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

[2016] NSWSC 1086

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 the Evidence on Commission Act 1995 [2016] NSWSC 1086

Hearing dates:

08 August 2016

Decision date:

08 August 2016

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) Pursuant to s 33(3) of the Evidence of Commission Act 1995 (NSW), Mr Sathia Ung of 9/88 Koonoona Avenue, Villawood NSW 2163 (“Mr Ung”) is to be examined.

 

(2) A copy of this Order, the Summons and Affidavit in Support is to be served on Mr Ung with a Subpoena to Attend to Give Evidence.

 

(3) The Registrar of this Honourable Court is appointed as Examiner to conduct the examination of Mr Ung under rule 52.2 of the Uniform Civil Procedure Rules 2005.

 (4) The proceedings of the examination of Mr Ung are to transcribed and a copy for the transcription provided to the plaintiff.

Catchwords:

EVIDENCE ON COMMISSION – order for examination of a person sought under s 33 of the Evidence on Commission Act 1995

Legislation Cited:

Hague Convention on the Taking of Evidence in Civil and Commercial Matters 1970
Evidence on Commission Act 1995 (NSW), ss 32, 33

Cases Cited:

British American Tobacco Australian Services Ltd v Eubanks for the United States of America and Ors [2004] NSWCA 158; 68 NSWLR 483

Category:

Procedural and other rulings

Parties:

Attorney-General (Plaintiff) (Ex Parte)

Representation:

Counsel:
G Moore (Plaintiff)

  Solicitors:
NSW Crown Solicitor (Plaintiff)

File Number(s):

2016/00226142

Publication restriction:

Nil

EX TEMPORE Judgment

1. By summons filed on 27 July 2016 the Attorney General in and for the State of New South Wales makes application under s 33 of the Evidence on Commission Act 1995 (NSW) (“the Act”) for the examination of Mr Sathia Ung of Villawood. In support of the application is an affidavit of Leanne Kohler affirmed on 22 July 2016 which sets out certain matters and annexes relevant documents. That material includes the fact that a request has been received from the People's Court of Phu Yen Provence in the Socialist Republic of Vietnam for the examination of that witness.

2. Annexed to the affidavit of Miss Kohler is a letter of request dated 5 May 2016 from the Vietnamese Embassy in Australia on behalf of that requesting Court; a notice of acceptance of the case dated 29 August 2015, both in the English and Vietnamese languages; as well as a document of judicial mandate for a civil case dated 15 September 2015 in English and Vietnamese.

3. The proceedings pertain to a request for a dissolution of marriage. The document entitled, "A Document of Judicial Mandate for a Civil Case", which has been translated from Vietnamese into English indicates that the petitioner, Ms Huin Thi Loan, seeks a dissolution of her marriage with Mr Sathia Ung. That document shows that they were married on 7 January 2009, lived together for one year and then Sathia Ung returned to Australia. Ms Loan still resides in Vietnam and there has been no further contact between them. Ms Loan requests a dissolution of the marriage.

4. The document goes on to state that the People's Court of Phu Yen Provence seeks the competent authorities in Australia assist in relation to this matter. A number of questions are set out in that document regarding the marital relationship, offspring, public assets and debts and other matters relevant to those proceedings in Vietnam.

5. Under the Evidence on Commission Act, there are three prerequisites before this Court would make such an order as sought. 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: see s 32(1)(a) of the Act. The requesting court is defined in s 31 of the Act as a court or tribunal on whose behalf a request is issued. I am satisfied that the request has been made by such a court in that the documentation before me discloses that court to be the People's Court of Phu Yen Provence in Vietnam.

6. The second prerequisite is that the evidence to which the application relates is to be obtained for the purposes of proceedings which have been instituted before the requesting court: see s 32(1)(b) of the Act. The documentation before me shows that proceedings have been commenced for the dissolution of a marriage as between Ms Loan and Mr Sathia Ung.

7. The third prerequisite is that the overseas proceedings do not relate to the commission of an offence: see s 32(2) of the Act which provides that Part 4 of the Evidence on Commission Act does not apply in relation to proceedings relating to the commission of an offence unless the requesting Court is a court of a place in Australia or New Zealand which is clearly not the case here.

8. Mr Moore, who appears on behalf of the Attorney General today, has drawn my attention to the fact that Vietnam is not a country that is a signatory to the Hague Convention, which is the Convention that preceded the enactment of the Evidence on Commission Act. He provided the Court with a copy of the decision of the Court of Appeal in British American Tobacco Australian Services Ltd v Eubanks for the United States of America and Ors [2004] NSWCA 158 reported at 68 NSWLR at 483. He drew my attention to paragraphs 15 to 42 of that decision which provide a background to the relevant statutory provisions. He also submitted that there is nothing in the statutory language in the Act that would preclude such an order being made from a country that is not a signatory to that Convention, in particular having regard to the definition in s 31 of "requesting court".

9. At paragraph 42 of the British American Tobacco Australian Services Limited case there is a summary of some of the relevant factors to be taken into account when making such an order in circumstances where the application is opposed. That is not the case here. However, those principles are helpful.

10. In particular I have regard to the general principle that it is appropriate to lend assistance to foreign courts of proper jurisdiction and that comity requires this Court to view a letter of request issued by a foreign court before it benevolently. I accept it is our duty to assist those courts in arriving at a fair determination of their civil litigation when it is proper for this Court to do so.

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Amendments

16 June 2017 - Typographical error in paragraph [7]

Decision last updated: 16 June 2017