Application of the Securities and Exchange Commission of the United States of America under the Evidence on Commission Act 1995 (NSW) (No 2)

The Securities and Exchange Commission of the United States of America (SEC) applied to the Supreme Court of New South Wales under the Evidence on Commission Act 1995 (NSW) for an order to examine a person for the purposes of evidence in civil proceedings in the United States. The application was made in respect of civil proceedings abroad, and the SEC sought to examine the person in Australia as part of its investigation. The application raised issues concerning the statutory scheme and the interpretation of the term “commission of an offence” under section 32(2) of the Act. The court had to determine whether the US proceedings were criminal in nature and whether the order for examination should be made with respect to the accused in those criminal proceedings.

The court examined the statutory interpretation of the Evidence on Commission Act 1995 (NSW) and considered the principles of legality and common law rights and freedoms. The court also considered the principle in X7 (2013) 248 CLR 92, which held that an infringement of accusatorial judicial process acts as a bar to the Court’s exercise of discretion. The court found that the Evidence on Commission Act 1995 (NSW) did not expressly empower or necessarily intend the compulsory examination of an accused prior to the completion of criminal proceedings. The court considered the discretionary factors of utility and deferment and ultimately decided not to make the order for examination.

The court found that the US proceedings were civil in nature and that the order for examination should not be made with respect to the accused in the criminal proceedings. The court noted that the SEC had already obtained the evidence it required from the person in question in the US and that there was no utility in making the order for examination. The court also found that the order for examination would be deferred until the completion of the criminal proceedings in Australia. The court did not make the order for examination, and the application was dismissed.