ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- FLETCHER [2023] WASC 346 (11 September 2023)

1. Part VI(A) of the Request sets out the documents the respondent is required to produce. It provides:[49]
   1. Documents to be produced:

Despite being a former professor at UWA and an inventor of the UWA patents, neither Sarepta nor UWA has produced any laboratory notebooks, emails, memos, or notes from Dr Fletcher showing her role in exon 53-skipping research. After Drs Fletcher and Wilton resigned from their UWA positions, UWA allowed them to retain data, notebooks, and other information. Indeed Dr Wilton produced 1,742 documents totalling 26,526 pages of documents related to his exon 53 research. Therefore, the Court requests that you cause Dr Fletcher to produce:

• Any non-privileged documents relating to any work she conducted relating to developing and/or testing molecules intended to induce skipping of exon 53 of the dystrophin gene;
• Any non-privileged communications related to the design or testing of antisense oligonucleotide molecules intended to induce skipping of exon 53 of the dystrophin gene;
• Any non-privileged documents related to the drafting, filing, and prosecution of the application or applications that issued as the UWA Patents or any other U.S. applications that claim priority to such application or applications;
• A copy of any agreements governing her current or past relationship with UWA and/or Sarepta, including any employment agreements and consulting agreements.

1. No objection is raised to making orders to produce the fourth category of documents on the basis it constitutes a compendious description of several documents in which the exact document in each case is clearly indicated, as described by Lord Fraser in Re Asbestos Insurance Coverage Cases.[50]

1. The applicant submits the court should:[51]

(a) exercise its discretion to give effect to the Request as expeditiously as possible and in light of the overarching principles of comity and reciprocity and benevolence under the Convention (Rio Tinto Zinc Corporation v Westinghouse Electric Corporation at 653);

(b) independently assess the four itemised categories of documents of the Request understood to be in the possession, custody or power of Professor Fletcher not in isolation but in light of the recitals in the Request (Rio Tinto Zinc Corporation v Westinghouse Electric Corporation at 568);

(c) treat the Request with sympathy and approach the Request in the spirit that it should receive effect to the fullest extent possible under law - to that end, the Request ought be considered in totality with the recitals providing a proper aide to its construction (Pickles v Gratzon [2002] NSWSC 688; 55 NSWLR 533 [16] and Monier Inc [22]);

(d) consider whether the four itemised categories of documents ... are specified with such distinctiveness as would be sufficient for a subpoena duces tecum issued in this jurisdiction - to that end, the description of the documents should be sufficiently specific to enable the person to put [their] hand on the documents or the file without [themselves] having to make a random search (Rio Tinto Zinc Corporation v Westinghouse Electric Corporation at 562);

(e) be persuaded there is no need to introduce any separate principle of 'oppression' into the determination of the application under s 116 and s 117 of the Evidence Act because this court can reject the request (in whole or in part) if the court is not able to mould orders the court considers appropriate to give effect to the request (BAT v Eubanks [89]); and

(f) consider that a benevolent reading of the four itemised categories of documents in light of the recitals in the Request makes it plain the documents sought to be produced are documents: -

(i) likely to be in the possession, custody and power of the respondent;

(ii) the respondent was granted permission by the University of Western Australia to retain following her resignation - such that; and

(iii) which relate directly to the Respondent's research into exon 53-skipping research as set out in the recitals to the Request;

(g) conclude, benevolently construed, the Request recitals provide sufficient scaffolding to confine the first three bullet points at page eight of the Request to very specific listed types of documents (data, notebooks and other information) (document type limitation) in existence at the time the respondent was employed at the University of Western Australia (temporal limitation) conducting research into exon 53-skipping research (document subject matter limitation). Read benevolently and in light of the entirety of the Request (more particularly the chapeau appearing atop page eight of the Request), it cannot fairly be construed that the first three bullet points at page eight infringe the reservation embodied in s 117(6)(b) of the Evidence Act.

1. The respondent relies on the authorities cited above and specifically Monier Inc as governing the exercise of the discretion in making orders for the production of documents.
2. The respondent submits that even with the incorporation of the recitals the connectors 'relating to' and 'related to' used in the first three bullet points:

(a) are wide, vague and indefinite;[52]

(b) were fatal in Monier Inc;[53] and

(c) are more suited to describing a class or category of documents to be discovered by a party to litigation.

