In the matter of a request from the Civil and..
[2016] NSWSC 834
•21 June 2016
Supreme Court
New South Wales
Medium Neutral Citation: In the Application of her Majesty's Attorney General in and for the State of New South Wales under s 32 and s 33 of the Evidence on Commission Act 1995 (NSW); ; In the matter of a request from the Civil and Commercial Court of First Instance No 4 in Dolores, Buenos Aires, Argentina, for the taking of evidence and the production of documents from Westpac Banking Corporation [2016] NSWSC 834 Hearing dates: 20 June 2016 Date of orders: 21 June 2016 Decision date: 21 June 2016 Jurisdiction: Common Law Before: Schmidt J Decision: (1) Unless within 14 days of service of a sealed copy of these Orders upon Westpac Banking Corporation (ACN 007 457 141) of 275 Kent Street, Sydney NSW 2000 ("Westpac"), Westpac makes application by way of Notice of Motion to set aside these Orders, leave is granted to the Plaintiff to issue a Subpoena addressed to the Proper Officer of Westpac in the form of the proposed Subpoena at Annexure "A" (as amended) to the Summons.
(2) Any documents produced pursuant to the Subpoena referred to in Order 1 above be certified by a Registrar of this Court as documents produced by Westpac in these proceedings.
(3) The Plaintiff be given photocopy access to the documents produced in response to the Subpoena referred to in Order 1.
(4) 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 Civil and Commercial Court of First Instance No. 4 in Dolores, Buenos Aires, Argentina.
(5) At the time of service of these Orders, Westpac also be served with copies of:
(a) the Summons;
(b) the Affidavit of Paul Rankins affirmed 3 June 2016;
(c) a copy of the Subpoena referred to in Order 1.Catchwords: EVIDENCE - Evidence on Commission Act 1995 (NSW) - request from Argentinian Court - ex-parte application - orders made Legislation Cited: Evidence on Commission Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Procedural and other rulings Parties: Attorney-General for the State of New South Wales (Plaintiff) Representation: Counsel:
Solicitors:
Mr A Gerard (Plaintiff)
Crown Solicitor’s Office (Plaintiff)
File Number(s): 2016/174756 Publication restriction: None
Judgment
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By summons filed on 7 June 2016, the Attorney-General sought orders under s 33 of the Evidence on Commission Act 1995 (NSW) in respect of a request received from the Civil and Commercial Court of First Instance No 4 in Dolores Buenos Ares Argentina in relation to the production of documents relevant to proceedings before that Court, concerning purchases made in Buenos Ares with a Visa credit card.
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Sections 32 and 33 of the Evidence on Commission Actprovide:
“32 Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court
(1) The following provisions of this Part apply if an application is made to the Supreme Court for an order for evidence to be obtained in the State and the Court is satisfied:
(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.
(2) This Part does not apply in respect of proceedings relating to the commission of an offence or an alleged offence unless the requesting court is a court of a place in Australia or of New Zealand.
33 Power of the Supreme Court to give effect to application for assistance
(1) The Supreme Court has power, if an application is made under section 32, by order to make such provision for obtaining evidence in the State as may appear to the Court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made.
(2) An order under this section may require a specified person to take such steps as the Court may consider appropriate for that purpose.
(3) Without limiting the generality of subsections (1) and (2), an order under this section may, in particular, make provision as follows:
(a) for the examination of witnesses, either orally or in writing,
(b) for the production of documents,
(c) for the inspection, photographing, preservation, custody or detention of any property,
(d) for the taking of samples of any property and the carrying out of any experiments on or with any property,
(e) for the medical examination of any person,
(f) without limiting paragraph (e), for the taking and testing of samples of blood from any person.
(4) An order under this section is not to require any particular steps to be taken unless they are steps that can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates).
(5) Subsection (4) does not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath if this is asked for by the requesting court.
(6) An order under this section must not require a person:
(a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person’s possession, custody or power, or
(b) to produce any documents other than particular documents specified in the order and appearing to the court making the order to be, or likely to be, in the person’s possession, custody or power.
