Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW)

[2017] NSWSC 810

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2017] NSWSC 810
Hearing dates:	16 June 2017
Decision date:	21 June 2017
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	Orders under s 33(1) of the Evidence on Commission Act 1995 (NSW) in the form of the two short minutes of order documents filed in court on 16 June 2017.
Catchwords:	EVIDENCE ON COMMISSION – two ex parte applications before Court seeking orders under s 33(1) of the Evidence on Commission Act 1995 (NSW) – letters of request from Court of Chancery of Delaware – question of standing under s 52.1 of the UCPR
Legislation Cited:	Evidence on Commission Act 1995 (NSW), ss 32, 33, 34, 35, 36 The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial matters 847 UNTS 231 Uniform Civil Procedure Rules 2005 (NSW), r 52.1, 52.2, 52.3, 52.4, 52.5, 52.6 Supreme Court Rules 1970 (NSW), s 58(1)(a)
Cases Cited:	Application by the Attorney-General in and for the State of New South Wales under the Evidence on Commission Act 1995 [2016] NSWSC 1086 The Application of Jan L. Brodie (Judge of the Circuit Court of Fairfax County, Commonwealth of Virginia, United States of America) v Ex parte Laura E. Dunlop [2013] NSWSC 829 British American Tobacco v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158 Gredd v Arpad Busson [2003] EWHC 3001 Pickles v Gratzon (2002) 55 NSWLR 533 Re Asbestos Insurance Coverage Cases [1985] All ER 716 Re The Hague Convention [2008] SASC 51 Re Westinghouse Electric Corporation Uranium Contract Litigation [1978] AC 547
Category:	Principal judgment
Parties:	Computer Sciences Corporation Eric Pulier and TechAdvisors, LLC
Representation:	Counsel: Mr J Emmett (CSC) Ms K Edwards (Eric Pulier and TechAdvisors, LLC)   Solicitors: Minter Ellison (CSC) Arnold Bloch Leibler (Eric Pulier and TechAdvisors, LLC)
File Number(s):	2017/126795; 2017/143335

Judgment

Introduction

1. On 16 June 2017, two applications came before me seeking orders on an ex parte basis under the Evidence on Commission Act1995 (NSW) (“the Act”). Both applications pertain to proceedings currently on foot in the Court of Chancery of the State of Delaware in the United States of America (“the Delaware Court”). Computer Sciences Corporation (“CSC”) is the plaintiff in those proceedings and Eric Pulier and TechAdvisors LLC are the defendants.

2. The first application is brought by CSC. By way of summons in proceedings 2017/143335, CSC seeks orders pursuant to s 33(1) and 33(3)(a) of the Act that four employees of the Commonwealth Bank of Australia (“CBA”) be examined. Those orders are sought to give effect to four letters of request issued by the Delaware Court on 25 April 2017. CSC has also commenced separate proceedings, 2017/126795, in this Court under the Act to give effect to other letters of request by the Delaware Court in the same US proceedings. Mr Emmett of counsel appears for CSC in both proceedings.

3. The second application is brought by Eric Pulier and TechAdvisors. By way of notice of motion in these proceedings, Mr Pulier and TechAdvisors seek orders under ss 33(1) and 33(3)(b) of the Act that the Court give effect to a letter of request from the Delaware Court that they be given leave to issue and serve a subpoena to produce on the proper officer of the CBA. Pursuant to r 52.1(3) of the Uniform Civil Procedure Rules2005 (NSW) (“UCPR”), if proceedings under s 33 of the Act have already been commenced in relation to a matter pending before a requesting court, any subsequent application is to be made by notice of motion in the same proceedings. Ms Edwards of counsel appears on the second application.

4. Both proceedings came before Beech-Jones J in his capacity as duty judge on 16 May 2017. His Honour delivered ex tempore reasons for making a number of orders that day, which orders gave effect to other letters of request in the same proceedings in the Delaware Court. His Honour declined to make orders in respect of the CBA examinees on the basis that there was insufficient evidence before him as to whether the orders were opposed. The notice of motion filed on behalf of Mr Pulier and TechAdvisors seeking leave to issue and serve the subpoena to produce on the CBA was stood over by consent at that time.