1. The incorporation of the third bullet point would require Professor Fletcher, who is not a party to the US Proceedings, to somehow identify any other US patent applications that claim priority to the applications that issued as the UWA Patents.

1. Section 117(6)(b) of the Evidence Act is couched in mandatory terms. An order, in this case for the production of documents, shall not require a person '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'.[54]
2. The issue is whether the documents required to be produced by the respondent pursuant to the three contested bullet points in Part VI(A) of the Request go beyond what is permitted by s 117(6)(b).
3. In Pickles v Gratzon at [16], O'Keefe J held:[55]

The Letter of Request must be read as a whole. One of the purposes of the recitals is to help to define or fix the framework within which the request is made. When construing the form of the request for assistance, it is appropriate to do so in the light, and against the background of the recitals. They are a valuable aid to the construction of the Letter of Request and assist in the definition of the ambit and content of the request.

1. Similarly, in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation in the Court of Appeal Lord Roskill held '[o]ne should ascertain what is the nature of the letters rogatory by looking at the letters rogatory themselves.'[56]
2. The applicant submits that, read together with the recitals, the description provides sufficient criteria against which the documents can be identified: they relate to her period of employment at UWA; they identify the type of documents sought (data, notebooks and other information); and they specify the subject matter, namely research into exon 53-skipping.
3. The test according to Lord Fraser in Re Asbestos Insurance Coverage Cases has two limbs: the first is whether the categories constitute a 'compendious description of several documents [whereby] the exact document in each case is clearly indicated'; and, the second is whether they are actual documents about which there is evidence which has satisfied the judge that they exist or at least they did exist and are likely to be in the respondent's possession. Actual documents are to be contrasted with merely conjectural documents which may or may not exist.[57]
4. Based on the recitals I am satisfied that the second limb of Lord Fraser's test has been satisfied, namely there is evidence that could satisfy the requesting judge that the documents exist or did exist and are likely to be in the respondent's possession. UWA is a counterclaimant in the action and is represented in proceedings in which it is alleged the UWA patents are invalid. The UWA patents name the respondent as one of the inventors. At the time the applications leading to the UWA patents were filed, the respondent with Dr Wilton co‑lead a research group at UWA that investigated antisense oligonucleotide treatment for DMD. The respondent is stated to be listed as the inventor of an International Application which discloses antisense oligonucleotides for exon-skipping to treat DMD including several antisense oligonucleotide that fall within the claimed genus for the UWA patents.[58]
5. It is stated that upon the respondent having resigned from her position at UWA she was allowed to retain data, notebooks and other information. Dr Wilton has produced voluminous records. I am satisfied documents pertaining to the research are likely to be in the respondent's possession.
6. The first limb of the test in Re Asbestos Insurance Coverage Cases is more problematic. In Monier Inc, Matthews AJ rejected the proposition that provided if the subpoena specified an objective criterion by reference to which the documents can be identified, namely if the subpoena specified that the documents 'record' or 'refer to' particular matters, that is sufficient for a beneficial purposive construction of the subpoena.[59]
7. Her Honour held that was because the English authorities do little more than reproduce the clear words of the section, namely that the documents to be produced under the section must be 'particular documents specified in the order.'[60] That has been construed as meaning 'individual documents separately described'[61] or 'a compendious description of several documents provided that that exact document in each case is clearly indicated.'[62]
8. In Rio Tinto Zinc Corporation v Westinghouse Electic Corporation, Lord Denning MR held:[63]

I think the words "relating thereto" cast the net too widely ... The point is that the documents should be specified with such distinctiveness as would be sufficient for a subpoena duces tecum. The description should be sufficiently specific to enable the person to put his hand on the documents or the file without himself having to make a random search-in short, to know specifically what to look for.

