Application by the Attorney General of New South Wales

[2020] NSWSC 1007

Supreme Court

New South Wales

Medium Neutral Citation:

Application by the Attorney General of New South Wales [2020] NSWSC 1007

Hearing dates:

31 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

See paragraph 9

Catchwords:

EVIDENCE – evidence on commission – where request from High Court for England and Wales – whether the form of subpoena proposed infringes s 33(6) Evidence on Commission Act 1995 (NSW)

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW) s 7

Evidence on Commission Act 1995 (NSW) ss 32, 33, 33(6)

Family Law Act 1975 (Cth)

Cases Cited:

British American Tobacco Australia Services Ltd v Eubanks for the United States of America (2004) 60 NSWLR 483; [2004] NSWCA 158

Category:

Procedural and other rulings

Parties:

Attorney General for the State of New South Wales (Applicant)

Representation:

Counsel:
H. Atkin (Applicant)

Solicitors:
Crown Solicitors Office (Applicant)

File Number(s):

2020/219833

Publication restriction:

Under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) the name of "D" not to be published

Revised extempore Judgment

1. I am dealing with an application by the Attorney General for New South Wales for the exercise of the Court's powers under ss 32 and 33 of the Evidence on Commission Act1995 (NSW) to render assistance to obtain evidence available in the State in aid of civil proceedings in the United Kingdom. The application has been made by a summons filed on 20 July 2020, which has come before me urgently as the Duty Judge.

2. Mr Atkin of counsel appears for the Attorney General and moves on the affidavit of his instructing solicitor, Gemma Clare Namey affirmed on 27 July 2020. Mr Atkin has also provided me with an admirable set of written submissions from which I derived a great benefit. I hope he will think it no great discourtesy if I do not go through all of the matters covered in that comprehensive document or necessarily all of the matters discussed orally.

3. Suffice it to say for the reasons he advances I am satisfied that the preconditions to the exercise of the Court's power, specified by s 32 of the Act, have been satisfied. That is to say that I am satisfied that an application is made by the Attorney General in pursuance of a request made by the Senior Master of the Queen's Bench Division of the High Court for England and Wales. That Court, of course, satisfies the statutory description of a Court exercising jurisdiction of a place outside New South Wales. I am also satisfied that the evidence to which the application relates is to be obtained for the purpose of proceedings which have been instituted before the requesting Court. Those proceedings relate to child access or custody proceedings in the Family Division of the High Court which are pending.

4. I am satisfied that there is evidence available in New South Wales given that the father, who is the plaintiff in those proceedings, is a resident of New South Wales and that the child, his son, was apparently born here. However, the evidence sought consists of records kept and obtained by the Commissioner of Police relating to, it would seem on the face of the request, alleged incidents of domestic violence between the father and a domestic partner which the child is, at least on one instance, said to have witnessed. A number of incidents are described which is unnecessary for me to set out in detail in these reasons. The incidents of domestic violence perpetrated by the father not witnessed by the child would, of course, be relevant to any question involving the child's welfare as to whether access should be granted either in the United Kingdom or on the basis that the child could be with his father for periods here in Australia.

5. In any event, much of the assistance Mr Atkin has provided relates to whether the provisions of s 33(6) are infringed by the form of subpoena proposed. Section 33(6), in general terms, prohibits an order being made requiring a person to provide discovery of documents. I accept Mr Atkin's submission that the appropriate test for the production documents available by an exercise of the Court's powers under s 33 is provided by analogy with the restrictions normally observed in relation to subpoenas to produce documents issued to third parties.

6. In that regard, although it may be that the form of the drafting relating to the documents described in the schedule to the proposed subpoena may arguably run afoul of some of the law on the topic, to which Mr Atkin has referred me to from United Kingdom Courts, I am satisfied that what is proposed would pass through the eye of the needle applied in this Court, generally, in terms of the degree of specificity required in the drafting of subpoenas to produce documents. Having said that I acknowledge that the general approach to be taken to the interpretation of our domestic legislation should treat the decisions of foreign Courts on cognate legislation giving effect to the applicable international convention as authoritative in accordance with what Spigelman CJ said in British American Tobacco Australia Services Ltd v Eubanks for the United States of America (2004) 60 NSWLR 483; [2004] NSWCA 158 at 494-495.

7. For those reasons and I am persuaded that it is appropriate for me to exercise the Court's power under s 32 by giving effect to the Senior Master's request by permitting by order the issue of a subpoena for the production of the documents directed to the Commissioner of Police more or less in the form attached to the affidavit of Ms Namey.

8. That document will have to be re-engrossed, not so far as the schedule is concerned, but in relation to the formal parts including a return date, a last date for service and the like.

9. For those reasons, I make the following orders:

1. Under s 33 of the Evidence on Commission Act1995 (NSW) the plaintiff have leave to file and serve on the Commissioner of Police for New South Wales a subpoena having a schedule in the form annexed as annexure C to the affidavit of Gemma Clare Namey of 27 July 2020.

2. The solicitor for the plaintiff to obtain from the Registry at the time of filing the subpoena for sealing a date for the return of documents and an endorsement as to the last day for service.

3. All documents produced to the Court on return of the subpoena by the Commissioner of Police are to be marked by the Registrar for identification and authenticated with the seal of the Court and be produced to the plaintiff upon the undertaking of the plaintiff's solicitor that the documents will be forwarded to the Senior Master of the Queen's Bench Division, High Court for England and Wales, Royal Courts of Justice, Strand, London WC2A2LL, England.

4. All questions of access to the documents so produced are reserved to the judge presiding in the proceedings in the Family Division of the High Court.

5. Under s 7 of the Court Suppression and Non-Publication Orders Act2010 (NSW) the name of "D" not to be published anywhere in the Commonwealth of Australia in connection with this proceeding prior to 10 October 2031 on the ground that the making of this order is necessary in the public interest and that public interest significantly outweighs the public interest in open justice.

10. I should just add I have made the last order for the protection of the child. I accept Mr Atkin's submission that such orders are made in respect of family proceedings in the United Kingdom and I assume would likewise arise under the Family Law Act 1975 (Cth) in this country. It seems appropriate that I should exercise my powers under the State legislation to continue that protection here.

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Decision last updated: 03 August 2020