Factual background

5. In 2013, CSC acquired ServiceMesh Inc (“ServiceMesh”) pursuant to an equity purchase agreement (“EPA”) for over US$260 million. ServiceMesh is a cloud computer management software company. As a result of the EPA, ServiceMesh became a wholly-owned subsidiary of CSC. Mr Pulier was the chairman, chief executive officer and largest equity holder of ServiceMesh. He also controlled TechAdvisors.

6. Under the EPA, CSC agreed to pay the former equity holders of ServiceMesh approximately US$93 million. An “earn out” clause provided that there would be another substantial payment if ServiceMesh generated more than $US20 million in revenue in the period from 1 January 2013 to 31 January 2014. Shortly before that period expired, ServiceMesh signed several contracts with the CBA that generated more than $US10 million in revenue. Those agreements resulted in the “earn out” threshold being exceeded. As ServiceMesh had produced over $US20 million in revenue, CSC paid the sellers US$98 million. But for the CBA contracts, the sellers would have received no earn out payment.

7. Keith Hunter and Jon Waldron were information technology executives at the CBA at the relevant time. They had extensive involvement in ServiceMesh projects and contracts. In 2014, after Mr Pulier had received over $US9 million as his share of the earn out payment, he indirectly transferred more than US$2 million to the CBA accounts of Mr Hunter and Mr Waldron. When the CBA noted these abnormal transfers, they conducted an investigation and subsequently reported the matter to New South Wales police on the basis that it was suspected that Mr Hunter and Mr Waldron had accepted bribes from ServiceMesh in exchange for preferential treatment as a CBA vendor. Both men were subsequently charged with dishonestly obtaining a financial advantage by deception. Mr Hunter pleaded guilty and is currently in custody serving a sentence of imprisonment. Mr Waldron pleaded not guilty and is currently on bail awaiting trial.

8. On 24 February 2015, the CBA contracts with ServiceMesh were terminated.

9. CSC subsequently commenced proceedings in the Delaware Court to recover the US$98 million earn out payment. CSC alleges that Mr Pulier paid bribes to Mr Hunter and Mr Waldron to obtain the CBA contracts. Mr Pulier and TechAdvisors dispute the bribery allegations. Separately, Mr Pulier has stated claims of fraud and other misconduct against CSC.

10. A critical issue at the trial will be whether there was in fact a proper legitimate commercial basis for the service contracts between ServiceMesh and the CBA.

CSC’s evidence

11. CSC relied upon three affidavits in support of its application: an affidavit of Thomas O’Brien sworn 12 May 2017 and affidavits of Ross Norman Freeman affirmed on 15 May 2017 and 14 June 2017 respectively.

12. Mr O’Brien is a partner at the Dallas law firm representing CSC in the Delaware proceedings. He deposes that discovery in those proceedings has commenced and closes on 27 September 2017. In his affidavit, he explains that, in the USA, deposition statements are given by witnesses, usually upon oral examination, outside of court. Both parties have the right to attend such oral depositions. The deposition testimony can then be used as evidence at trial or in preparation for trial to determine what a witness will say. He confirms that the four letters of request seek oral testimony for use at trial in the Delaware proceedings and not merely for use as part of the pre-trial investigation.

13. Mr Freeman is the partner at Minter Ellison responsible for the conduct of these proceedings. Exhibited to his affidavit is a letter from Herbert Smith Freehills, who appear for the CBA and for each of the four CBA employees required for examination. The letter notes that each of those four employees has no objection to the orders sought and in particular to the subpoenas that require each of them to give sworn testimony in this matter.

Mr Pulier’s and TechAdvisors’ evidence

14. Mr Pulier and TechAdvisors relied upon an affidavit of Jeff Sinek sworn 11 May 2017 and two affidavits of Susanna Marion Ford affirmed on 16 May 2017 and 14 June 2017 respectively.

15. Mr Sinek is a partner at the Los Angeles law firm representing Mr Pulier and TechAdvisors in the proceedings in the Delaware Court. He made the application to the Delaware Court for the letter of request. He states that the documents identified in the letter of request are sought for the purposes of the proceedings in the Delaware Court. He notes that CSC attempted to obtain some documents from the CBA informally and was unsuccessful. He did not attempt to do the same as he believed that it would be futile.