1. In this instance the objective criterion to which the documents in the first bullet point relates is the work Professor Fletcher has conducted relating to developing and/or testing molecules intended to induce skipping of exon 53 of the dystrophin gene.
2. In the second bullet point the objective criterion is communications related to the design or testing of antisense oligonucleotide molecules intended to induce skipping of exon 53 of the dystrophin gene.
3. However, it is clear from the recitals that the parties to the US Proceedings are unaware of what documents these are. Instead, there is a reasonable assumption based on the recitals that the respondent must have documents given her co-inventor produced 26,526 pages of documents and the respondent was permitted to retain notebooks, emails, memos or notes on her resignation from UWA.[64] However, the proposed order is not so limited and simply requires the production of 'documents' and 'communications'.
4. As currently drafted it is difficult to see that the request for documents in the first two bullet points seeks anything more specific than pre-trial discovery from a non-party. In light of the recitals a benevolent construction might mean that the request is confined to those documents created or obtained while employed at UWA, but any subpoena issued would simply require the production of those documents referred to in the bullet points which would have no such restriction.
5. I consider it is not possible by reference to the categories described in the first two bullet points to identify particular documents. Any subpoena issuing pursuant to the orders would require the respondent to conduct a review of all documents and communications to determine which documents might satisfy the objective criterion in each case, in the absence of any time frame in which these documents might have been created, obtained or kept. The authorities do not permit this type of review which is more akin to discovery.
6. For these reasons, I decline to make orders for production in terms of the first two bullet points.
7. The third bullet point requires the production of any documents related to the drafting, filing, and prosecution of the application or applications that issued as the UWA Patents or any other US applications that claim priority to such application or applications.
8. There is no evidence that the respondent was involved in the drafting, filing and prosecution of the application for the patent or any other applications including other US applications that claim priority to applications issued by UWA. There is also an assumption the respondent knows what other applications there may be and whether they have priority. The fact any other applications are not named suggests that it is not clear whether there are any such applications. In my view, the third bullet point fails both limbs of the test set out in Re Asbestos Insurance Coverage Cases. It neither specifies particular documents and nor is it clear that such documents are likely to exist. Therefore, the prohibition in s 117(6)(b) prevents an order for the production of documents described in the third bullet point.

1. Despite my initial view when this matter was first listed being that any amendment to the Request was for the requesting court, I have now had the opportunity to further consider the issue.
2. Importantly, the court is not concerned with assisting the parties to the action. The court is only concerned with assisting the requesting court. It is that court which has enlisted our assistance so far as this court properly can. The limitations upon that power are found in the statutes designed to give effect to a convention which many different countries with many different systems of law are parties.[65] To this end, Burnton J in Gredd v Arpad Busson, as cited in BAT v Eubanks, held:[66]

(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 Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 [1978] AC 547 at 644 - 645 and in turn by Sir Richard Scott VC in First American Corporation v Sheikh Zayed Al-Nahyan [1998] EWCA Civ 817; [1999] 1 WLR 1154; [1998] 4 All ER 439 at 1169.

1. In Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, Lord Fraser held:[67]

... in judging the nature of the letters rogatory as a whole the court must in my opinion look at them in the unamended form in which they were received by from the American court. I do not say that, if they were found to include a few relatively minor items which could not qualify under ... section 2(4) of the Act of 1975, the whole request would have to be refused. The court has to look at the substance of the matter: see Radio Corporation of America v Rauland Corporation [1956] 1 QB 618, 641.

1. Lord Fraser found that orders for production even as amended by the Court of Appeal ought not to have issued. On this issue Lord Fraser with Viscount Dilhorne were in the minority,[68] with the majority of the House of Lords finding the Court of Appeal was correct to give effect to the letters rogatory in respect of the production of documents subject to amendments to confine their operation to areas allowed by English law.[69]
2. The point of difference was not that letters of request could never be amended, but whether the amendments made could be considered to be of a minor character.
3. In BAT v Eubanks, Spiegelman CJ, in dealing with an objection to the breadth and scope of examination orders, held:[70]

In my opinion, 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" one for the purpose of giving effect to the request.

If the request is oppressive, in the sense discussed in the case law on subpoenas, then, unless it is not possible to do so, the Court would mould an appropriate order so as to remove the element of oppression. This may, for example, involve limited in the scope of permissible questioning to avoid topics stated in an uncertain manner.

