Application of Jan L Brodie v Ex parte Dunlop

The relevant statutory provisions

1. Sections 32-33 of the Evidence on Commission Act relevantly provide that: "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 … (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."
2. Mr Lange, who appears for Mr Waldron, submits, and I accept, that the Court has a discretion whether or not an order under s 33 of the Act may be made, which requires the Court to determine whether it is satisfied of the matters set out in s 32 of the Act and, if so, whether an order should be made under s 33 of the Act: British American Tobacco Australia Services Ltd v Eubanks [2004] NSWCA 158; (2004) 60 NSWLR 483 at [14]. In determining whether an order should be made, the Court may have regard to the factors summarised in Gredd v Arpad Busson [2003] EWHC 3001 at [27], and cited with approval by Spigelman CJ in British American Tobacco Australia Services Ltd v Eubanks above at [42], namely that: "(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. … (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. ... (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. … (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."
3. In an earlier judgment in this matter in Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2017] NSWSC 810, N Adams J also reviewed the scope of the relevant provisions in the Evidence on Commission Act and noted the Evidence on Commission Act enacts the provisions of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (entered into force 7 October 1972) 847 UNTS 231 as part of the law of New South Wales.

Whether CSC has standing to bring this application

1. There was an initial contest as to whether CSC has standing to bring this application, although that issue has been noted and resolved favourably to CSC in an earlier judgment of N Adams J in Application of Computer Sciences Corporation above and another earlier judgment of mine in the matter, albeit without a contradicting party. Mr Lange submits that CSC does not have standing to seek the orders and that the evidence filed on behalf of CSC does not reveal that it has been nominated by the Delaware Court of Chancery. Mr Lange also submits that the decision of Slattery J in Application of Jan L Brodie Ex parte Dunlop [2013] NSWSC 829 at [6]-[8] is not authority that a person who is to be notified of the time and place of execution of the request is "nominated" for the purposes of the relevant rule. Mr Lange also submits, and I accept, that less weight can be given to that matter in this case where notification of the time and place for execution of the request is to be notified to several parties' legal representatives, and not all of them were nominated to make the relevant request.
2. CSC's primary response to Mr Waldron's submissions about standing is that CSC is a person nominated for the purposes of r 52.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). Mr Emmett submits the letter of request itself recognised that CSC sought the sworn testimony and documents and thereby implied that it would bring this application to give effect to the letter of request which it sought from the Delaware Court of Chancery. The letter of request also referred to the steps which would be taken by CSC to give effect to the examination sought, although I recognise that they could, notionally, be taken by CSC even if the Attorney-General had brought the relevant application. Mr Emmett also responds to Mr Waldron's submissions about standing by contending that UCPR r 52.1 is facilitative but not exclusive; that the rule would be ultra vires if CSC were not a person nominated for its purposes; and that the Court can and should dispense with the operation of that rule. CSC did not seek to have the Court determine those alternative arguments, if I accepted, as I do, the primary submission that CSC was nominated in the letter of request for the purposes of UCPR r 52.1.
3. In Application of Computer Sciences Corporation above at [33]ff, N Adams J noted that s 32 of the Evidence on Commission Act refers to the making of an application in this Court but does not limit who can make such an application; s 33 of the Act similarly does not limit the persons who can bring such an application; and s 36 refers to the making of rules of Court which may deal, inter alia, with the manner in which such an application is to be made. Her Honour also noted that UCPR r 52.1 in turn provides for such an application to be commenced in this Court by a person nominated for that purpose by the requesting court, or if no person is so nominated, by the Attorney-General. Her Honour noted that the application before her, as is also the case here, was brought by CSC as a party to the Delaware proceedings which had made an application to the Delaware Court of Chancery, which had in turn issued the letters of request on its application. Her Honour noted that there were numerous references in the letter of request to the fact that CSC seeks the relevant evidence and in particular seeks sworn testimony from the relevant witnesses. Her Honour referred to several matters which led her to form the view that CSC had been nominated by the Delaware Court of Chancery to bring the relevant application. Her Honour also referred to the observations of Slattery J in Application of Jan L Brodie above, and the basis on which his Honour there found that an applicant had been nominated to bring the relevant application. Her Honour concluded (at [45]) that the letters of request in issue before her had nominated CSC as the relevant applicant, and referred specifically to the fact that CSC had been made liable for the costs incurred.