16. Ms Ford is a partner at Arnold Bloch Leibler, the solicitors responsible for the conduct of these proceedings on behalf of Mr Pulier and TechAdvisors. Since 15 May 2017, she has been in correspondence with Anne Knight, a solicitor from Herbert Smith Freehills who represents the CBA in this matter. In correspondence prior to the proceedings before Beech-Jones J, Ms Knight requested that Ms Ford seek a two-week adjournment so that she could obtain instructions from the CBA as to the breadth of certain categories of documents sought and the time required for production of the documents. It was on that basis that those orders were not sought before Beech-Jones J.

17. Since that time, Ms Ford and Ms Knight have corresponded in relation to the form of a proposed subpoena to be issued to the CBA. Some amendments have been made. Ms Ford affirms that she believes that the agreed proposed subpoena substantially gives effect to the letter of request. Annexed to her second affidavit is a letter from Ms Knight in which she confirms that the CBA agrees to the attached form of the proposed subpoena. Ms Knight also states in that letter that CBA has no objection to the orders sought based on the agreed form of subpoena, provided that an order be sought from the Court to the effect that CBA’s reasonable costs of complying with the subpoena be paid.

The requests from the Court of Chancery in Delaware

18. Before turning to consider the relevant provisions of the Act, it is pertinent to set out briefly the terms of the letters of request issued by the Delaware Court.

19. I was provided with four letters of request pertaining to each of the four CBA examinees and a further letter of request pertaining to the subpoena on the CBA sought by Mr Pulier and TechAdvisors.

20. Each of the first four requests is dated 25 April 2017. They are in identical terms save as to the details of each of the four examinees. Each of the four requests is addressed to “The Supreme Court of New South Wales” and commences in these terms:

“WHEREAS, the civil proceedings (the “Proceedings”) captioned above are proceedings concerning a dispute arising from Computer Science Corporation’s (“CSC”) acquisition of ServiceMesh Inc. pending in the Court of Chancery of the State of Delaware, United States of America;

WHEREAS the Proceedings are set to be tried in the Court of Chancery in late January 2018 and early February 2018; and

WHEREAS, it is being represented to this Court that it is necessary for the purposes of justice and for the due determination of the issues in dispute in the Proceedings that [name of witness], an employee of Commonwealth Bank of Australia (“CBA”), give evidence in the nature of proof to be used at trial as described in this Letter of Request.

The undersigned, as a Judge of the Court of Chancery, hereby issues this Letter of Request for judicial assistance to the Supreme Court of New South Wales, pursuant to the Evidence on Commission Act 1995 (NSW).”

21. There is a footnote in the third narration in each of the letters of request to the effect that CSC had contacted the witnesses to ascertain whether they would be willing to give sworn testimony voluntarily but had been unsuccessful.

22. Each of the four requests is 12 pages long and addresses 13 subject matters. Under heading (1) are identified the details of the requesting judicial authority, those of the competent authority to which the request is addressed (in this case, the registrar of this Court), and the name and identifying number of the Delaware litigation. Under (2) are listed the plaintiff and defendants and their various legal representatives. Next to (3) are provided details of the nature of the proceedings. Next to (4) is set out a brief description of the evidence to be obtained and the purpose of that evidence. Next to heading (5), details are provided of the identity and address of the person to be examined. Relevantly, in each of the four requests, the words “CSC seeks sworn testimony from:” appear before the name and address of the relevant person.

23. Heading (6) addresses the questions to be put to the person to be examined or a statement of the subject matter about which they are to be examined. Next to this topic there is a reference to an annexure, Exhibit 1, which is said to set forth the areas of enquiry indicating the subject matter of the sworn testimony that CSC seeks to obtain. Significantly, the fact that “CSC reserves the right to ask additional questions on the subject matter identified in the areas of enquiry” is also noted. Heading (7) is not relevant for present purposes.

24. Headings (8) and (9) address any requirements on the part of the Delaware Court as to how the evidence is to be taken and any special methods or procedure to be followed. Included next to those requirements is a request by the Delaware Court that sworn oral testimony be given before a person competent to preside over the examination of the witness, that the examination be oral, that a verbatim transcript be prepared by a stenographic reporter and that a video and audio transcript be prepared. It is also requested that the transcript be authenticated by a signature of the witness acknowledging it to be a true record and that any documents used in the examination be marked as exhibits and incorporated into the record of the sworn testimony.