1. Spiegelman CJ relied on the power in s 33(1) of the NSW Act to order 'such provisions for obtaining evidence ... as may appear to the Court to be appropriate'[72] and s 33(2) which enables the Court to require a person 'to take such steps as the court may consider appropriate.'[73]
2. In respect of the observations by Spiegelman CJ, Black J in Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777 considered that this means the court may delete objectionable parts of the letter of request but it cannot substitute a different request.[74] In that case, Black J declined to reframe the proposed orders for production of documents. That was in the context of a request for documents not limited by subject matter.[75]
3. The Second Femia Affidavit attaches a letter from the solicitors for the requesting party, suggesting that the proposed Production Orders could be amended as follows:[76]
   • The non-privileged documents Professor Fletcher was permitted to copy, retain or otherwise take from the University of Western Australia following her resignation in or about March 2013, that record data and other information concerning her work relating to developing and testing molecules intended to induce skipping of exon 53 of the dystrophin gene.
   • The non-privileged communications Professor Fletcher was permitted to copy, retain or otherwise take from the University of Western Australia following her resignation in or about March 2013, that relate to the design or testing of oligonucleotide molecules intended to induce skipping of exon 53 of the dystrophin gene.
   • The non-privileged documents Professor Fletcher was permitted to copy, retain or otherwise take from the University of Western Australia following her resignation in or about March 2013, that relate to the drafting, filing and prosecution of the application or applications that issued as the UWA Patents or any other US applications that claim priority to such application or applications.
4. The two issues that arise are whether the amendments bring the request within the scope of s 117(6)(b) of the Evidence Act and if the amendments are of a minor character that permit reframing by this court.
5. The proposed amended orders are confined to those documents Professor Fletcher was permitted to copy, retain or otherwise take from UWA following her resignation in March 2013 in relation to the matters described. That presumably would confine documents to those produced, obtained or created while at UWA as part of her employment. It would limit the documents to those in existence prior to March 2013.
6. Although not individually described, those are documents that Professor Fletcher copied, retained or took that record data and other information in relation to her specific work relating to developing and testing molecules, or that relate to the design or testing of oligonucleotide molecules intended to induce skipping of exon 53 of the dystrophin gene.
7. It is clear from the recitals that Professor Fletcher was involved in this work.
8. The first two bullet points in the Request, amended as proposed, would therefore comprise a compendious description of documents which are identifiable, albeit identifiable only by Professor Fletcher. I am of the view the orders for the first two categories as amended can be made pursuant to s 117(6)(b) of the Evidence Act.
9. In relation to the third bullet point, other than being listed as a co-inventor, the concern remains that it is not clear that Professor Fletcher drafted or filed or prosecuted this patent application or any other application. There is nothing to suggest she has any knowledge of any other applications that have priority to such application or applications. There is nothing in recitals that lead me to the view that Professor Fletcher was involved or that there are any other applications. No submission has been made indicating that her status as a co-inventor necessarily meant that she would have been involved in the drafting or filing or prosecution of this patent application.
10. In accordance with the observations of Black J in Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777 it is open to this court to delete objectionable parts of the letter of request. I am not prepared to make the order sought by the third bullet point even as amended. It is not evident that such documents exist, let alone are identifiable.
11. The second issue is whether amendments are of such a character that can be made by this court rather than returning the request to the US court for reframing. Save for the category of documents described in the third bullet point, in my view the amendments proposed in the letter attached to the Second Femia Affidavit simply incorporate the criteria set out in the recitals and do not substantially depart from the terms of the Request but rather limit it to a form that can be made pursuant to s 117 of the Evidence Act.
12. In Re Fairfax Financial Holdings Ltd [2011] NSWSC 223, Hall J allowed the plaintiff to put forward an alternative order for production with more refined categories.[77] It would be cumbersome and time consuming to require the requesting court to amend the Request to refine it to the terms sought by the requesting party. There is unlikely to be any prejudice to the parties to the US Proceedings especially where the requesting court was prepared to grant the Request in broader terms.
13. For these reasons, I will make orders in terms of the first two bullet points as amended and delete from the orders the documents described in the third bullet point.
14. There is no objection raised in relation to orders being made in the form of the fourth bullet point and I am satisfied it can be made in accordance with s 117(6) of the Evidence Act.

