Attorney General in and for the State of New South Wales

[2019] NSWSC 906

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General in and for the State of New South Wales [2019] NSWSC 906
Hearing dates:	15 July 2019
Decision date:	15 July 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [10]
Catchwords:	PRACTICE AND PROCEDURE – request for evidence on commission – issue of subpoena proposed to answer request by court in Lima in matrimonial dispute – application granted
Legislation Cited:	Evidence on Commission Act 1995 (NSW), ss 32, 33
Category:	Procedural and other rulings
Parties:	Attorney General in and for the State of New South Wales Ex parte
Representation:	Counsel: H Morgan, solicitor (Plaintiff)   Solicitors: Crown Solicitor’s Office (Plaintiff)
File Number(s):	2019/206412

Judgment

1. By summons filed on 3 July 2019, the Attorney General in and for the State of New South Wales applies for an order under the Evidence on Commission Act 1995 (NSW) (the Act).

2. Section 32 of the Act provides for applications to be made to this Court by a court or a tribunal exercising jurisdiction in a place outside the State. The evidence to which the application relates must be that which is to be obtained for the purposes of proceedings which have either been instituted before the request in court or whose institution before that court is contemplated.

3. Section 32(2) of the Act makes clear that it does not apply in respect of proceedings relating to the commission of an offence. This Court's power to give effect to the application for assistance is conferred by s 33 of the Act, which makes provision for the manner in which an application is to be dealt with and the orders which may be made.

4. The plaintiff, for whom Ms Morgan appeared, relied on the affidavit of Jimmy Taing of 3 July 2019, which annexes the relevant request which emanates from the Court of Appeals in and for Lima, being the 14th Court with jurisdiction over family matters there (the Requesting Court). A judge of the Requesting Court has made the request in relation to proceedings brought by Filipa Louise Brasch against Carlo Ricketts. Ms Brasch seeks to have an alleged common law marriage between herself and Mr Ricketts recognised by the Requesting Court. The terms of the request seek a report from the Westpac Bank, Queen Street Branch in respect of accounts held by Ms Brasch.

5. Ms Morgan contended that a beneficial construction ought to be given by this Court to a request from a foreign court in order that the forensic purpose for which the documents are sought by that court can be achieved irrespective of whether the request was in a form which could be made in terms.

6. The request by the Requesting Court for a report would appear on its face to transgress the requirements in s 33(6) of the Act which provides that an order under s 33 must not require a person in effect to identify or to state what documents relevant to the proceedings are in that person's possession or to produce any documents other than particular documents specified.

7. Ms Morgan has suggested that the way of answering the request, consistently with the provisions of the Act, would be for a subpoena to issue to Westpac Bank requiring the production of account statements in respect of bank accounts belonging to Ms Brasch held at that particular branch of the Westpac Bank, and also account statements in respect of any other financial product held by the Westpac Bank in the name of Ms Brasch.

8. I am satisfied, having regard to the terms of the request and the terms of the draft subpoena which I have marked exhibit A, that to authorise the subpoena to be issued would produce documents which would sufficiently answer the request made by the Requesting Court. Before making an order under the Act, it is necessary for me to be satisfied of three matters under s 32: first, that the application is made pursuant to a request issued by a foreign court; secondly, that the evidence relates for the purposes of the proceedings which have been instituted in that court; and, thirdly, that the proceedings do not relate to an offence. On the basis of the matters referred to above, I am satisfied that each of those three requirements has been met.

9. For these reasons I am satisfied that it is appropriate to make the orders sought in the short minutes of order provided by Ms Morgan on behalf of the plaintiff. Accordingly I make orders in terms of paragraphs 1, 2, 3, 4 and 5 of the short minutes of order (set out below) and I attach to those orders a copy of Exhibit A being the subpoena proposed to be issued at the bequest of the plaintiff.

Orders

10. For the reasons given above, I make the following orders:

1. Pursuant to s. 33 of the Evidence on Commission Act 1995, leave is granted to the plaintiff to issue and serve a Subpoena to Produce addressed to The Proper Officer, Westpac Banking Corporation (ACN 007 457 141), in the form annexed to these orders and marked "A".

2. At the time of service of the Subpoena to Produce issued pursuant to Order 1 above, Westpac Banking Corporation also be served with copies of:

1. the Summons,

2. the affidavit of Jimmy Taing affirmed 3 July 2019 and filed in these proceedings; and

3. the orders of the Court providing for the issue and service of the Subpoena to Produce.

3. That any documents produced pursuant to the Subpoena to Produce referred to in Order 1 above be certified by a Registrar of this Court as documents produced by Westpac Banking Corporation in these proceedings.

4. Photocopy access is granted to the Plaintiff to any documents produced by Westpac Banking Corporation in these proceedings.

5. Leave is granted to the Plaintiff to provide a copy of the documents produced in response to the Subpoena referred to in order 1 to the Court of Appeals in and for Lima, Peru.

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Decision last updated: 16 July 2019