Indochina Medical Co Pty Ltd v Nicolai

The appeal before the Court of Appeal of New South Wales, constituted by Barrett, Emmett and Gleeson JJA, concerned an application by Indochina Medical Co Pty Ltd (the appellant) for the issue of commissions or letters of request to facilitate the examination of persons in France and Switzerland. The proposed procedure involved a commissioner interviewing individuals, determining the relevance of elicited facts to the appellant's case, and recording these facts in affidavits sworn before the commissioner. An alternative application sought letters of request directed to the judicial authorities of those countries, with a similar objective of eliciting, selecting, and recording facts, without a prior statement or description of the evidence to be adduced.

The central legal issues before the Court were whether the proposed procedure for the examination of witnesses in France and Switzerland was a proper subject for a commission under the *Evidence on Commission Act 1995* (NSW), and whether letters of request should be ordered for the same purpose. The Court was required to consider the scope and limitations of these mechanisms for obtaining evidence from overseas.

The Court reasoned that the proposed procedure, which involved the commissioner actively selecting and recording facts deemed relevant to the appellant's case, went beyond the ordinary function of a commission or letters of request. Such a process risked the commissioner acting as an advocate or investigator rather than a neutral facilitator of evidence gathering. The Court noted that the *Evidence on Commission Act 1995* was not intended to permit a party to pre-select evidence in this manner. Consequently, the Court determined that the appeal should be dismissed.

The Court ordered that time for filing the summons seeking leave to appeal be extended to 4 July 2013, granted leave to appeal, and directed that a notice of appeal be filed within seven days. Ultimately, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the proceedings in the Court of Appeal.