1. Subject to hearing from the parties I propose to make the following orders:

1. In accordance with Sections 116 and 117 of the Evidence Act 1906 (WA) and Order 39 Rule 3 of the Rules of the Supreme Court 1971 (WA) the Court grant approval for examination of the Respondent to be conducted by legal counsel for the parties in case number 21-1015-GBW in the United States District Court of Delaware whereby:

(a) The examination takes place at the offices of Minter Ellison, Level 4, Allendale Square, 77 St Georges Terrace, Perth WA 6000 by no later than 30 September 2023;
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> (b) Mr David Thompson of the Western Australian Bar be appointed examiner ('The Examiner') to administer the taking of an oath or affirmation and the conduct of the examination in accordance with the Court's orders and otherwise in accordance with Order 39 Rule 3 of the Rules of the Supreme Court 1971 (WA);
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> (c) The examiner be entitled to charge fees for the examination at the hourly rate of $475 per hour (exclusive of GST);
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> (d) The examination of the Respondent will be video recorded and reduced into writing by way of transcription and all books, letters, papers, and documents produced on such examination will be duly marked for identification and copies of the documents made;
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> (e) A copy of such video recordings, transcripts and exhibits (if any) from the deposition of the Respondent be signed and certified as correct and authenticated by the Examiner and sent to the Principal Registrar in accordance with Order 39 Rule 5(1) of the Rules of the Supreme Court 1971 (WA);
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> (f) On receiving the deposition of the Respondent, the Principal Registrar shall give a certificate in Form No. 31 sealed with the seal of the Court annexing thereto and identifying the request, the order for examination, and the depositions in accordance with Order 39 Rule 5(2) of the Rules of the Supreme Court 1971 (WA); and
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> (g) The Principal Registrar shall send the certificate referred to in paragraph 1(f) with the documents annexed thereto to the Solicitors for the Applicant, for transmission to the requesting Court and to Minter Ellison at Governor Macquarie Tower 1, Farrer Place, Sydney NSW 2000 and to DLA Piper at Level 21, 240 St Georges Terrace, Perth WA 6000 in accordance with Order 39 Rule 5(3) of the Rules of the Supreme Court 1971 (WA).

1. The Respondent make herself available to give evidence on a date and time nominated by the Examiner having regard to the reasonable convenience of the Respondent on at least 5 days' notice (and on a date or dates after 14 September 2023) at the location specified in paragraph l(a) of these orders, and submit to be examined to give the testimony required by the United States District Court of Delaware as listed on pages 9 and 10 of the Request for International Judicial Assistance dated 1 August 2023 and continuing thereafter at such time as the Examiner may direct from day to day until completed except that:

(a) The deposition shall not exceed seven hours on the record per day; and
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> (b) The examination by the Requestors shall not exceed a total of seven hours on the record.