4. Notwithstanding Mr Lange's submissions to the contrary, I take the same view as N Adams J in Application of Computer Sciences Corporation above. It seems to me that the aspects of the letter of request to which N Adams J referred, and its logical structure, have the result that CSC is nominated to bring the relevant application by the Delaware Court of Chancery.

Issues as to the examination order sought in respect of Mr Waldron

1. I am also satisfied that CSC brings the application for the purposes of s 32 of the Act. The application is made pursuant to a request issued on behalf of a court exercising jurisdiction in a place outside New South Wales, namely the Delaware Court of Chancery, and s 32(1)(a) of the Act is satisfied. The letter of request makes clear that the evidence to which the application relates is to be obtained for the purposes of proceedings instituted before that Court and s 32(1)(b) of the Act is satisfied. Mr Waldron does not contend that the overseas proceedings relate, at least in any direct sense, to the commission of an offence, although associated matters have involved such criminal proceedings in the United States and Australia. In those circumstances, the exclusion in respect of proceedings for the commission of an offence in a court in a place outside of Australia or New Zealand under s 32(2) of the Act does not apply. I would have been satisfied that the requirements of ss 32 and 33 of the Evidence on Commission Act were satisfied in respect of the examination of Mr Waldron, and that it would be a proper exercise of comity to make the orders sought, in order to assist the Delaware Court of Chancery in the performance of its functions, subject to the further issues noted below.
2. Mr Waldron contends that his examination under the letter of request would be inconsistent with his exercise of the privilege against self-incrimination and would unfairly alter the character of his criminal trial. I should first refer to the applicable case law, before returning to Counsel's submissions and reaching a conclusion as to that issue.
3. Both Counsel referred to the circumstances in which civil proceedings would be stayed when criminal proceedings were pending, although I refer below to a debate as to the relevance of that question. Earlier cases often refer to several factors identified in McMahon v Gould (1982) 7 ACLR 202 in determining whether civil proceedings should be stayed. However, later case law has recognised that those factors may not give sufficient weight to the accused's right to a manifestly fair criminal trial: Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; Crespin v Francis [2016] VSC 277 at [23]. In X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 ("X7"), Hayne and Bell JJ, with whom Kiefel J agreed, addressed the question of a compulsory examination of an accused prior to a criminal trial. Their Honours observed that permitting questions to be asked about the subject of a pending charge, whether or not answers could be used in criminal proceedings, "fundamentally alters the process of criminal justice" (at [85]) in which the "accusatorial process of criminal justice and the privilege against self-incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong-doing" (at [104]). Their Honours also observed at [105] that the right to silence: "encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial."
4. Their Honours also observed (at [124]) that: "Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge."
5. That passage has since been approved by French CJ (at [54]) and by Kiefel J (with whom Bell J agreed) (at [163]) in Lee v New South Wales Crime Commission (2013) 251 CLR 196, and a similar view was there expressed by Hayne J (at [79]). In Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 361 ALR 23, the plurality referred (at [76]) to the observations of Hayne and Bell JJ in X7 above at [124] as having effect that: "As Hayne and Bell JJ observed in X7 (No 1) in relation to an unlawful compulsory examination conducted post charge, even if the answers given at a compulsory examination are kept secret, and so cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers after being charged fundamentally alters the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial and adversarial trial in the courtroom. The examinee can no longer decide the course which he or she should adopt at trial according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial …" [citation omitted]
6. In Ransley v Commissioner of Taxation [2016] FCA 778, Jagot J considered the question of a stay of civil proceedings, in the somewhat different situation that a witness who was facing criminal proceedings was the essential witness in the plaintiff's case. There is no suggestion here that Mr Waldron's evidence has that centrality to CSC's claims in the Delaware proceedings. However, I have had regard to her Honour's detailed review of the case law, and to her observation (at [24]) that: "Given recent authority … it cannot be said that the relevant issue is merely the conflict of interest of an accused person in deciding whether to advance a civil cause of action at the expense of the right to silence in a criminal prosecution or that the law will not act to relieve that conflict unless some prejudice apart from intrusion into the right to silence itself can be demonstrated."
