Attorney General in and for the State of New South Wales

[2018] NSWSC 683

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General in and for the State of New South Wales [2018] NSWSC 683
Hearing dates:	15 May 2018
Decision date:	15 May 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [5].
Catchwords:	EVIDENCE ON COMMISSION – request from court in Poland for evidence relating to bank account of deceased – orders made for subpoena to be issued to Westpac and affidavit to be sworn by officer of Westpac
Legislation Cited:	Crimes Act 1900 (NSW) s 327 Evidence on Commission Act 1995 (NSW) s 33(1) Uniform Civil Procedure Rules 2005 (NSW) rr 24.9, 24.12
Texts Cited:	Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters
Category:	Procedural and other rulings
Parties:	Attorney General in and for the State of New South Wales (Plaintiff)
Representation:	Counsel: R Hudson (Plaintiff)   Solicitors: Crown Solicitors Office (Plaintiff)
File Number(s):	2018/140576

Judgment – EX TEMPORE

1. The Attorney General in and for the State of New South Wales makes an application under the Evidence on Commission Act1995 (NSW) following a request made by the District Court in Bialystok in the Republic of Poland (the Polish court). Mr Hudson, who appears on behalf of the plaintiff, relies on his affidavit of 4 May 2018 in support of the application.

2. Mr Hudson deposes that on 5 February 2018 the plaintiff received a request pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Convention) from the Polish court in relation to the taking of evidence from Westpac Banking Corporation (Westpac). Mr Hudson has also deposed that the plaintiff consents to the request and to the Crown Solicitor's office taking all necessary steps to give effect to the request.

3. Mr Hudson has annexed to his affidavit the Letter Rogatory with a sealed and certified translation which indicates that the proceedings in the Polish Court concern an application for the distribution of the estate of Jadwiga Lapinska (the deceased), who died on 20 February 2017 in Bialystok, Poland. The evidence sought is, in substance, whether the deceased had a bank account with Westpac in Australia and, if so, the balance standing to the credit of the deceased on that account or those accounts.

4. Having regard to the nature of the evidence requested, Mr Hudson contacted Westpac requesting confirmation that Westpac would ask that it provide its evidence by way of affidavit rather than oral examination. I am satisfied that it is an appropriate procedure having regard to the nature of the evidence likely to be within the possession of Westpac, which I expect to be business records such as bank statements and the like. Mr Hudson was informed by Westpac that the common practice in such an application was for Westpac to produce to the court documents in answer to a subpoena and to prepare an affidavit explaining those documents. Mr Hudson has attached to the summons a subpoena to produce which seeks the relevant documents from Westpac relevant to the evidence requested by the Letter Rogatory. Also attached to the summons is a letter which the Crown Solicitor proposes to send to Westpac informing the witness that it is an offence to give any false statement on oath contrary to s 327 of the Crimes Act 1900 (NSW). I accept that this procedure will carry out the steps requested by the Polish Court in a manner which is consistent with the requirements of s 33 of the Evidence on Commission Act.

5. Having reviewed the orders sought in the summons, I consider each to be appropriate. I consider the relevant power to be more aptly expressed as section 33(1) of the Evidence on Commission Act.

6. Accordingly, I make the following orders.

Pursuant to s 33(1) of the Evidence on Commission Act1995 (NSW) the Court orders:

1. That an examination of the Proper Officer of Westpac Banking Corporation, at 275 Kent Street, Sydney, Australia be conducted in writing on or before a date to be fixed by the Registrar.

2. That the Registrar of this Honourable Court be appointed as Examiner to conduct the examination.

3. That, within 7 days of the making of such order, a copy of the Order, Summons, Affidavit in support, a Subpoena to Produce in the form set out at Annexure “A” to this summons, and a letter in the form set out at Annexure “B” be served by the plaintiff on Westpac Banking Corporation, at 275 Kent Street, Sydney, Australia.

4. That the Proper Officer of Westpac Banking Corporation serve on the plaintiff, on or before 7 days prior to the examination date, an Affidavit providing evidence as to the following questions:

1. Did Jadwiga Lapinska, daughter of Feliks and Marianna, born on 29 October 1940 in Poland, who died on 20 February 2017, have any bank account/s with Westpac Banking Corporation?

2. If yes, then in what period were the bank account/s held?

3. What were the account number/s of any bank account held?

4. Was any other person authorised to operate these account/s?

5. If so, in respect of any such accounts, who and in what range was the authorisation?

6. What amount of money was in each of the account/s on 20 February 2017? Was that money withdrawn on that date or after that date?

7. If so, when and by whom?

5. That the Plaintiff file the witness’s Affidavit and provide a copy to the Registrar by email within 3 days of its service.

6. That the Affidavit be taken to be the Witness’s evidence in chief for the purposes of rr 24.9 and 24.12 of the Uniform Civil Procedure Rules 2005 (NSW).

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Decision last updated: 16 May 2018