Application by Attorney General in and for the State of New South Wales

Catchwords: EVIDENCE ON COMMISSION – Application for assistance in obtaining evidence for proceedings in the Prague District Court – Orders made

Legislation Cited: Evidence on Commission Act 1995 (NSW), ss 32, 33(1), 33(3)
Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters

Cases Cited: British American Tobacco Australia Services Limited v Eubanks for the United States of America (2004) 60 NSWLR 483; [2004] NSWCA 158

Category: Procedural rulings

Parties: Attorney General of New South Wales (Plaintiff)

Representation: Counsel:
D Tynan (Plaintiff)
Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2025/204061

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. This matter comes before me today by way of a summons filed on 27 May 2025, seeking orders pursuant to ss 32, 33(1) and 33(3)(b) of the Evidence on Commission Act 1995 (NSW).

2. Mr Tynan of counsel appears for the plaintiff. The application is made ex parte. Mr Tynan provided concise and very helpful submissions as to the reason that the orders were sought and the basis on which the orders should be made according to the plaintiff.

3. As set out in the summons, the plaintiff seeks orders that the Commonwealth Bank and ING Bank produce account statements for accounts, products, and investments held in the name of Anna Hassan, as of 6 May 2021. The reason that the plaintiff seeks these orders is that the Attorney General has received a request for international judicial assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.

4. In support of the application, the plaintiff relies on the affidavit of Rebecca Sui Ming Lim Ku, dated 26 May 2025. Annexed to the affidavit is the request for international assistance as well as the proposed subpoenas prepared by the plaintiff about which the plaintiff seeks orders.

5. As submitted by Mr Tynan, in considering whether I should make the orders, regard must be had to the principles set out in British American Tobacco Australia Services Limited v Eubanks for the United States of America (2004) 60 NSWLR 483; [2004] NSWCA 158 (“British American Tobacco”).

6. The principles which are to be applied are set out at [42] of that judgment as follows:

“’(1) Comity requires this court to view a letter of request issued by a foreign court for the purpose of civil proceedings before it benevolently. It is our pleasure and duty to assist those courts and the parties to them in arriving at a fair and just determination of their civil litigation where we can properly do so.

(2) Nonetheless when an application for an order under the Act is disputed, the High Court must determine whether the order sought is one which it can or should properly make.

(3) The issue whether the order sought is for an illegitimate investigation rather than to obtain evidence to be adduced at trial is to be determined principally by reference to the terms of the letter of request and of the proposed order of this court. However, the court will consider the evidence before it as a whole.

(4) Particularly pertinent will be the stage at which the order is sought and the extent to which the party seeking the order is able to demonstrate that the information sought is relevant to issues in the foreign proceedings in the sense of being capable of being adduced at trial in support of those issues.

(5) The fact that testimony is sought as part of the discovery process in the United States proceedings is not of itself decisive. The fact that it is sought at the discovery stage is an indication that what is sought is discovery. However, the High Court has power to make an order for such testimony to be taken if it is limited to evidence to be adduced at trial. The court has a discretion to refuse to make an order at that stage even for such evidence to be taken on the grounds that it is premature, for example, and that the deposition of the proposed witness will be more efficiently and shortly taken, involving less inconvenience or intrusion into matters confidential to him or to other third parties, if it is taken at a later stage.

(6) Statements in a letter of request to the effect that evidence is sought for use at trial are relevant but not conclusive. The letter of request must be viewed as a whole.

(7) This court will take into account anything in the evidence before it that indicates that the party that obtained the order for the letter of request appreciated and took into account the differences between United States and English procedural rules.

(8) Similarly, the court will take into account evidence that the US judge appreciated and took into account those differences. In this connection, this court appreciates that orders for the issue of letters of request are normally made by the US judge without any real scrutiny. The order is normally made in the terms sought by the applicant without any (or any significant) amendment and without the judge being informed of the significant differences between US federal procedure and those of these courts.

(9) The fact that the evidence sought is described in wide or general terms is not inconsistent with its being sought for the trial. There will be occasions where the subject matter of the testimony sought is so extensive as to preclude specification. However, where that is the case, the court in the exercise of its discretion may refuse to make an order on the basis that it would be oppressive to the witness to require him to prepare himself to give evidence and to require him to give evidence without identification of the matters to be addressed. See State of Minnesota v. Philip Morris Incorporated & Ors., a decision of the Court of Appeal of 30th July 1997.

(10) The court will take into account any safeguards or restrictions incorporated in the terms of the proposed order. However, the order made by this court cannot depart substantially from the terms of the letter of request. The requirement of the statute is that the order of the court give effect to the letter of request. The limitation on the power of amendment of the terms of the deposition sought by the letter of request was referred to by Lord Fraser in the Westinghouse case [1978] AC 547 , 644-645 and in turn by Sir Richard Scott V.C. at p.1169 of First American Corporation.

(11) Generally an order may be refused or set aside on the grounds that would lead this court to set aside a witness summons – oppression being one of those grounds.

(12) This court will not in general seek to determine whether evidence sought here will be admissible under the law of the foreign court. However, doubts as to admissibility may be taken into account. Issues of relevance will be addressed by this court, notwithstanding that relevance and admissibility may raise identical issues. An example of an enquiry into relevance by the English court is to be found at para.14 of the judgment of the Court of Appeal in the Genira Trade & Finance case and at p.1165 of the judgment the Vice-Chancellor in First American, in which he said:

‘In my opinion, therefore, an English court must look at the issue of the relevance of the requested testimony, if it is raised, in broad terms, leaving to the foreign court, in all but the clearest cases, the decision as to whether particular answers, or answers on particular topics, would constitute relevant admissible evidence.’

