In the Application of the Attorney-General of NSW

[2024] NSWSC 765

Supreme Court

New South Wales

Medium Neutral Citation:

In the Application of the Attorney-General of NSW [2024] NSWSC 765

Hearing dates:

14 June 2024

Date of orders:

14 June 2024

Decision date:

14 June 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

See [13]

Catchwords:

EVIDENCE – Evidence on commission – Application for examination of a witness under s 32 of the Evidence on Commission Act 1995 – Request from the Labour Court of Montevideo.

Legislation Cited:

Evidence on Commission Act 1995

Cases Cited:

British American Tobacco Australia Services Ltd v Eubanks [2004] NSWCA 158; (2004) 60 NSWLR 483

Gredd v Arpad Buson [2003] EWHC 3001

Texts Cited:

Not Applicable

Category:

Principal judgment

Parties:

Attorney-General for NSW (P)

Representation:

Counsel:
D Tynan (P)

Solicitors:
NSW Crown Solicitor

File Number(s):

2024/172219

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. In this matter, application is made by the Attorney General in and for the State of New South Wales for orders giving effect to Letters Rogatory received from the Embassy of Uruguay on behalf of the Labour Court of Montevideo, a city in the Oriental Republic of Uruguay.

2. The evidence satisfies me that the Court is to deal with the matter in accordance with the provisions of the Evidence on Commission Act 1995 ("the Act").

3. Part 4 of the Act relates to the taking of evidence for foreign courts. Pursuant to s 32(1), the provisions of Part 4 apply if this Court is satisfied, upon application being made to it, of two things so that an order can be made for evidence to be obtained in the State of New South Wales:

“(a)    that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside the State, and;

(b)    that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.”

4. The facts demonstrate that the application made to this Court seeks to give assistance to the Labour Court of Montevideo and that the Letters Rogatory have been issued on the official stationery of the Judicial Branch of the Republic. Accordingly, I am satisfied that the application before me complies with s 32(1)(a) of the Act.

5. The second matter in which this Court is required to be satisfied by s 32(1)(b) of the Act is that the evidence to which the application relates is to be obtained for the purposes of proceedings which have been instituted before the requesting court.

6. I am satisfied from the material before me that, at the time the Letters Rogatory were sent, proceedings had been commenced before the Labour Court of Montevideo between various named plaintiffs and a corporation called Esturiones Del Rio Negro SA and that the file of those proceedings has been allocated the number 2-49619/2021.

7. The plaintiff in the proceedings is Mr Javier Alcalde Quinones who lives in the city of Montevideo and the Letters Rogatory establish that the defendant company also is domiciled in the city of Montevideo. Accordingly, the Labour Court there has relevant jurisdiction.

8. This material satisfies me that the application complies with s 32(1)(b) of the Act. Accordingly, I am satisfied that I have the power to make such provision for obtaining evidence by ordering the State, as may appear to me to be appropriate.

9. In considering whether to accede to this application, I take into account some general principles which are to be derived from the decision in this State of British American Tobacco Australia Services Ltd v Eubanks [2004] NSWCA 158; (2004) 60 NSWLR 483 and the judgment of Burnton J in Gredd v Arpad Buson [2003] EWHC 3001 at [27].

10. Those principles do not require repeating, but it is important to recognise that the Court on the hearing of an application such as this is acting in respect of this request because comity requires this Court to do so and it is our obligation as a Court of this State to assist foreign courts to give effect to civil litigation taking place before those courts.

11. It is clear that the request being made by the Labour Court of Montevideo is for an entirely legitimate purpose, namely that a relevant witness in existing proceedings in that Court be examined before a Registrar of this Court.

12. I am satisfied that the orders sought do no more than is reasonable to give effect to the request of the Labour Court of Montevideo and this Court is pleased to provide its assistance to that Court.

Orders

13. I make the following orders:

1. Order, pursuant to s 33 of the Evidence on Commission Act 1995 (NSW), that leave be granted to the plaintiff to issue and serve a subpoena to give evidence addressed to Mr Joshua Samuel Rea of Waimea Trading (ABN 84383067012) with the business address 1, 52‑60 New South Head Road, Edgecliff 2027 for him to be examined as a witness.

2. Order that a registrar of this Court be appointed as examiner in relation to the examination of Mr Rea.

3. I grant leave to the plaintiff to approach the registrar to appoint a date for the examination.

4. Order that upon completion of the examination of Mr Rea:

1. A transcript of the examination be prepared and certified in accordance with Rule 24.14(1)-(3) of the Uniform Civil Procedure Rules 2005;

2. That the certified transcript and any exhibit retained by the examining registrar be sent by the examining register to the principal registrar of the Supreme Court in accordance with rules 52.4(3) and 52.4(4) of the UCPR and that a registrar of this Court issue a sealed certificate and send that certificate and annexures to the plaintiff in accordance with rule 52.5 of the UCPR.

5. Order that at the time of service of the subpoena, issued pursuant to Order 1 above, Mr Rea be served with copies of:

1. The amended summons filed in these proceedings;

2. The affidavit Robin Ken Ming Lee, affirmed on 9 May 2024 and filed in these proceedings; and

3. These orders of the Court.

6. Order that there be no order as to costs of the amended summons filed 14 June 2024 or of the original summons commencing these proceedings.

7. Grant the parties liberty to apply.

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Decision last updated: 25 June 2024