7. Counsel also drew attention to the decision of the Full Court of the Federal Court of Australia in Helicopter Resources Pty Ltd v Commonwealth of Australia [2019] FCAFC 25; (2019) 365 ALR 233, although that decision appears to me to be distinguishable where the employee who would be required to give evidence in a coronial inquest had the capacity to make admissions which would potentially bind the company which was the subject of associated criminal proceedings.
8. Turning now to Counsel's submissions, Mr Emmett submitted that the Court would be guided, by way of analogy, by the question whether Australian proceedings would be stayed, by reason of the involvement of a witness who was facing a criminal trial. Mr Emmett rightly recognised that that position involved overlapping, but different, considerations from the position where a party to the proceedings was then facing a criminal trial. Mr Lange questions the utility of the analogy with a stay of proceedings, where CSC does not seek to defer the Delaware proceedings so that Mr Waldron can give evidence in them after his criminal trial.
9. Mr Lange submits, and I accept, that the matters to be canvassed in Mr Waldron's examination plainly overlap with the criminal proceedings brought against Mr Waldron in New South Wales, so far as the letter of request itself identified the purpose of the relevant evidence as being to prove that relevant contracts were "fraudulently procured". Mr Lange also pointed out that specified areas of inquiry, including one specifically directed to the criminal proceedings brought against Mr Waldron, were closely connected with the current prosecution of Mr Waldron. Mr Lange submits that the order sought should not be made, where Mr Waldron will exercise his privilege against self-incrimination in respect of the criminal proceedings against him. Mr Lange also submits that there would be no utility in ordering the examination sought by CSC, where Mr Waldron would refuse to answer any questions of substance on the basis of the privilege against self-incrimination.
10. Mr Lange also submits that, although Mr Waldron could be given a certificate under s 128 of the Evidence Act 1995 (NSW) in respect of answers given at an examination, that examination would give rise to a fundamental alteration to the nature of his criminal trial, in the sense considered in X7 above. Mr Lange submits (T57) that the Court should be guided by the case law commencing with that case, because CSC seeks to conduct a compulsory interrogation of Mr Waldron as to conduct which is the subject of the current criminal proceedings against him.
11. Mr Lange also submits that the "companion" principle recognised in X7 above is applicable here, because Mr Waldron's answers to questions in an examination, even if it was not adduced in the Delaware proceedings before his trial, would nonetheless require him to disclose his defence where there is a significant overlap between the examination sought by CSC and the criminal proceedings against him. Mr Lange accepted that the companion principle would not be engaged if Mr Waldron was permitted to invoke the privilege against self-incrimination at an examination and was not directed to answer questions under a certificate under s 128 of the Evidence Act. Obviously, that result would be of little advantage to CSC which, as Mr Lange points out, would only benefit from an examination of Mr Waldron if he is required to answer such questions under a certificate under s 128 of the Evidence Act. Mr Lange submits that that involves the alteration of the fundamental nature of the criminal process referred to in X7 above.
12. Mr Emmett fairly accepted (T49) that the Court would not likely stay proceedings between CSC and Mr Pulier had they been conducted in Australia, merely because one witness, Mr Waldron, was facing criminal proceedings, but would more likely set aside a subpoena issued to Mr Waldron in those hypothetical Australian proceedings, or allow the trial to proceed without issuing a subpoena to him, if it were satisfied that the examination would alter the fundamental process for his trial in the manner noted in X7 and the other cases to which I have referred above. Mr Emmett also submitted that the Court would weigh the prejudice to the parties in the balance in determining whether to take that course.
13. Mr Emmett accepted (T49) that an alternative course would be to defer making the order sought by CSC in respect of Mr Waldron for a period, where the difficulties affecting his position might be resolved by the completion of his criminal trial in Australia prior to a hearing in the Delaware proceedings. However, Mr Emmett indicated that CSC did not ask the Court to take that course, if it was not prepared to issue a subpoena to Mr Waldron now, because it did not wish to put at risk the trial date allocated to the Delaware proceedings commencing April 2020. Mr Emmett accepted (T49-50) that, if the Court would otherwise have deferred the issue of a subpoena pending the completion of the criminal proceedings against Mr Waldron, then it should simply not issue that subpoena. Mr Emmett urged that the Court take the different course of issuing that subpoena now, and leave Mr Waldron to invoke the privilege against self-incrimination in respect of any evidence which he may give in an examination.
