately
to be borne.
Perpetuation of testimony (O. 39, r. 15)
15.
—(1)
Witnesses
shall not be examined to perpetuate testimony unless an action has
been begun for the purpose.
(2)
Any person who would under the circumstances
alleged by him to exist become entitled, upon the happening of any
future event, to any honour, title, dignity or office, or to any
estate or interest in any real or personal property, the right or
claim to which cannot be brought to trial by him before the happening
of such event, may begin an action to perpetuate any testimony which
may be material for establishing such right or claim.
(3)
No action to perpetuate the testimony
of witnesses shall be set down for trial.