In the matter of a request from the Didim 1st Civil Court of..

[2020] NSWSC 816

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 of the Evidence on Commission Act 1995 (NSW); In the matter of a request from the Didim 1st Civil Court of First Instance of the Republic of Turkey in case file no. 2018/5, Izmir/Turkey for assistance [2020] NSWSC 816

Hearing dates:

25 June 2020

Date of orders:

25 June 2020

Decision date:

25 June 2020

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) Pursuant to s 33 of the Evidence on Commission Act 1995 (NSW), leave is granted to the plaintiff to issue and serve a Subpoena to Attend to Give Evidence addressed to Güler Peker, described in the Request to be of [Address in NSW], in the form of Annexure “B” to the affidavit of Jimmy Taing affirmed 16 June 2020.

(2) A Registrar of this Court is appointed as Examiner in relation to the examination of Güler Peker under r 52.2 of the Uniform Civil Procedure Rules 2005 (NSW).

(3) A copy of the Summons, the affidavit of Mr Taing affirmed 16 June 2020 and these Orders be served on Güler Peker.

(4) The plaintiff has leave to approach the Court to appoint a date and place for the examination of Güler Peker.

(5) Following the completion of the examination of Güler Peker:

(a) A transcript of the examination be prepared and certified in accordance with rules 24.14(1)–(3) of the Uniform Civil Procedure Rules 2005 (NSW).

(b) The certified transcript, and any exhibit is to be retained by the examining Registrar and be sent by the examining Registrar to the Principal Registrar of the Supreme Court in accordance with rules 52.4(3) and 52.4(4) of the Uniform Civil Procedure Rules 2005 (NSW).

(c) A Registrar of this Court is to issue a sealed Certificate, and send that Certificate and annexure to the plaintiff, in accordance with rule 52.5 of the Uniform Civil Procedure Rules 2005 (NSW).

Catchwords:

EVIDENCE ON COMMISSION – Evidence on Commission Act 1995, s 32— Application for assistance in obtaining evidence for proceedings in the Republic of Turkey– Leave granted to issue subpoena to attend to give evidence

Legislation Cited:

Evidence on Commission Act 1995 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

Attorney General in and for the state of New South Wales (Plaintiff)

Representation:

Counsel:
D Tynan (Plaintiff)

Solicitors:
NSW Crown Solicitor (Plaintiff)

File Number(s):

2020/178349

Judgment Ex tempore

1. By a summons filed on 16 June 2020 the Attorney General in and for the State of New South Wales applies under s 32 of the Evidence on Commission Act 1995 (NSW) (the EC Act) for the examination of Ms Güler Peker of Lane Cove North.

2. The application is supported by the affidavit of Mr Jimmy Taing affirmed on 16 June 2020 which sets out relevant matters and annexes various documents. The documents annexed to the affidavit establish that a request has been issued by the Didim 1^st Civil Court of First Instance of The Republic of Turkey for assistance in obtaining evidence for proceedings before that Court.

3. Annexed to the affidavit of Mr Taing is a Letter of Request from the requesting Court dated 6 May 2019, together with a certified translation into English of that letter, as well as some Articles of the Turkish Civil Procedure Code relating to witnesses and evidence, also in English translation. There was also annexed to the affidavit a draft Subpoena to Attend to Give Evidence addressed to Ms Peker, drafted to give effect to the Letter of Request, should this application be approved.

4. The Letter of Request identified the parties to the proceedings in the requesting court and the file number of the proceedings. The information provided in the Letter of Request also indicates that the proceedings relate to an inheritance dispute arising out of what is alleged to be a sham or fictitious property transaction involving Ms Ayse Harcamaz and the respondent to the proceedings Ms Fatma Eroglu, contrary to Turkish property law, thereby allegedly depriving the plaintiffs in the proceedings of their rightful inheritance. This transaction is alleged to have occurred in 1968.

5. The document goes on to request that, because Ms Peker has been named by the respondent to testify in the proceedings, the Australian Judicial authorities assist in relation to her giving of evidence. The Letter of Request also sets out a number of questions in relation to both the property transfer and the testamentary aspects of the proceedings, including: whether Ms Peker knew the parties involved in the proceedings and whether there is any relationship between her and them; whether there was any animosity between her and the parties; whether she knew the testator or anything regarding the testator’s or the respondent’s financial welfare in 1968 and 1970; whether she knew anything about the real property transaction or any details of the transaction; whether she knew any of disputes between the parties before the testator died; whether the testator left any inheritance for the plaintiffs; and, related matters.

6. Under the EC Act, there are three prerequisites that are required to be satisfied before this Court would make the orders sought. The first is that the application before the Court is made in pursuance of a request issued by a court exercising jurisdiction in a place outside New South Wales, under s 32(1)(a) of the EC Act. The requesting court is defined in s 31 of the Act as a court or tribunal on whose behalf a request is issued. I am satisfied that this request has been made by such a court in that the documentation before me discloses that the Didim 1^st Civil Court of First Instance of The Republic of Turkey has made the request.

7. The second prerequisite, under s 32(1)(b) of the EC 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. The documentation before me establishes that proceedings have indeed been commenced in relation to an inheritance dispute arising out of what is alleged to be a fictitious transaction prior to a testator’s death, and the file number for the proceedings has been cited.

8. The third prerequisite, outlined in s 32(2) of the EC Act, is that the overseas proceedings do not relate 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. This does not appear to be the case in these proceedings as the proceedings relate to the title to certain real property and an inheritance dispute.

9. Furthermore, the contents of the proposed subpoena to attend to give evidence annexed to Mr Taing’s affidavit, fall within the powers of this Court to give effect to an application for assistance, as prescribed in s 33(3)(a) of the Act, and what is proposed can be required for the purposes of proceedings in the Supreme Court within the meaning of s 33(4) of the EC Act.

10. I am therefore satisfied that the requirements of the EC Act have been satisfied for the purposes in this application. I also note further the general principle that it is appropriate to lend assistance to foreign courts of proper jurisdiction and that comity requires this Court to view a letter of request, such as this, issued by a foreign court benevolently.

Orders

11. Accordingly, the orders of the Court are:

1. Pursuant to s 33 of the Evidence on Commission Act 1995 (NSW), leave is granted to the plaintiff to issue and serve a Subpoena to Attend to Give Evidence addressed to Ms Güler Peker, described in the Letter of Request to be of [Address in NSW], in the form of Annexure “B” to the affidavit of Jimmy Taing affirmed 16 June 2020.

2. A Registrar of this Court is appointed as Examiner in relation to the examination of Ms Peker under r 52.2 of the Uniform Civil Procedure Rules 2005 (NSW).

3. A copy of the Summons, the affidavit of Mr Taing affirmed 16 June 2020 and these Orders be served on Ms Peker.

4. The plaintiff has leave to approach the Court to appoint a date and place for the examination of Ms Peker.

5. Following the completion of the examination of Ms Peker:

1. A transcript of the examination be prepared and certified in accordance with rr 24.14(1)–(3) of the Uniform Civil Procedure Rules 2005 (NSW).

2. The certified transcript, and any exhibit is to be retained by the examining Registrar and be sent by the examining Registrar to the Principal Registrar of the Supreme Court in accordance with rr 52.4(3) and 52.4(4) of the Uniform Civil Procedure Rules 2005 (NSW).

3. A Registrar of this Court is to issue a sealed Certificate, and send that Certificate and annexure to the plaintiff, in accordance with r 52.5 of the Uniform Civil Procedure Rules 2005 (NSW).

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Decision last updated: 26 June 2020