1. Leave be granted to the Applicant to issue a subpoena to the Respondent to attend to give evidence before the Examiner in accordance with the terms of paragraph 2 above and substantially in the form contained in Form 21 (per Order 36B Rule 3(1)(a) of the Rules of the Supreme Court 1971 (WA)). 2. In accordance with ss 116 and 117 of the Evidence Act 1906 (WA) and Order 39 Rule 3 of the Rules of the Supreme Court 1971 (WA), the Court require the Respondent to produce to the Court the following documents: * The non-privileged documents Professor Fletcher was permitted to copy, retain or otherwise take from the University of Western Australia following her resignation in or about March 2013, that record data and other information concerning her work relating to developing and testing molecules intended to induce skipping of exon 53 of the dystrophin gene. * The non-privileged communications Professor Fletcher was permitted to copy, retain or otherwise take from the University of Western Australia following her resignation in or about March 2013, that relate to the design or testing of oligonucleotide molecules intended to induce skipping of exon 53 of the dystrophin gene. * A copy of any agreements governing her current or past relationship with UWA and / or Sarepta, including any employment agreements and consulting agreements. 3. Leave be granted to the Applicant to issue a subpoena to the Respondent to produce the documents referred to in Paragraph 4 above substantially in the form contained in Form 21A (per Order 36B Rule 3(1)(b) of the Rules of the Supreme Court 1971 (WA)), such subpoena to be returnable on [to be advised]. 4. In respect of any documents produced by the Respondent under the subpoena, and subject to any objection proceedings taken in respect of that subpoena, solicitors for Nippon Shinyaku Co. Ltd, NS Pharma Inc and Sarepta Therapeutics Inc be at liberty to access, inspect and take copies of the documents and to provide such copies to the parties in US District Court for the District of Delaware in case number 21-1015-GBW. 5. Leave be granted for the Respondent to be represented at the examination by legal practitioners of the Supreme Court of Western Australia and legal practitioners of the United States of America and the Respondent be permitted to take legal advice in order to prevent the disclosure of privileged information and to claim privileges under both the laws of the United States and those of Australia. 6. Leave be granted to Nippon Shinyaku Co., Ltd and NS Pharma Inc to be represented at the examination by an Australian legal practitioner entitled to engage in legal practice in Western Australia (pursuant to the Legal Profession Uniform Law Application Act 2022 (WA)) and legal practitioners of the United States of America to conduct the examination of the Respondent either in person or by video-link. 7. Leave be granted to Sarepta Therapeutics, Inc., to be represented at the examination by an Australian legal practitioner entitled to engage in legal practice in Western Australia (pursuant to the Legal Profession Uniform Law Application Act 2022 (WA)) and legal practitioners of the United States of America to conduct the examination of the Respondent either in person or by video-link. 8. Subject to further order of this Court, that documents subject of the Stipulated Protective Order made on 21 June 2022 in case number 21-1015-GBW in the United States District Court of Delaware may be disclosed during the depositions to the Examiner and the Respondent, and that the Respondent shall be bound by the terms of the Stipulated Protective Order. 9. Nippon Shinyaku and NS Pharma (Plaintiff and Counter-Defendants in the United States District Court of Delaware Proceedings Case No. C.A. No. 21-1015-GBW) bear the fees and costs incurred with respect to the travel or loss of time reasonably incurred by the Respondent in complying with these orders, and any other costs reimbursable under paragraph 2 of Article 14 or Article 26 of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad In Civil or Commercial Matters. 10. Nippon Shinyaku and NS Pharma to arrange for conduct money to be provided in the form of cheques issued to the Respondent, to the State Solicitor's Office, and the State Solicitor's Office to provide such cheques to the Respondent or her legal advisors, at the time the subpoenas referred to herein are served. 11. Subject to the Respondent executing and providing a copy of the Acknowledgment and Agreement to be Bound (Annexure A to the Stipulated Protective Order) to Nippon Shinyaku and NS Pharma, Nippon Shinyaku and NS Pharma will prepare a selection of documents, which may be shown to the Respondent during her examination, which will be provided electronically to the Respondent or her legal counsel at least five days prior to her examination. 12. A copy of the Court's Order, the Originating Motion, and the Affidavit and Annexures of Patricia Anna Femia affirmed on 9 August 2023 be served on the Respondent, Minter Ellison and DLA Piper as soon as practicable.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The parties to the US proceedings are referred to as the plaintiff and defendant. To avoid confusion the parties to this application will be referred to as the applicant and respondent.

[2] First Femia Affidavit [7], 'Annexure A' (11).

[3] First Femia Affidavit [7], 'Annexure A' (11).

[4] First Femia Affidavit 'Annexure A' (14 - 16).

[5] First Femia Affidavit 'Annexure A' (14).

[6] The related application in CIV 1796 of 2023 was originally filed on 24 July 2023 and at the request of the Attorney General was adjourned to 9 August 2023 in anticipation of the filing of this application, so that the applications could be dealt with together.

[8] Second Femia Affidavit [5], 'Annexure A'.

[10] The Convention Article 23; The Application of Nicholas Basil Cannar; Re Sharon Y Eubanks, being the person nominated by the United States District Court for the District of Columbia in proceedings United States of America v Phillip Morris Incorporated et al Civil Action No.99-CV-2496 (GK), for the purposes of applying for orders under section 33 of the Evidence on Commission Act 1995 [2003] NSWSC 802 [144].

[11] First Femia Affidavit 'Annexure A' (13).

Parliamentary Debates, Legislative Assembly, 24 October 1989, 3675 - 3676, (The Honourable David

[14] British American Tobacco Australia Services Limited v Sharon Y Eubanks for the United States of America; Nicholas Basil Cannar v Sharon Y Eubanks for the United States of America; British American Tobacco (Investments) Limited v Sharon Y Eubanks for the United States of America [2004] NSWCA 158; (2004) 60 NSWLR 483 (BAT v Eubanks) [15] - [20].

