Application of the Attorney General of New South Wales v .

[2018] NSWSC 1267

Supreme Court

New South Wales

Medium Neutral Citation:	Application of the Attorney General of New South Wales v . . [2018] NSWSC 1267
Hearing dates:	14 August 2018
Date of orders:	14 August 2018
Decision date:	14 August 2018
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Orders in accordance with the Short Minutes of Order initialled and dated today by me
Catchwords:	CIVIL PROCEDURE - Application for further orders - previous orders for taking evidence “in the State” - interstate witnesses - question of interpretation - employees of business based in NSW – willingness to co-operate – evidence ordered to be taken by affidavit
Legislation Cited:	Evidence On Commission Act 1995 (NSW), Pt 4, ss 32, 33
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Consequential orders (other than Costs)
Parties:	Attorney General of New South Wales
Representation:	Counsel: R Hudson (solicitor)   Solicitors: Crown Solicitor’s Office
File Number(s):	2017/384466

ex tempore Judgment - Revised

1. I am dealing with an application under Part 4 of the Evidence on Commission Act1995 (NSW) (“the Act”) for the making of further orders supplementary to those which were made by Walton J on 9 February 2018. At that time, when orders were made for the taking of evidence under s 33 of the Act, it was believed that each of the four witnesses the subject of the request from the Central Civil Court of Portimão, Portugual were residents, or at least present, in New South Wales. That flowed from the consideration that the address provided by the Portuguese Court for each of the witnesses was a business address in North Sydney.

2. When the Crown Solicitor sought to act on the orders previously made, it was ascertained that only one of the witnesses resided in New South Wales and that, of the other three, two resided in Queensland and the third in New Zealand.

3. I have discussed with Mr Hudson, the solicitor who appears on the application, whether I have power under s 33 to order that evidence be taken from interstate witnesses. I raise this question because s 33(1) is in the following terms:

The Supreme Court has power, if an application is made under section 32, by order to make such provision for obtaining evidence in the State as may appear to the Court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made.

My provisional view is that the phrase "in the State" connotes a geographical connection with this State requiring the evidence to be available here in New South Wales. I do not know but I assume there is cognate legislation of the other States of the Commonwealth facilitating dealing with requests for assistance by courts from foreign jurisdictions.

4. However, having read the affidavit of Mr Hudson sworn today I am satisfied that this interesting question of interpretation need not be determined in the circumstances of this case, for it transpires that each of the interstate and overseas witnesses remain employed by the travel insurance company, the subject of the request from Portugal. The general counsel of that company has confirmed that each of them is prepared to make an affidavit answering the questions on which the Portuguese Court has requested evidence.

5. I record for the record that the general counsel, Mr Derwent, has his office in North Sydney.

6. In those circumstances, given that the witnesses are prepared to co-operate and are prepared to provide affidavits which can be provided in this State, I am satisfied that it is appropriate that I make the order Mr Hudson seeks.

7. I should say that Mr Hudson has provided written submissions which I have found extremely helpful.

8. I am satisfied I have the power to make the order in terms of s 32 of the Act. The application is made pursuant to a request by a court exercising jurisdiction outside New South Wales, namely in Portugal, and the evidence to which the request relates is for the purpose of civil proceedings instituted before the requesting Court. I am satisfied that, in the sense I have already discussed, evidence may be taken by affidavit in this State and I make orders in accordance with the Short Minutes of Order that Mr Hudson has handed up, initialled by me and dated today. I direct the seal of the Court may be affixed to that form of order.

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Decision last updated: 23 August 2018