Application of the Attorney-General under s 33 of the Evidence on Commission Act 1995

[2021] NSWSC 151

Supreme Court

New South Wales

Medium Neutral Citation:

Application of the Attorney-General under s 33 of the Evidence on Commission Act 1995 [2021] NSWSC 151

Hearing dates:

23 February 2021

Date of orders:

23 February 2021

Decision date:

23 February 2021

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Orders made for subpoena to be issued to Commissioner of Police for NSW

Catchwords:

EVIDENCE ON COMMISSION – request from a Court of the United Kingdom for production of documents held by the Commissioner of Police for NSW

Legislation Cited:

Evidence on Commission Act 1995 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

N/A

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
Hugh Atkin

Solicitors:
Crown Solicitors Office (Applicant)

File Number(s):

2020/219833

Publication restriction:

Nil

EX TEMPORE Judgment

1. By notice of motion filed on 8 February 2021, supported by an affidavit affirmed the same day by Gemma Clair Namey, Solicitor, the Attorney-General for the State of New South Wales applies for orders in accordance with pt 4 of the Evidence on Commission Act 1995 (NSW) for the provision of assistance to the Family Division of the High Court for England and Wales in relation to proceedings pending in that Court relating to custody and contact of a child. The requests the subject of the application are the third and fourth requests for the provision of assistance made in respect of those proceedings. I made orders on 31 July 2020 and Justice Rothman made further orders on 31 August 2020.

2. The affidavit of Ms Namey attaches its request for assistance. What I have referred to as the third request for assistance seems to be dated 7 December 2020 and consists of a request made by the Senior Master Fontaine, Senior Master of the Queen’s Bench Division of the Supreme Court for England and Wales, and attaches a request from the judge to whom the family proceedings have been assigned dated 20 November 2020. I'll refer to that request as the third request. Ms Namey's affidavit also attaches the fourth request which is dated 22 December 2020 made in the name of the Senior Master but signed by Master David Cook. It also attaches a request referred to as a disclosure order made by the judge to whom the proceedings have been assigned.

3. The third request relates to the provision of further documents by the New South Wales Police Commissioner relating to the father of the child. The father, so far as it may be relevant, consents to the production of that material. This seems to me to be the third request for material from the Police Commissioner. The fourth request relates to a request for copies of documents filed in two sets of proceedings and the Family Court of Australia between the father and a subsequent partner.

4. Again the material before me, so far as that may be relevant, recites that the father consents. Moreover, the material also recites that the father proposes to make a direct application to the Family Court, I assume, for a release from the implied undertaking, so far as that may be necessary in relation to documents filed in that Court.

5. Mr Atkin of counsel appears for the Attorney-General and we have had a discussion about the Court's power to make the request of the Registrar of the Family Court, having regard in particular to the provisions of s 33(4) of the Act. It seems to me that r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) which facilitates the production of documents by request between State courts is probably inapplicable to a request for the production of information held by a Federal Court. Having said that, however, there seems to be no reason why the Supreme Court as the superior court of record for the state of New South Wales, does not have the power to make such a request from a Federal Court. It would seem to me, subject to any protection afforded documents held by the Family Court by federal legislation that it is well within this Court's power for a subpoena to be issued to the Registrar. However, I accept the argument of Mr Atkin that at least in the first instance, for reasons of comity a request is a more appropriate means of proceeding.

6. I am satisfied that the preconditions to the exercise of the Court's power as specified by s 32 of the Act have been satisfied for the reasons I expressed in my previous judgment in the matter: [2020] NSWSC 1007, and I am satisfied that there is evidence available in New South Wales and that the provisions of s 33 are engaged in as much as this Court has power to first, issue the subpoena the subject of the third request. Secondly, make the request for production of documents by the Family Court, the subject of the fourth request.

7. I note further in relation to the fourth request that his Honour Judge Jordan, the judge to whom the matter has been assigned in England, sitting as a Deputy Judge of the High Court, has indicated that he is prepared and willing to engage in a direct judge-to-judge liaison with a judge of the Family Court if required to explain the need for the disclosure of information for the purpose of the English proceedings. I will direct that that matter be drawn to the attention of the Registrar of the Family Court in accordance with the letter of request.

8. For these reasons, I make the following orders:

1. Under s 33 of the Evidence on Commission Act 1995 the plaintiff has leave to file and serve on the Commissioner For Police for New South Wales a subpoena for the production of documents having a schedule in the form annexed as annexure C to the affidavit of Gemma Clair Namey affirmed on 8 February 2021.

2. The solicitor for the plaintiff to obtain from the registry at the time of filing the subpoena the sealing the 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 For 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. Direct the Registrar to forward a letter of request to the Registrar of the Family Court of Australia requesting the documents specified in paragraph 4 of Senior Master Fontaine's letter of request of 22 December 2020, being annexure D to the affidavit of Ms Namey affirmed on 8 February 2021 relating to proceedings PSYC3088/2019.

6. Direct that the Registrar attach the letter of request of Senior Master Fontaine of 22 December 2020 and the disclosure order made by his Honour Judge Jordan on 20 November 2020, which is annexure E to Ms Namey's affidavit. The Registrar should also draw recital 5 in that latter document specifically to the attention of the Registrar of the Family Court.

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