14. Mr Emmett also submits that Mr Waldron would be entitled to refuse to answer particular questions on the basis of the privilege against self-incrimination at an examination, but submits that is not a basis for the Court not to require his examination. Mr Emmett submits, for example, that Mr Waldron may not have reasonable grounds to decline to answer questions as to matters that are already in the public domain. I am not persuaded that there are likely to be questions of practical significance that fall within that category, since it is difficult to see what benefit CSC could obtain from answers that would not implicate Mr Waldron in the alleged conduct by disclosing his knowledge of it. Mr Emmett also submits that the examination of Mr Waldron and several other persons could or should proceed before a Judge of the Court, and that Mr Waldron can assert the privilege against self-incrimination at that point.
15. Mr Emmett accepted, in oral submissions (T54) that there was a potential difficulty with the application of s 128 of the Evidence Act in an examination of Mr Waldron, if evidence was given in this Court under a certificate protecting Mr Waldron against self-incrimination but was then tendered in the Delaware proceedings without such a limitation and without any corresponding protection (so far as the evidence indicates) under Delaware law. Mr Emmett submitted that that question could also be deferred to be dealt with in the course of Mr Waldron's examination, or addressed by deferring the release of evidence from Mr Waldron's examination until his criminal trial had concluded.
16. Mr Emmett fairly accepted (T55) that the three categories of evidence likely to be elicited (or not) at an examination of Mr Waldron prior to his criminal trial were therefore public information, as to which no privilege against self-incrimination may be available but which, I interpolate, may be of limited scope and little practical benefit to CSC; evidence given under a certificate under s 128 of the Evidence Act, which Mr Emmett accepts may not prevent the evidence being released to the Delaware Court of Chancery, given the uncertainty as to the practical effect of that section in the Delaware proceedings; and evidence that is not given because Mr Waldron invokes the privilege against self-incrimination and is not required to answer a question under a certificate under s 128 of the Evidence Act.
17. It seems to me that there is a substantial likelihood that an examination of Mr Waldron prior to his trial would alter the fundamental nature of the criminal process in the manner noted in X7 above, given the extent of the likely overlap between the topics of the proposed examination and his trial. It also seems to me that there is little utility in such an examination, where CSC accepts that there is uncertainty as to whether its product (other than publicly available information) could be released for use in the Delaware proceedings until the criminal proceedings against Mr Waldron in Australia were complete. That difficulty could have been resolved by deferring the issue of a subpoena to Mr Waldron until after those criminal proceedings were complete, but CSC does not wish a subpoena to be issued to Mr Waldron if the Court would take that course. For these reasons, I am not satisfied that the Court should exercise its discretion to allow an examination of Mr Waldron to proceed prior to his criminal trial.
18. Mr Lange also submitted that an examination of Mr Waldron, when criminal proceedings against him are pending in New South Wales, would amount to a contempt of Court. He referred to authority dealing with the somewhat different position of a commission of inquiry conducted while criminal proceedings were pending: Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 54. Mr Emmett responds that there is no authority that it is a contempt of Court, in proceedings between two parties, to issue a subpoena to a third party which faces criminal proceedings. It seems to me that Mr Lange's submission in this respect added little to the proposition that an examination of Mr Waldron would alter the nature of his criminal trial. I need not address this submission further where that examination should not proceed for the other reasons noted above.

Production of documents by Mr Waldron

1. CSC also seeks the production of documents by Mr Waldron and Mr Waldron also resists that application. By letter dated 14 June 2019, the solicitors for CSC indicated that CSC now had in its possession the documents listed at paragraphs 6(d)-6(g), 17 and 23-25 of Exhibit 3 to the letter of request and no longer presses for production of those documents. CSC also indicated that it had obtained copies of other documents from secondary sources but nonetheless pressed for their production by Mr Waldron and did not have possession of some other documents.
