British American Tobacco Australia Services Ltd v Eubanks

British American Tobacco Australia Services Ltd (BATAS) and another party (collectively, the appellants) sought to appeal decisions of the primary judge concerning requests from a United States court for the examination of witnesses and the production of documents in Australia. The dispute centred on the interpretation and application of the *Evidence on Commission Act 1995* (Cth) and the *Evidence Act 1995* (Cth) in the context of foreign legal proceedings. The matter came before the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issues before the Court of Appeal were whether the term "evidence" in section 33 of the *Evidence on Commission Act 1995* encompassed documents that were already in the public domain, and whether the court retained a discretion to refuse to give effect to letters of request even where a use-immunity had been granted under section 34 of the Act. Further issues concerned the application of legal professional privilege to documents already in the public domain, and whether a third party, whose rights might be affected by the examination of a witness, should be joined as a party to the proceedings.

The Court of Appeal reasoned that the term "evidence" in section 33 of the *Evidence on Commission Act 1995* was not limited to material not already in the public domain, and that the weight to be given to letters of request was significant, though not determinative, in the exercise of the court's discretion. The court affirmed that section 34 of the Act, which provides for the granting of use-immunity, did not remove the court's discretion to refuse to give effect to a letter of request. Regarding legal professional privilege, the court held that documents in the public domain were unlikely to retain privilege, particularly where there was an implied consent to disclosure by a third party or an explicit consent to a procedure that could make documents publicly available. The court also determined that joinder of a third party was not necessary, as such a party could protect its interests by attending the examination and seeking to be heard.

The Court of Appeal allowed leave to appeal on specific grounds in one of the applications, but dismissed the appeal. Leave to appeal was refused in the other applications. The appellants were ordered to pay the respondents' costs in each case.