Nanoteko Pty Ltd v Nanotech Industrial Solutions Inc

[2022] NSWSC 693

Supreme Court

New South Wales

Medium Neutral Citation:

Nanoteko Pty Ltd v Nanotech Industrial Solutions Inc [2022] NSWSC 693

Hearing dates:

18 May 2022

Date of orders:

18 May 2022

Decision date:

18 May 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Leave granted to the plaintiff to issue a subpoena to produce documents addressed to Mr Nathan Pring in the form appearing at Annexure “A” to the sealed short minutes of order, made on 18 May 2022 (Subpoena to Produce Documents).

(2) The matter be listed for further directions on 8 June 2022.

Catchwords:

EVIDENCE ON COMMISSION – ex parte application – orders sought pursuant to ss 32 and 33 of the Evidence on Commission Act 1995 (NSW) – Request for Assistance by the United States District Court for the District of New Jersey for documents to be produced – orders made – no question of principle

Legislation Cited:

Evidence on Commission Act 1995 (NSW), ss 32, 33

Cases Cited:

Nanoteko Pty Ltd v Nanotech Industrial Solutions Inc [2022] NSWSC 272

Category:

Procedural rulings

Parties:

Nanoteko Pty Ltd (Plaintiff)
Nanotech Industrial Solutions Inc (Defendant)

Representation:

Counsel:
T Bagley (Plaintiff)
Ex parte (Defendant)

Solicitors:
William James Lawyers (Plaintiff)
Ex parte (Defendant)

File Number(s):

2022/00069380

ex tempore Judgment (revised)

1. On 14 March 2022, Justice N Adams heard a notice of motion filed by the plaintiff, seeking a variety of orders under the Evidence on Commission Act 1995 (NSW). [1] The judgment sets out the relevant factual background and legal issues with her Honour’s customary clarity. I do not propose to repeat it.

   1. See Nanoteko Pty Ltd v Nanotech Industrial Solutions Inc [2022] NSWSC 272.

2. Her Honour made all but one of the orders sought. The order that was not made was an order granting leave to the plaintiff to issue a subpoena to a named person and that proposed witness to be examined on commission to produce documents. The reason her Honour declined to grant leave was that the foreign court requesting assistance - that is, the United States District Court for the District of New Jersey - had not specifically requested that such a subpoena should issue.

3. Her Honour noted that that was probably an oversight but, even so, took the view that the statutory prerequisites were not fulfilled and, accordingly, the Court was not authorised to grant leave.

4. The plaintiff has now rectified that omission. A supplemental letter of request, as styled over the hand of The Honourable Judge Cathy L Waldor of the United States District Court for the District of New Jersey, was tendered this morning amongst a bundle of documents otherwise relevant to the Court’s authority, power and discretion under the Evidence on Commission Act. That request includes, at [4]:

“The Court respectfully requests that, upon presentation of this order and supplemental letter of request by Nanoteko, the Supreme Court of New South Wales issue any appropriate Orders in aid of taking such examination of Nathan Pring and production of documents by him, and issue and enforce any subpoena or other process which may be necessary or appropriate for the attendance of said witness, the production of documents by him, and the taking of such examinations, pursuant to the law of Australia and Court Rules of the Supreme Court of New South Wales.”

5. And further, at [8] on p 6 in the next part of the order:

“This Court requests that the Supreme Court of New South Wales compel Mr. Pring to produce documents regarding the testing that TestSafe Australia performed for Nanoteko, the report that TestSafe Australia issued concerning that testing, and Test Safe Australia’s qualifications to perform such testing. Mr Pring has informed Nanoteko that he will comply with any order or subpoena issued by the Supreme Court of New South Wales once it is served upon him.”

6. Based on this request, the documentation, the desirability of comity explained by N Adams J[2] and as authorised and required by the statute, specifically ss 32 and 33 of the Evidence on Commission Act, I am satisfied that the orders now sought should be made, and should be made as sought by the plaintiff ex parte.

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2. Nanoteko Pty Ltd v Nanotech Industrial Solutions Inc [2022] NSWSC 272 at [22]-[23].

Endnotes

Decision last updated: 27 May 2022