2. Mr Waldron submits that the privilege against self-incrimination extends to his production of documents upon subpoena, and that at least the documents specified in paragraphs 1-5 and 7-26 of Exhibit 3 to the letter of request are sought in order to link Mr Waldron to the relevant documents. I am not persuaded by that submission, where CSC's position is that it does not have several of those documents and the benefit that it would obtain in proceedings against Mr Pulier or TechAdvisors LLC by linking Mr Waldron with the relevant documents is obscure. Mr Lange also submitted that the production of those documents, or their identification and the assertion of a claim to the privilege against self-incrimination in respect of them by Mr Waldron, would have the potential to alter the nature of his criminal trial, again relying on X7 above. Mr Emmett responds that the privilege against self-incrimination would provide a basis for Mr Waldron to refuse to produce the particular documents, rather than a basis for the Court declining to require the production of the relevant documents.
3. It seems to me that, by contrast with the position in respect of an oral examination, the production of particular documents by Mr Waldron would not have the potential to change the nature of his criminal trial in the manner identified by the High Court in X7 and the subsequent cases to which I have referred above, where Mr Waldron can assert the privilege against self-incrimination to decline to produce the particular documents sought in a proper case. A subpoena should therefore be issued for the documents in paragraphs 1-6 (other than paragraphs 6(d)-6(g); which are no longer sought), 7-16, 18-22 and 26 of Exhibit 3 to the letter of request, reflecting the exclusion of those paragraphs that are no longer pressed by CSC.
4. Mr Lange also submits that paragraphs 27-30 of Exhibit 3 to the letter of request do not comply with the requirements of s 33(6) of the Evidence on Commission Act, to which I referred above. In Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 ("Westinghouse") at 635, Lord Diplock observed that: "The requirements of [the corresponding English provision] … are not in my view satisfied by the specification of classes of documents. What is called for is the specification of "particular documents" which I would construe as meaning individual documents separately described."
5. In Re Asbestos Insurance Coverage Cases [1985] 1 All ER 716, Lord Fraser, in a speech with which the other Lords agreed, observed that the House of Lords in Westinghouse had been emphatic that the expression "particular documents specified in the order" should be given a strict construction and (at 721) that: "I do not think that by the words 'separately described' Lord Diplock intended to rule out a compendious description of several documents provided that the exact document in each case is clearly indicated. If I may borrow (and slightly amplify) the apt illustration given by Slade LJ in the present case, an order for production of the respondents' 'monthly bank statements for the year 1984 relating to his current account' with a named bank would satisfy the requirements of the paragraph, provided that the evidence showed that regular monthly statements had been sent to the respondent during the year and were likely to be still in his possession. But a general request for 'all the respondent's bank statements in 1984' would in my view refer to a class of documents and would not be admissible. The second test of particular documents is that they must be actual documents, about which there is evidence which has satisfied the judge that they exist, or at least that they did exist, and that they are likely to be in the respondents' possession. Actual documents are to be contrasted with conjectural documents, which may or may not exist."
6. That approach in Westinghouse and Re Asbestos Insurance Coverage Cases above was followed by Mathews AJ in Re Application of Monier Inc [2009] NSWSC 986; (2009) 76 NSWLR 158 ("Monier"), where her Honour observed (at [27]-[28]) that: "… Spigelman CJ, in [British American Tobacco above], emphasised that the British case law on this subject should generally be followed in Australia, given that it relates to an International treaty which should be interpreted, where possible, in an internationally uniform way. In any event the English authorities do little more, in my view, than reproduce the clear words of the section. Section 33(6)(b) requires, relevantly, that any documents to be produced under that section must be "particular documents specified in the order". It is difficult to construe this provision as meaning anything other than "individual documents separately described" (per Lord Diplock in Westinghouse). … the construction urged by Mr McHugh on behalf of Monier, namely that it is sufficient if the subpoena specifies an objective criterion by which the documents can be identified, does not in my view accord with the clear terms of the section, namely that the particular documents are to be specified in the orders…"
7. Mr Lange submits that paragraphs 27-30 of Exhibit 3 to the letter of request do not satisfy the requirement identified in Monier that particular documents be specified in the order, by the specification of individual documents. Mr Emmett responds that those paragraphs seek material to prove or disprove facts in issue, in the nature of evidence, rather than material which may lead to the discovery of evidence. However, he also accepts that those paragraphs describe documents collectively, and he fairly accepts that there is a real question whether those paragraphs meet the requirements of the Act. He submits that the fact that some requests were made in terms of categories of documents, rather than specific documents, did not automatically transform the relevant categories from request for evidence into requests for discovery, and that the Court should hold that earlier authorities no longer assist in the application of s 33(6) of the Act, where there has been a substantial change in the frequency, volume and flexibility of communications since Westinghouse was decided. Mr Lange responds that Monier was decided some 10 years ago, when technological advances had already occurred.
