Application by Attorney General in and for the State of South Wales

[2022] NSWSC 1236

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Application by Attorney General in and for the State of South Wales [2022] NSWSC 1236

Hearing dates:

9 September 2022

Date of orders:

9 September 2022

Decision date:

09 September 2022

Jurisdiction:

Common Law

Before:

Chen J

Decision:

Orders made in relation to certain persons pursuant to s 33(1) of the Evidence on Commission Act 1995 (NSW)

Catchwords:

CIVIL LAW – ex parte application for orders made under s 33 of the Evidence on Commission Act 1995 (NSW) – whether evidence is to be obtained for the purposes of proceedings which have been instituted before a requesting court – where request made for the purposes of court proceedings brought in the District Court of Krakow

Legislation Cited:

Evidence on Commission Act1995 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

British American Tobacco Australia Services Limited v Eubanks (2004) 60 NSWLR 483

Category:

Principal judgment

Parties:

Attorney General in and for the State of New South Wales (Plaintiff) (ex parte application)

Representation:

Counsel:
P Gaffney (Plaintiff)

Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s):

2022/241746

EX TEMPORE JUDGMENT (REVISED)

1. This is an application made ex parte for orders under s 33(1) of the Evidence on Commission Act 1995 (NSW) (‘the Act’) for the examination of persons in New South Wales for the purpose of assisting court proceedings in Krakow, Poland. Those proceedings are in the District Court of Krakow. In simple terms, the proceedings in that Court are probate proceedings brought by a trustee of the estate of the parents of the two witnesses against whom examination orders are sought.

2. There are a number of preconditions to the making of an order under s 33 of the Act. First, the request by the Court does not nominate a "person" who is to make the application for the order. In those circumstances, the application is to be made, as it is here, by the Attorney General: r 52.1(1) of the Uniform Civil Procedure Rules 2005 (NSW) (‘the UCPR’). On such application, no person is required to be joined as a defendant: r 52.1(2) of the UCPR.

3. Secondly, s 33 of the Act is only engaged if the Court is satisfied that "the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside the State" (s 32(1)(a) of the Act); and, further, that "the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated" (s 32(1)(b) of the Act).

4. I am satisfied that these requirements exist. The request is from the District Court of Krakow and there are proceedings on foot in that Court (case file number VINs346/20/S) before an Assistant Judge: see the affidavit of Carolina Strati sworn 11 August 2022 at p 13.

5. Thirdly, s 32 requires the application to be for "an order for evidence to be obtained in the State". The word "evidence" has been understood to mean "material to prove or disprove facts in issue", as opposed to "material which may lead to the discovery of evidence": British American Tobacco Australia Services Limited v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158 at [33] (Spigelman CJ; Handley and Bryson JJA agreeing).

6. I am satisfied the application is of that kind. The proceedings are brought by a trustee and the proceedings have been specifically described as "confirmation of inheritance acquisition". The questions provided (described as: “a list of questions to be posed”) and the evidence sought to be elicited can fairly be understood as questions that may go to resolving the inheritance of the deceased. In this respect, all that is required is that the Court make a general determination that the questions are of "apparent relevance": Eubanks at [71]-[82] (Spigelman CJ; Handley and Bryson JJA agreeing).

7. Fourthly, the Court can only make orders for steps "that can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court" (s 33(4) of the Act). The orders that are sought are principally for the oral examination of each witness. Orders of that kind may be made in this Court, as s 33(3)(a) of the Act confirms.

8. The Attorney General has submitted that, although the threshold requirements have been met, the Court retains a discretion as to whether to make all or some of the orders sought. I do not need, in the circumstances of this case, to deal with any constructional issues that might arise because there are no discretionary reasons, in my view, which stand against the making of the orders sought, subject to one matter: that is, requiring the witness to sign the transcript of their evidence. The request was made by the District Court of Krakow for the answers to be "recorded and signed by the person in question". The Attorney General, through Mr Gaffney, has expressed doubt as to whether it is within the Court's power to require that a witness sign the transcript. In those circumstances, I will not make that order.

9. Accordingly, I make orders one to four in the Summons.

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Amendments

14 September 2022 - Amendment made to name of Counsel

19 September 2022 - Amendment to catchwords

Decision last updated: 19 September 2022