25. Heading (10) is a request that certain persons be notified of the time and place for the execution of the request. They include all of the relevant lawyers. Headings (11) and (12) are not directly relevant and (13) notes that CSC is to bear any court costs. A number of documents are then exhibited to each request that do not appear to be relevant for present purposes, save as to Exhibit 1, which provides for the areas of enquiry in general terms.

26. The fifth letter of request, sought by Mr Pulier and TechAdvisors, was also issued by the Delaware Court on 25 April 2017. It requested that this Court use its proper usual processes to cause CBA to produce documents identified in a list referred to as Exhibit A. The request is in these terms:

“In conformity with Article 3 of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, the undersigned applicant has the honor to submit the following request:

WHEREAS, a lawsuit is pending in the Court of Chancery of the State of Delaware between plaintiff/counterclaim-defendant Computer Sciences Corporation and defendants/counterclaim-plaintiff Eric Pulier, TechAdvisors, LLC and Shareholder Representative Services LLC, and it has been represented to the Court that justice cannot be completely done between the parties without the production of certain documents specified in Exhibit A hereto by the Commonwealth Bank of Australia (“CBA”), Level 5, Tower 1, Darling Park, 201 Sussex Street, Sydney NSW 2000, Australia;

WHEREAS, the documents requested herein are sought to use as evidence at trial, relevant to the trial of this case, and the request for these documents is not unduly burdensome;

THEREFORE, the Court of Chancery of the State of Delaware requests that the Supreme Court of New South Wales, pursuant to the Evidence on Commission Act 1995 (NSW), by proper and usual process of your honorable Court, cause CBA to produce the documents identified in Exhibit A attached hereto.”

27. As with the other requests, a number of matters are then addressed. It is relevant for present purposes to refer to only some of these. Significantly, heading (3) describes the “Person to whom the executed request is to be returned” as Susanna Ford, the applicant’s solicitor at Arnold Bloch Leibler. There are also a number of references to the application having been made by counsel for Mr Pulier and TechAdvisors.

28. It would appear that due to a clerical error Exhibit A is not actually attached to the request. It was tendered on this application. Ms Ford has deposed to the fact that the document before me is in the same terms as that exhibited to the initial motion seeking the letter of request.

The statutory requirements for making an order

General principles

29. Part 4 of the Act deals with requests to the Supreme Court for taking evidence for the purpose of foreign civil or commercial proceedings. It enacts the provisions of The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial matters 847 UNTS 231 (“the Hague Convention”) as a law of New South Wales. Applications under the Act are usually made ex parte in the first instance.

30. In British American Tobacco v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158 at 498 [42] (“British American Tobacco”), Spigelman CJ cited the observations made by Burnton J in Gredd v Arpad Busson [2003] EWHC 3001 at [27]:

“(1) Comity requires this court to view a letter of request issued by a foreign court for the purpose of civil proceedings before it benevolently. It is our pleasure and duty to assist those courts and the parties to them in arriving at a fair and just determination of their civil litigation where we can properly do so.

(2) Nonetheless when an application for an order under the act is disputed, the [Court] must determine whether the order sought is one which can and should properly be made.

…”

31. His Honour considered that the approach described by Burnton J ought to be adopted in Australia.

32. Mr Emmett also brought the Court’s attention to observations made in other decisions to the effect that letters of request should be given effect to the fullest extent possible: Re Westinghouse Electric Corporation Uranium Contract Litigation [1978] AC 547 at 612 and 654; Re Asbestos Insurance Coverage Cases [1985] All ER 716 at 719; Pickles v Gratzon (2002) 55 NSWLR 533 at [50] and Re The Hague Convention [2008] SASC 51 at [13].

Question of standing

33. Consistent with the obligation of candour required of counsel on ex parte applications such as these, Mr Emmett brought to the Court’s attention the fact that Mr Waldron, an examinee in relation to whom Beech-Jones J made orders on 16 May 2017, has informed CSC’s legal representatives that he proposes to contest the standing of CSC to bring these proceedings. The point was not taken before Beech-Jones J and it is not taken by any of the CBA examinees in the present application. The basis for the objection is as follows.