8. Mr Emmett also fairly accepted that decisions in the United Kingdom had required particularity in the identification of documents to be produced under a letter of request and that I was bound by the observations in British American Tobacco above that recognised the significance of United Kingdom authorities in relation to the Evidence on Commission Act. Mr Emmett also fairly accepted, in oral submissions, that I would legitimately take the view that I should follow the decision of another Judge of this Court at first instance, at least unless I considered that it were plainly wrong, and that that constituted a significant hurdle that CSC would have to overcome in respect of production of documents in paragraphs 27-30 of the categories for documents in the letter of request. It seems to me that, as a judge sitting at first instance, I should follow Westinghouse, consistent with the observations as to the status of United Kingdom law in this area in British American Tobacco above, and I should also follow Monier where it follows Westinghouse and I do not consider that it is plainly wrong.
9. It also seems to me that there are wider difficulties with paragraphs 27-30 of Exhibit 3 to the letter of request, which would likely have the result those paragraphs would be treated as oppressive and not permitted. Paragraph 27 seeks all correspondence, not limited by subject matter, from personal email accounts of Mr Waldron to personal email accounts "belonging to" specified persons, including specified accounts. That request plainly does not specify particular documents, since it would require Mr Waldron to reach a determination as to what are the email accounts belonging to particular persons, beyond those identified. Paragraph 28 has the same difficulty, so far as it requires production of all documents not limited to a subject matter, being emails from Mr Waldron's accounts to email accounts for a particular person, including a specified account. Paragraphs 29-30 require production of documents produced by Mr Waldron to certain government departments or agencies in the United States and Australia, with a specified connection with a specified matter. That category also does not specify particular documents, where it requires Mr Waldron to identify which documents he had produced to the relevant agencies, and then to determine whether they had the specified "connection" with the specified matter. Paragraphs 27-30 of the categories of production in the letter of request should not be permitted for these reasons.
10. Mr Lange alternatively submits that paragraphs 27-30 of the categories for production in the letter of request amount to a "fishing expedition" which is "designed to elicit information which might lead to the obtaining of evidence rather than to establish allegations of fact": Indochina Medical Co Pty Ltd v Nicolai [2013] NSWCA 436 at [81]. Mr Lange submits, with reference to authority, and I accept, that the Court will not permit a "fishing expedition", in the relevant sense, in response to a letter of request. It is not necessary to determine whether these paragraphs of the letter of request would also not be permitted on that basis.
11. Mr Emmett also relies on the observation of Spigelman CJ in British American Tobacco above at [88] that the Court is not entitled to reject a request unless it is not able to mould an order which the Court believes to be an "appropriate" order to give effect to the request. Mr Lange responds, and I accept, that the Court may delete objectionable parts of a letter of request, but cannot substitute a different request: Rio Tinto Plc v Vale SA [2015] EWHC 1865 at [12]. It seems to me that the Court is not able to mould such an order in respect of paragraphs 27-30 of Exhibit 3 to the letter of request, which are structurally inconsistent with a request for production of particular documents specified in the order. Mr Emmett also submitted that, if the Court was persuaded that any paragraphs of the proposed orders for production were not permitted by the Evidence on Commission Act, it should take the approach adopted by Hall J in Fairfax Financial Holdings Ltd [2011] NSWSC 223 of allowing the plaintiff to put forward an alternative order for production with more refined categories. I do not consider that I should provide a further opportunity to CSC to do so, as it had that opportunity after the hearing and pressed the categories in their present form by its solicitor's letter dated 14 June 2019 above.

Orders

1. I direct the parties to bring in agreed orders to give effect to this judgment, including as to costs, within 7 days, or in such shorter period as they may be able to achieve.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2019