Application by the Attorney General in and for the State of New South Wales under ss 32 and 33 of the Evidence on Commission Act 1995
[2015] NSWSC 1160
•07 August 2015
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Application by the Attorney General in and for the State of New South Wales under ss 32 and 33 of the Evidence on Commission Act 1995 [2015] NSWSC 1160 Hearing dates: 7 August 2015 Decision date: 07 August 2015 Jurisdiction: Common Law Before: Button J Decision: See paragraphs 20 and 21.
Catchwords: EVIDENCE – application under the Evidence on Commission Act 1995 (NSW) – civil proceedings on foot in Republic of Korea – applicant seeking production of documents – leave to issue and serve subpoenas to produce – Registrar appointed as examiner Legislation Cited: Evidence on Commission Act 1995 (NSW), ss 32(1), 32(1)(a), 32(1)(b), 32(2), 33(1), 33(2), 33(3)(b), 33(4), 33(5), 33(6), 33(7),
Uniform Civil Procedure Rules (2005) (NSW), rr 24.9, 24.11, 24.14Category: Principal judgment Parties: Attorney General in and for the State of New South Wales (Plaintiff)
Ex parteRepresentation: Counsel:
Solicitors:
G F Mahony (Plaintiff)
Crown Solicitor’s Office (Plaintiff)
File Number(s): 2015/216227
ex tempore Judgment
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In an application by the Attorney-General of New South Wales pursuant to the Evidence on Commission Act 1995 (NSW) (the Act), it is established by Pt 52.1 of the Uniform Civil Procedure Rules 2005 (NSW) that the plaintiff is indeed the proper applicant, and secondly that such an application is able to be made ex parte.
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A large number of orders are sought in a summons that was filed on 23 July 2015. In a nutshell, what is sought is that two subpoenas be able to be issued in order to facilitate a civil dispute in a court in the Republic of Korea.
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The affidavit of Ewa Pardey is read today. It sets out the entirety of the background. I shall not summarise it, except to the extent that I work through the matters of which I need to be satisfied by way of the Act.
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It can be seen from s 32(1) that an application can be made to the Supreme Court, as has been done.
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It can be seen that, pursuant to s 32(1)(a), one of the facts of which I need to be satisfied is that the application is made in pursuance of a request issued by a court exercising jurisdiction in a place outside the State.
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As I said, there is evidence before me that there has been a request made by the Central District Court of Seoul in the Republic of Korea, which is outside New South Wales of course.
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Looking at s 32(1)(b), there is a requirement that proceedings in the foreign jurisdiction are either on foot or contemplated. The fact is the proceedings are on foot. The evidence establishes, to state things very succinctly, that it is a civil dispute about contracts.
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It can be seen that the issue contained in s 32(2) has no application, because these are not proceedings pertaining to an alleged offence. As I said a moment ago, there is a civil dispute.
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Pursuant to s 33(1), I am empowered to make the orders sought if I regard them as appropriate, and I should say at this stage that I am well satisfied that they are soundly appropriate in all the circumstances.
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It can be seen that, by way of s 33(2) of the Act, the orders can be specific, including ordering specified persons to do things. To the extent that the orders do that, again I am satisfied that they are appropriate. It can be seen that the orders sought are in a nutshell that subpoenas issued out of this court be returnable to an examiner, and that a Registrar be appointed as that examiner.
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With regard to those documents, it has been explained that those steps have been sought really for abundant caution: it is not expected that there will be any difficulty, but if there were to be it would be convenient, I have been told, to have an examiner in place to determine anything such as a claim of client legal privilege with regard to what has been subpoenaed. I accept that it would be appropriate to have a particular person appointed, just to make sure that everything goes smoothly.
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What is sought falls soundly within s 33(3)(b), namely an order for the production of documents.
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It can also be seen that s 33(4) means that I cannot order things to be done that cannot be done in proceedings in this Court. It goes without saying that the Supreme Court has the power to issue subpoenas in pending proceedings.
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It can be seen that s 33(5) has no application, because there is not an application for examination of any person on oath.
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It can also be seen that no prohibition contained in s 33(6) is applicable, because what is sought is not in the nature of some sort of compulsory statement of discovery, as envisaged in 33(6)(a).
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Nor is there any problem about the subpoenas being unduly broad, which is envisaged as a prohibiting matter in s 33(6)(b). Quite the contrary: the subpoenas are drawn specifically, both with regard to chronology and also with regard to subject matter.
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Finally, with regard to s 33(7) there is no question of conduct money, because there is no question of attendance of any person. My understanding is that, pursuant to the subpoenas the documents can simply be forwarded to the Court.
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To my mind, both in a general sense and in a particular sense, in terms of compliance with all the essential pre-conditions contained in the Act, the orders sought should be made. In particular, I think there is force in the proposition that orders 6, 7 and 8 should be made, on the off-chance that there is any difficulty.
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I have been assured by counsel for the applicant that making those orders will not impose any unduly onerous administrative tasks upon an otherwise busy Registrar.
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I make orders 1 to 5 contained the summons of 23 July 2015, and I make orders 7 to 9 contains in the summons filed 23 July 2015.
[ORDERS MADE]
1. An order under s 33(1) of the Evidence on Commission Act 1995 for the production of documents by Ausgrid Pty Ltd (ACN 060 979 688).
2. An order under s 33(1) of the Evidence on Commission Act 1995 for the production of documents by Snowy Hydro Limited (ACN 090 574 431).
3. The plaintiff have leave to issue and serve a subpoena to produce documents to the proper officer of the person identified at Order 1, in the form attached as Annexure A to this Summons.
4. The plaintiff have leave to issue and serve subpoena to produce documents to the proper officer of the person identified at Order 2, in the form attached as Annexure B to this Summons.
5. That at the time of service of the subpoena described in Order 2 above, a copy of the following be provided to the said Ausgrid and Snowy Hydro Limited:
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Order of the Court providing for the issue and service of subpoena,
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This Summons; and
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The Affidavit of Ewa Pardey sworn 22 July 2015.
7. That the plaintiff be permitted to approach the examiner to appoint a date for the return of the subpoena and for the hearing of any objection in accordance with r 24.9 and r. 24.11 of the Uniform Civil Procedure Rules 2005.
8. An order for the proceedings of the examination hearing to be transcribed and that such transcripts be signed and certified and authenticated in accordance with the Uniform Civil Procedure Rules 2005 r 24.14.
9. An order that the transcript be provided to the plaintiff.
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Order 6 will be as follows.
6. An order appointing a Registrar of this Honourable Court as examiner for the purpose of receiving documents produced in response to the subpoena referred to in Orders 3 and 4 above and the hearing of any objection in accordance with r 24.9 ("the examination hearing") and r. 24.11 of the Uniform Civil Procedure Rules 2005.
[ANNEXURES A AND B NOT INCLUDED IN JUDGMENT.]
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Amendments
19 August 2015 - [20] Order 5(c) date of affidavit amended
Decision last updated: 19 August 2015
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