(13) In determining whether an order offends the statutory prohibition in relation to discovery of documents, the court must address the terms of the order rather than the claimed intentions of the party seeking it. An order requiring the deponent to say whether he has any documents relevant to the foreign proceedings offends against section 2(4)(a). An order made requiring him to say whether he has had any communication relevant to the foreign proceedings, in my judgment, is similarly illegitimate since ‘communication’ includes a documentary communication and the order would require the deponent to state whether or not he has or had such a document. Put otherwise, such an order would circumvent the statutory prohibition and is not to be made for that reason.

(14) Similar principles must apply where what is sought is a deposition without any written documents. The person conducting the examination of the witness, the witness himself, those representing him and those representing the parties to the foreign litigation must be able to ascertain the limits of proper questioning of the witness from the terms of the order itself.’”

7. Mr Tynan directs my attention particularly to items 1, 2, 3, 4, 6, 9 and 12, being matters which are relevant to this application. As observed in British American Tobacco, the purpose of the Convention is to enable a foreign Court to obtain assistance from a New South Wales Court in the conduct of proceedings in that foreign jurisdiction.

8. Having said that, this Court must determine whether the orders should be made. The Court will view the request benevolently but must also ensure that the application is being made for a legitimate request. Any order made by this Court cannot depart substantially from the terms of the letter of request, but there is a limitation on what orders this Court can make. Specifically, this Court should not make orders that it would not ordinarily make in litigation conducted in this Court.

9. That is particularly significant in this matter, as in the letter of request from the Prague District Court, the Court seeks that both the Commonwealth Bank and the ING Bank attend for examination and produce documents comprising “all and any other products or services/stroke claims or liabilities, if any, which ING may know about and which were owned by the testator as of the date of her death and have to be handed over to the heir.”

10. The litigation in the District Court in Prague is to determine the extent of the property owned by a testator, Ms Hassan, for the benefit of the heir. As said in the letter of request, the nature and purpose of the proceedings is the assessment of property owned so that a ruling is to be made in what is described as ‘the inheritance matter’. However, as Mr Tynan submits, it is not permissible to request that a corporation attend for examination. Only individuals can be required to attend for examination.

11. Further, the scope of the request for documents is so broad that it would be considered oppressive, and this Court would not ordinarily make an order in those terms. However, Mr Tynan says that having considered the matter and having regard to his advice, the plaintiff has determined that the request can be met by means of a subpoena on both the Commonwealth Bank and the ING Bank in conventional terms; that is, a subpoena requiring both banks to produce copies of bank account statements held during the relevant period in the name of Ms Hassan.

12. Whilst I accept what is said in British American Tobacco, it is not the function of this Court to depart substantially from the terms of the letter of request. I also consider that any letter of request must be considered beneficially and be interpreted in such a way such that it can be given effect through procedures and principles which would be applied in New South Wales. This Court would not require a corporation to attend for examination and this Court would not issue a subpoena in the broad terms set out in the letter of request. It would, however, issue subpoenas in the terms set out in the proposed subpoenas prepared by the plaintiff.

13. In these circumstances, I am satisfied that at least part of the letter of request can be given effect to, albeit not the whole of the letter of request. The fact that I decline to make an order requiring the corporations to attend for examination does not mean that I should merely dismiss the application. Rather, I should give effect to the letter of request in accordance with the laws of New South Wales.

14. In the circumstances, I consider that I should make the orders sought in the summons and as set out in the proposed order prepared by the plaintiff. I make the following orders:

15. Order pursuant to ss 32, 33(1) and 33(3)(b) of the Evidence on Commission Act 1995 (NSW) that:

(a) the Commonwealth Bank of Australia produce account statements for all accounts, products and investments held in the name of Anna Hasan (DOB: 4 May 1945) with the Commonwealth Bank of Australia as at 6 May 2021; (b) ING Bank (Australia) Limited produce account statements for all accounts, products and investments held in the name of Anna Hasan (DOB: 4 May 1945) with ING Bank (Australia) Limited as at 6 May 2021.

2. Order granting the plaintiff leave to issue and serve subpoenas to produce addressed to:

(a) The Proper Officer, Commonwealth Bank of Australia, in the form annexed to the affidavit of Rebecca Kiu affirmed on 26 May 2025 at Annexure B; (b) The Proper Officer, ING Bank (Australia) Limited, in the form annexed to the affidavit of Rebecca Kiu affirmed on 26 May 2025 at Annexure C.

3. Order that any documents produced pursuant to the subpoena referred to in order 2(a) be certified by a Registrar of this Court as documents produced by the Commonwealth Bank of Australia in these proceedings.
4. Order that any documents produced pursuant to the subpoena referred to in order 2(b) be certified by a Registrar of this Court as documents produced by ING Bank (Australia) Limited in these proceedings.
5. Order granting the plaintiff photocopy access to any documents produced by the Commonwealth Bank of Australia and ING Bank (Australia) Limited in these proceedings.
6. Order that at the time of service of the subpoenas issued pursuant to order 2 above, the Commonwealth Bank of Australia and ING Bank (Australia) Limited be served with copies of:

(a) this Summons; (b) the affidavit of Rebecca Kiu affirmed on 26 May 2025; and (c) the orders of the Court providing for the issue and service of the subpoenas.

7. There be no order as to costs.

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