34. Part 4 of the Act is comprised of five sections: ss 31 – 36. Section 31 sets out some relevant definitions. Section 32 refers to the making of “an application” to the Supreme Court, but does not limit who can make such an application. Section 33 refers to “an application” made under s 32, but again makes no reference to who can or cannot make such an application. Section 34 expressly retains any privilege that a witness may have. Section 35 provides that Part 4 of the Act does not limit the operation of any law of the State that provides for the taking of evidence in the State for the purpose of a proceeding outside the State. Section 36 is in these terms:

“36   Rules of court

(1)  The power to make rules under the Supreme Court Act 1970 extends to the making of rules for or with respect to:

(a) the manner in which an application under section 32 is to be made, and

(b) the circumstances in which an order can be made under section 33, and

(c) the manner in which any reference mentioned in section 34 (3) is to be made.

(2)  Any such rules may include such incidental, supplementary and consequential provisions as are necessary or convenient.”

35. Pursuant to s 36 of the Act, Part 52 (rr 52.1 – 52.6) of the UCPR deals with “Taking evidence for foreign and Australian courts and tribunals.”

36. Rule 52.1 of the UCPR is in these terms:

“52.1 Procedure

(1) Proceedings for an order under section 33 of the Evidence on Commission Act 1995 in relation to a matter pending before a requesting court may be commenced in the Supreme Court:

(a)  by a person nominated for that purpose by the requesting court, or

(b)  if no person is so nominated, by the Attorney General.

(2)  In proceedings for such an order, no person is required to be joined as a defendant.

(3)  If proceedings for such an order have been commenced in relation to a matter pending before a requesting court, any other application for such an order in relation to the same matter is to be made by notice of motion in the proceedings.

(4)  Rules 52.2–52.5 have effect unless the Supreme Court otherwise orders.”

[emphasis added]

37. Rule 52.2 provides that UCPR rr 24.7 – 24.16 apply to an examination held pursuant to an order under Part 52. Rule 52.3 provides that the person commencing proceedings under this Part may attend and take part in the examination. Rule 52.4 sets out procedures for transcript of evidence and exhibits and r 52.6 concerns the issue of privilege. Rule 52.5 provides that:

“52.5 Certificate

On receipt of a transcript of evidence taken under this Part, a registrar of the Supreme Court:

(a)  must issue a certificate, sealed with the seal of the Supreme Court, annexing and identifying:

(i)  the request, and

(ii)  the order of the Court for examination, and

(iii)  the transcript of evidence, and

(iv)  any document that constitutes a recording under rule 24.13, and

(v)  any exhibits received from the examiner, and

(b)  must send the certificate and annexures to the Attorney General or, if the request was sent to the Supreme Court by some other person pursuant to a convention, to that other person.”

38. Rule 52.1 of the UCPR (extracted above at [36]) provides that applications to this Court under the Act can only be brought by either “a person nominated for that purpose by the requesting court” or by the Attorney General. The present applications have been brought by parties to the litigation in the Delaware Court. Despite the fact that these proceedings are brought ex parte, and the question of standing has not been raised by the four CBA examinees, before I am able to consider these applications I must nonetheless be satisfied that the Delaware Court has nominated the applicants for the purpose of bringing these proceedings.

39. Some of the states that are parties to the Hague Convention have inquisitorial legal systems and others have an adversarial legal system. In countries with inquisitorial legal systems, it will usually be the court of its own volition that seeks the assistance of this Court in the taking of evidence on commission. By way of example, in Application by the Attorney-General in and for the State of New South Wales under the Evidence on Commission Act 1995 [2016] NSWSC 1086, the request for the examination of a witness in proceedings pertaining to a request for a dissolution of marriage came from the People's Court of Phu Yen Province in the Socialist Republic of Vietnam. It is apparent why the appropriate applicant in such a case would be the Attorney General; there would be no relevant person for the requesting court to nominate. Any person nominated by the requesting court would bear the costs of bringing the application.

40. The present applications have been brought by parties to the litigation in Delaware. Those parties approached the Delaware Court and made direct application to it. The letters of request have all been issued at the request of those applicants, the identity of which is clearly stated in each of the letters of request, albeit in terms that differ slightly.