[15] BAT v Eubanks [39] and [45] in relation to s 33(6) of the Evidence on Commission Act 1995 (NSW) which is in identical terms to s 117(6) (except for the word 'shall' is replaced by 'must').

[24] International Finance Trust Co Ltd v New South Wales Crimes Commission (2009) 240 CLR 319; [2009] HCA 49 [39].

[25] International Finance Trust Co Ltd v New South Wales Crimes Commission [39].

[26] R v Camden London Borough Council; ex parte Martin [1997] 1 All ER 307, 312.

[27] Zucal v Harper (2005) 29 WAR 563; [2005] WASCA 76 [60] citing Thomas A Edison Ltd v Bullock [1912] HCA 72; (1912) 15 CLR 679, 681.

[28] Hamersley Iron Pty Ltd v Sanko Steamship Co Ltd (117).

[29] Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2017] NSW 810 [4], [48]; see also Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777Error!.

[32] Application of Securities and Exchange Commission of USA under Evidence on Commission Act 1995 (NSW) (No 2) [2020] NSWSC 1500 [126] citing BAT v Eubanks [14].

[33] First Femia Affidavit 'Annexure A' (13).

[34] See s 59F of the Evidence Act 1929 (SA).

[35] Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK), s 2(4)(b).

[36] See BAT v Eubanks [17] - [20]; Now in Evidence on Commission Act 1995 (NSW), s 33(6)(b).

[37] BAT v Eubanks [41] as applied in Application of Securities and Exchange Commission of USA under Evidence on Commission Act 1995 (NSW) (No 2) [127].

[38] With whom Handley and Bryson JJA agreed.

[39] BAT v Eubanks [40] - [42] referring to Gredd v Arpad Busson [27].

[44] Rio Tinto Zic Corporation v Westinghouse Electric Corporation (635).

[45] Re Asbestos Insurance Coverage Cases (337 - 338).

[47] Application by the Attorney General of NSW [2021] NSWSC 857 at [4], Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777 at [36] - [38] and Re Fairfax Financial Holdings Ltd [2011] NSWSC 223 at [38] - [39].

[48] Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777 [38].

[49] First Femia Affidavit 'Annexure A' (14).

[50] Re Asbestos Insurance Coverage Cases (337 - 8), as cited in Monier Inc [19], [20], [32].

[52] See, for example, the authorities discussed in Waugh Hotel Management Pty Ltd v Marrickville Council

[2009] NSWCA 390; (2009) 171 LGERA 112 [44] - [50].

[53] Monier Inc [5], [7], [29] and [32].

[54] Evidence Act s 117(6)(b).

[55] See also BAT v Eubanks [42] citing Burnton J in Gredd v Arpad Busson [27]; applied in Monier Inc [22].

[56] Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (568).

[57] Re Asbestos Insurance Coverage Cases (338).

[58] First Femia Affidavit 'Annexure A' (12).

[61] Rio Tinto Zinc Corporation v Westinghouse Electic Corporation (635).

[62] Re Asbestos Insurance Coverage Cases (337).

[63] Rio Tinto Zinc Corporation v Westinghouse Electic Corporation (562).

[64] First Femia Affidavit 'Annexure A' (8).

[65] Rio Tinto Zinc Corporation v Westinghouse Electric Corporation (568) (Roskil J).

[66] BAT v Eubanks [42] citing Burnton J in Gredd v Arpad Busson [27].

[67] Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, 644-655.

[68] Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, 624 Viscount Dilhorne.

[69] Rio Tinto Zinc Corporation v Westinghouse Electric Corporation, 611-612 Wilberforce LJ, 636 Diplock LJ and 654 Lord Keith of Kinkel; Viscount Dilhorne and Lord Fraser dissenting).

[72] See Evidence Act s 117(1).

[73] See Evidence Act s 117(2).

[74] Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777 [41] with reference to Rio Tinto Plc v Vale SA [2015] EWHC 1865.

[75] Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777 [41].

[76] Second Femia Affidavit 'Annexure A' (9 - 10).

[77] Re Fairfax Financial Holdings Ltd [2011] NSWSC 223 [37], [40].