Application by the Attorney-General for the State of New South Wales under the Evidence on Commission Act 1995

[2016] NSWSC 862

Supreme Court

New South Wales

Medium Neutral Citation:	Application by the Attorney-General for the State of New South Wales under the Evidence on Commission Act 1995 [2016] NSWSC 862
Hearing dates:	22 June 2016
Date of orders:	22 June 2016
Decision date:	22 June 2016
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Order pursuant to s 33 of the Evidence on Commission Act 1995, that Carlos Rozo of 40/2 Francis Road Artarmon New South Wales 2064 be examined. (2) Order pursuant to s 33 of the Evidence on Commission Act 1995, that Carolina Ahumada of 40/2 Francis Road Artarmon New South Wales 2064 be examined. (3) Pursuant to Rule 24.3(2) of the Uniform Civil Procedure Rules 2005, I nominate a registrar of this Court to be the person by whom the examination referred to in orders 1 and 2 is to be conducted. (4)   Order that a copy of those orders, together with the summons in these proceedings and the affidavit of Maureen Harakos filed 11 May 2016, be served upon Mr Carlos Rozo, together with a to attend and give evidence at the examination. (5)   Order that a copy of these orders, the summons and the affidavit of Maureen Harakos filed 11 May 2016, be served upon Carolina Ahumada together with a subpoena to attend and give evidence at the examination. (6)   Direct that the proceedings of the examination are to be transcribed and that all identifying information given by either of the witnesses during the examination, including addresses, telephone numbers or date of birth, be included in the transcript. (7)   Order that, providing the appropriate cost is paid by the applicant or else waived, the transcript of the examination be provided to the plaintiff.
Catchwords:	PRACTICE AND PROCEDURE – civil – application for assistance in obtaining evidence for proceedings in other court – Evidence on Commission Act 1995, s 32
Legislation Cited:	Hague Convention on the Taking of Evidence in Civil and Commercial Matters 1970 Evidence on Commission Act 1995
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	Attorney-General in and for the State of New South Wales (P)
Representation:	Counsel: Ms Mahoney (P) Ex Parte   Solicitors: Crown Solicitors (P)
File Number(s):	2016/145076
Publication restriction:	Not Applicable

EX TEMPORE Judgment

Factual Background

1. At about 3:45pm on 2 April 2010, at the intersection of two streets in the City of Frankfurt am Main in the Federal Republic of Germany, a traffic accident took place. There were apparently three motor vehicles involved: a Mercedes Benz S500, white in colour, a silver VW Golf, and a BMW M6. Mr Carlos Rozo, who presently lives in Artarmon, and Ms Carolina Ahumada, who also lives in Artarmon with Mr Rozo, were witnesses to the accident. They provided handwritten statements to the investigating police noting what they saw and heard.

Proceedings in Germany

2. Civil proceedings have been commenced in the Frankfurt am Main Regional Court, 18th Civil Chamber by the third party liability insurer of the Mercedes Benz motor vehicle against the third party liability insurer and the driver of the BMW M6 motor vehicle.

3. The parties have not been able to resolve their differences and the civil case is proceeding in the Regional Court.

4. On 20 August 2015, Dr Zehnsdorf, a Judge of the Regional Court, made a request that Mr Rozo and Ms Ahumada be examined in this Court, that their evidence be transcribed and that the transcript be transmitted to the Regional Court.

Present Proceedings

5. By a Summons filed on 11 May 2016, the Attorney-General of New South Wales makes application to this Court for the taking of that evidence pursuant to the Hague Convention on the Taking of Evidence in Civil and Commercial Matters 1970 and the provisions of the Evidence on Commission Act 1995.

6. Before I can make the orders sought I am required by s 32 of the Evidence on Commission Act, to be satisfied of three matters. The first is that the application before the Court is made pursuant to a request issued by a court exercising jurisdiction in a place outside New South Wales: s 32(1)(a) of the Evidence on Commission Act. I am satisfied that Frankfurt am Main Regional Court 18th Civil Chamber is a court exercising jurisdiction outside Australia, and accordingly, this requirement is satisfied.

7. Second, I must be satisfied that the evidence to which the application relates is to be obtained for the purposes of proceedings which have been instituted before the Regional Court. It is clear from the material placed before this Court that the proceedings have been commenced in Germany in the Regional Court, and are being pursued. I am satisfied of this requirement: s 32(1)(b) of the Evidence on Commission Act.

8. Third, and finally, I need to be satisfied that the German proceedings do not relate to the commission of an offence, that is to say that the proceedings are civil in nature and they are not criminal proceedings. The material placed before me satisfies me of this fact: s 32(2) of the Evidence on Commission Act.

Conclusion

9. It is appropriate as a general principle that this Court lends its assistance to foreign courts of proper jurisdiction, as doing so fulfils the aims of the Hague Convention and assists in the furtherance of the interests of justice both in Germany and in Australia.

Orders

10. I make the following orders:

1. Order pursuant to s 33 of the Evidence on Commission Act 1995, that Carlos Rozo of 40/2 Francis Road Artarmon New South Wales 2064 be examined.

2. Order pursuant to s 33 of the Evidence on Commission Act 1995, that Carolina Ahumada of 40/2 Francis Road Artarmon New South Wales 2064 be examined.

3. Pursuant to Rule 24.3(2) of the Uniform Civil Procedure Rules 2005, I nominate a registrar of this Court to be the person by whom the examination referred to in orders 1 and 2 is to be conducted.

4. Order that a copy of those orders, together with the summons in these proceedings and the affidavit of Maureen Harakos filed 11 May 2016, be served upon Mr Carlos Rozo, together with a subpoena to attend and give evidence at the examination.

5. Order that a copy of these orders, the summons and the affidavit of Maureen Harakos filed 11 May 2016, be served upon Carolina Ahumada together with a subpoena to attend and give evidence at the examination.

6. Direct that the proceedings of the examination are to be transcribed and that all identifying information given by either of the witnesses during the examination, including addresses, telephone numbers or date of birth, be included in the transcript.

7. Order that, providing the appropriate cost is paid by the applicant or else waived, the transcript of the examination be provided to the plaintiff.

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