41. In the four letters of request pertaining to the CBA examinees, before the identity and address of the person to be examined are set out, the following words appear: “CSC seeks sworn testimony from”. Elsewhere in the documents it is apparent that CSC is the applicant, including in the footnotes at the bottom of the first page of each letter of request (described above at [21]). The letter of request also notes the fact that, “CSC reserves the right to ask additional questions on the subject matter identified in the areas of enquiry.” It is also significant that the request expressly states that the fees and costs of the Supreme Court proceedings will be reimbursed by CSC through its counsel.

42. The letter of request seeking the production of documents from the CBA expressly states that the person to whom the executed letter of request is to be returned is the Australian solicitor for Mr Pulier and TechAdvisors. Similarly, that letter of request stipulates that it is the defendants Mr Pulier and TechAdvisors who are to bear the fees and costs incurred.

43. Mr Emmett brought the Court’s attention to the decision of Slattery J in The Application of Jan L. Brodie (Judge of the Circuit Court of Fairfax County, Commonwealth of Virginia, United States of America) v Ex parte Laura E. Dunlop [2013] NSWSC 829. He submitted that his Honour took a “generous” approach to who can apply for orders under s 33 of the Act. In that case, his Honour noted at [9] that, notwithstanding that the proceedings were brought in the name of Judge Brodie, the solicitor for the true moving party, Ms Dunlop, had initiated them. Although the letter of request did not explicitly nominate that solicitor, it was requested that he be notified of the time and place of the execution of the request. Mr Emmett submitted that that clause was the equivalent of heading (10) of the letters of request in this case.

44. I have been unable to find any other authority in which this issue has previously been raised. The issue was not raised before Beech-Jones J, nor was it raised in any of the other decisions provided to me on these applications. A number of those decisions pre-date the UCPR, but its predecessor, Part 58(1)(a) of the Supreme Court Rules1970 (NSW), was in almost identical terms. It provided that proceedings under s 33 of the Act “…may be commenced by a person nominated for that person by the requesting court or, if no person is so nominated, by the Attorney General.”

45. I am satisfied that each of the letters of request nominates the relevant applicant. It seems to me that, by making them liable for the costs incurred, the Delaware Court has nominated those applicants to commence proceedings in this Court in order to give effect to the application for assistance. That is, I am satisfied that the reference to either CSC or Mr Pulier/TechAdvisors in the letters of request amounts to a nomination by the issuing court for the purposes of r 52.1(1)(a) of the UCPR. In reaching that conclusion I have had regard to the letters as a whole, including the matters at [41] – [42] above, and have read them benevolently consistent with the principles derived from the cases referred to above at [30]-[32].

46. I note that there is nothing in the Act itself that limits who can apply for such orders under the Act. On one view, the power under s 36(1)(a) of the Act to make rules with respect to “the manner in which an application under section 32 is to be made” would not extend to a power to limit who it is can make such an application. I do not need to determine that issue for the purposes of this application because I am satisfied that the applicants in these matters have been nominated by the requesting court to bring these applications. It nonetheless seems to me that any other construction of r 52.1 of the UCPR would result in the rule extending beyond the power conferred by s 36 of the Act.

Statutory prerequisites are satisfied

47. Section 33 of the Act provides that, if an application is made under s 32, this Court may make an order making such provision for the obtaining of evidence in New South Wales as appears appropriate for the purpose of giving effect to the request. The Court’s powers under s 33 include making orders for the examination of witnesses and the production of documents.

48. Justice Beech-Jones declined to make orders in respect of the CBA examinees because there was no evidence before the Court as to the attitude of those examinees to the orders sought. I am satisfied that there is now evidence that confirms that there is no objection on behalf of those four examinees to being subpoenaed to give evidence in these proceedings. I am also satisfied that the CBA does not oppose the orders concerning the subpoena to be served on them to produce documents.

49. Although the orders sought are not opposed, I must nonetheless be satisfied of the relevant statutory preconditions under the Act being granting the orders sought. First, I must be satisfied that the application is made in pursuance of a request issued by or on behalf of a court exercising jurisdiction in a place outside New South Wales: s 32(1)(a) of the Act. The requesting court is defined in s 31 of the Act as a court or tribunal by or on whose behalf a request is issued. I am satisfied that the requests have been made by the Delaware Court and that the applications are made in pursuance of those requests.

