Application of the Attorney-General (ACT) [2026] ACTSC 31 (13 February 2026)

Parties: Attorney-General (ACT) (Applicant)

Representation: Counsel T Kaplan (Applicant)

Solicitors ACT Government Solicitor (Applicant) File Number: SC 511 of 2025 MULLER AJ:

REVISED EX TEMPORE REMARKS

Introduction

1. This is an application in SC 511 of 2025, brought by the Attorney-General of the Australian Capital Territory seeking orders reliant upon r 6842 of Div 6.10.9 of the Court Procedures Rules 2006 (ACT), to give effect to a letter of request for information received from the Zhovtnevyi District Court of Dnipropetrovsk City, Ukraine (the Ukraine Court).

2. The request from the Ukraine Court to the Attorney-General is made using a model form under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature 15 November 1965, UNTS 658 (entered into force 10 February 1969) (Hague Service Convention) but is better characterised as a request pursuant to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature 18 March 1970, UNTS 847 (entered into force 7 October 1972) (Hague Evidence Convention).

3. The affidavit of Ty Kaplan affirmed on 19 December 2025 is read in support of the application. Annexed to Mr Kaplan's affidavit is a translated ruling of the Ukrainian court (extracted at Annexure A). I note the ruling is dated 15 June 2022, and the letter of request from the Ukraine Court is dated 22 March 2024.

4. The information that is requested concerns an individual named Mashchenko Ihor Heorhiiovych. I am satisfied that the request meets the requirements of Div 6.10.9.

5. The application as initially framed sought a range of orders including prospectively oral examination of witnesses, but having heard oral submissions from the applicant, I am satisfied that as a first step, it is appropriate to make orders for the issue of subpoenas for production to relevant Australian authorities with a view to accessing documentation that may well be responsive to the questions that have been asked.

Orders

6. The orders I will make, pursuant to r 6843, are as follows:

(1) Evidence is to be taken in the Australian Capital Territory by way of production of documents by the Department of Home Affairs and the Department of Foreign Affairs and Trade.

(2) The court issue a subpoena to produce documents addressed to the Proper Officer, Subpoena Team, Department of Home Affairs, 5 Chant Street, Belconnen ACT 2616, being any documents addressing the questions posed at (3) of p 1 of the ruling of the Zhovtnevyi District Court of Dnipropetrovsk City, Ukraine.

(3) The court issue a subpoena to produce documents addressed to the Proper Officer, Subpoena Team, Department of Foreign Affairs and Trade, 10 John McEwen Crescent, Barton ACT 2600, being any documents addressing the questions posed at (3) of p 1 of the ruling of the Zhovtnevyi District Court of Dnipropetrovsk City, Ukraine.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller.

Associate:

Date: ANNEXURE A: EXTRACT OF TRANSLATED RULING OF ZHOVTNEVYI DISTRICT COURT OF DNIPROPETROVSK CITY, UKRAINE

UKRAINE ZHOVTNEVYI DISTRICT COURT OF DNIPROPETROVSK CITY Case No. 201/11007/21 Procedure No. 2/201/858/2022

RULING

th June 15 , 2022 Dnipro City

Zhovtnevyi District Court of Dnipropetrovsk City in the composition of: Presiding Judge Fedorishcheva S.S., Court Session Secretary Maksymova O.V., Plaintiff Linetskyi H.B., Plaintiff’s representative Hurskyi V.S., Defendant Mashchenko I.H., having considered in an open court session in Zhovtnevyi District Court of Dnipropetrovsk City in Dnipro City a motion for discovery of evidence in a civil case at the suit of Linetskyi Hlib Borsovych against Mashchenko Ihor Heorhiiovych, third parties – Department of Housing of the Dnipro City Council, Municipal Enterprise Dnipropetrovsk Intercity Technical Inventory Bureau, on invalidating a certificate and a decree, -

HAS ESTABLISHED AS FOLLOWS:

The civil case brought by Linetskyi Hlib Borsovych against Mashchenko Ihor Heorhiiovych, third parties – Department of Housing of the Dnipro City Council, Municipal Enterprise Dnipropetrovsk Intercity Technical Inventory Bureau, on invalidating a certificate and a decree is currently handled by the Zhovtnevyi District Court of Dnipropetrovsk City. th On June 15 , 2022, the plaintiff’s representative filed a motion to obtain evidence crucial for a comprehensive review of the case, specifically: … 3. Request information from the Department of Home Affairs of Australia the following information: - Is Mashchenko Ihor Heorhiiovych a citizen of Australia? From what time? - Have the following documents been issued to Mashchenko Ihor Heorhiiovych: Passport of the citizen of Australia …; Australian Citizenship Certtificate … - Has Mashchenko Ihor Heorhiiovych crossed the state border of Australia in the period from 1990 to 2010? If yes, when exactly? The plaintiff and his representative supported the motion during the court hearing, requesting its satisfaction. The defendant objected against satisfaction of the motion. After reviewing the motion for discovery and case materials, it is concluded that the motion is substantiated and should be satisfied for the following reasons. … Regarding the request for evidence from the Australian Department of Home Affairs, the following should be noted. According to Article 498 of the Civil Procedure Code of Ukraine, if, during the consideration of the case, the court needs to serve documents, obtain evidence, or conduct certain procedural actions in the territory of another state, the Ukrainian court may apply with a court request to the corresponding foreign court or another competent authority of the foreign state in accordance with this Code or an international treaty ratified by the Verkhovna Rada of Ukraine. The Ukrainian court’s request is sent in accordance with the procedure established by this Code or the international treaty ratified by the Verkhovna Rada of Ukraine, and if there is no such international treaty, the request shall be sent to the Ministry of Justice of Ukraine, which sends the request to the Ministry of Foreign Affairs of Ukraine for transmission through diplomatic channels. The court’s right to apply with the relevant court request to a foreign court or other competent authority of a foreign state is also provided for in Item 1 Article 80 of the Law of Ukraine << On Private International Law>>. Under these circumstances, considering the necessity to obtain evidence from an authority located in Australia, the court deems it necessary to also apply with a court request to the corresponding competent authority of Australia. Based on the above, guided by Articles 76-84, 260, 353-354 of the Civil Procedure Code of Ukraine, the court –

HAS RULED: … 3. Request information from the Department of Home Affairs of Australia the following information: - Is Mashchenko Ihor Heorhiiovych a citizen of Australia? From what time? - Have the following documents been issued to Mashchenko Ihor Heorhiiovych: Passport of the citizen of Australia …; Australian Citizenship Certtificate … - Has Mashchenko Ihor Heorhiiovych crossed the state border of Australia in the period from 1990 to 2010? If yes, when exactly?