(7) A person who, because of an order under this section, is required to attend at any place is entitled to similar conduct money and payment for expenses and loss of time on attendance as is a witness in proceedings before the Supreme Court.”
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In accordance with Part 52 of the Uniform Civil Procedure Rules2005 (NSW), the application was heard ex parte. The orders finally sought were:
“1 Unless within 14 days of service of a sealed copy of these Orders upon Westpac Banking Corporation (ACN 007 457 141) of 275 Kent Street, Sydney NSW 2000 ("Westpac"), Westpac makes application by way of Notice of Motion to set aside these Orders, leave is granted to the Plaintiff to issue a Subpoena addressed to the Proper Officer of Westpac in the form of the proposed Subpoena at Annexure "A" (as amended) to the Summons.
2 Any documents produced pursuant to the Subpoena referred to in Order 1 above be certified by a Registrar of this Court as documents produced by Westpac in these proceedings.
3 The Plaintiff be given photocopy access to the documents produced in response to the Subpoena referred to in Order 1.
4 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 Civil and Commercial Court of First Instance No. 4 in Dolores, Buenos Aires, Argentina.
5 At the time of service of these Orders, Westpac also be served with copies of:
(a) the Summons;
(b) the Affidavit of Paul Rankins affirmed 3 June 2016;
(c) a copy of the Subpoena referred to in Order 1.”
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The proposed subpoena requires the production of account statements; other documents relating to two specified Visa credit cards; documents recording purchases made with those cards from an identified business on specified dates in February 2014; documents relating to the dispute over the claimed payments; and Westpac’s authorisation of payments in respect of those purchases.
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The summons was supported by an affidavit sworn by Mr Rankins, a solicitor employed in the Crown Solicitor’s office, annexed to which were the request received from the Argentinian Court; letters Rogatory of 7 August 2015 and 5 January 2016; english translations; as well as a February 2016 letter from the Secretary of the New South Wales Department of Justice to the Crown Solicitor, confirming the Solicitor General’s consent, under delegated authority, to the request from the Argentinean Court being given effect.
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These documents evidence that there are on foot civil proceedings in the Argentinean Court, entitled “Electronica Siccardi de Pablo Y Esteban Siccardi and others vs Visa Argentina S.A., In re: expedite collection of sums of money”.
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Both the order and the subpoena were recast after the hearing. The subpoena was recast after I raised concerns as to the breadth of the initially proposed production, given what appeared to be in issue in the Argentinean proceedings. The order was recast to give Westpac the opportunity to approach the Court, before the subpoena is issued.
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Having considered the evidence and the submissions advanced for the Attorney-General, I am satisfied that the requirements of s 32 have been satisfied, the evidence establishing both that the application was made in pursuance of a request issued by or on behalf of the Civil and Commercial Court of First Instance No 4 in Dolores Buenos Ares Argentina, which exercises jurisdiction in a place outside the State, and that the documents to which the application relates are to be obtained for the purposes of proceedings which have been instituted before that court.
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Under s 33, I am also satisfied that it is appropriate, for the purpose of giving effect to the Argentinean Court’s request, that the production of the documents sought under the proposed subpoena, be required.
Order
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Accordingly, I order that:
Unless within 14 days of service of a sealed copy of these Orders upon Westpac Banking Corporation (ACN 007 457 141) of 275 Kent Street, Sydney NSW 2000 ("Westpac"), Westpac makes application by way of Notice of Motion to set aside these Orders, leave is granted to the Plaintiff to issue a Subpoena addressed to the Proper Officer of Westpac in the form of the proposed Subpoena at Annexure "A" (as amended) to the Summons.
Any documents produced pursuant to the Subpoena referred to in Order 1 above be certified by a Registrar of this Court as documents produced by Westpac in these proceedings.
The Plaintiff be given photocopy access to the documents produced in response to the Subpoena referred to in Order 1.
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 Civil and Commercial Court of First Instance No. 4 in Dolores, Buenos Aires, Argentina.
At the time of service of these Orders, Westpac also be served with copies of:
the Summons;
the Affidavit of Paul Rankins affirmed 3 June 2016;
a copy of the Subpoena referred to in Order 1.
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Decision last updated: 21 June 2016
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