50. The second statutory precondition 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: s 32(1)(b) of the Act. The documentation before me shows that proceedings have been commenced. In each of the four letters of request seeking examination, the purpose is stated to be to obtain “compelling evidence in the nature of proof to be used to the trial in the form of sworn testimony.”

51. The third prerequisite is that the overseas proceedings do not relate to the commission of an offence. Section 32(2) of the Act provides that Part 4 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. Although the conduct of the subject matter of the proceedings has led to a number of related criminal and regulatory actions, that fact alone does not mean that the proceedings are anything other than civil proceedings. The civil standard of proof applies and the success of the hearing will not expose the defendants to a fine or custodial penalty. I am satisfied that the proceedings in the Delaware Court do not relate to an offence.

52. As for the scope of the requests, the Court of Appeal in British American Tobacco considered s 33(6) of the Act. Spigelman CJ accepted that the word “evidence” in the Act was intended to reflect the usage of that term in the Hague Convention. Oral examination thus cannot extend to obtaining information, as distinct from obtaining evidence for the trial. It was further submitted that the orders all relate to steps that this Court would be able to require in respect of local proceedings. Each of the letters of request contains a list of “areas of enquiry”. In this way, they comply with the subject matter approach adopted under Article 3(f) of the Hague Convention.

53. Section 33(6)(b) of the Act provides that, “An order must not require a person to produce any documents other than particular documents specified in the order and appearing to the court making the order to be, or likely to be, in the person’s possession, custody or power.” There is no issue in this case that the documents sought by Mr Pulier are in the possession, custody or control of the CBA.

54. When this matter came before Beech-Jones J, his Honour noted that some of the requested documents fell within certain specified categories. His Honour’s reasons disclose that Mr Emmett submitted at that time that the relevant governing principle to be applied was whether the documents were genuinely sought for the purposes of evidence at trial as opposed to material sought for the broader purposes of discovery. The letter of request states more than once that the documents are to be used as evidence in the trial. His Honour noted the force in that argument, but held that it was not necessary to make any finding in that regard, only that it was “arguable”. His Honour took this approach in light of the fact that there was consent to the orders sought. I propose to adopt a similar approach in this matter.

55. I have had regard to the terms of the agreed proposed subpoena. Some of the requests are made in terms of categories of documents rather than individual documents, but I am satisfied that the subpoena does not amount to an attempt to conduct discovery. Ms Ford deposes in her affidavits that the documents are known to exist and be within the custody and control of CBA. It seems to me that the documents are described with sufficient particularity as to satisfy the terms of s 33(6)(b) of the Act.

56. On 16 May 2016 when Beech-Jones J ordered the examination of Mr Waldron and Mr Hunter, his Honour noted that the examination of Mr Waldron at least should be by a judge of this Court, given that the question of the privilege against self-incrimination will no doubt arise. Although his Honour anticipated that a judge would be allocated to this matter for the purposes of case management generally, no such allocation has as yet been made. It is anticipated that a judge will be allocated to this matter shortly in order to give effect to the observations made by his Honour.

57. I note that in the short minutes of order CSC seeks that the four CBA examinees be examined by a senior member of the New South Wales bar or retired justice of a superior court to be nominated by the plaintiff or by such other person as the court thinks fit. I propose to make the order in the terms sought, but note that, if the judge allocated to this matter takes a different view, that order could be varied at that time. A further order seeks liberty to the plaintiff to apply to the judge allocated to these proceedings for the purposes of case management for the commencement of examination of those witnesses. There is also an order that the plaintiff pay the costs and expenses of the examinees.

58. Turning to the orders sought in relation to the subpoena to be issued on the CBA to produce documents, I am satisfied those orders are consistent with the position of the CBA in not opposing this application.

Orders

59. I make orders under s 33(1) of the Evidence on Commission Act 1995 (NSW) in the form of the two short minutes of order documents filed in court on 16 June 2017.

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Amendments

22 June 2017 - Date in order changed from "16 June 2016" to "16 June 2017".

Decision last updated: 22 June 2017