Attorney-General in and for the State of New South Wales [2011] NSWSC 773

Judgment 1By summons filed in June 2011, the Attorney-General sought orders under s 33 of the Evidence on Commission Act 1995 in respect of a request received from the 2 nd Court of Commerce of First Instance of Istanbul ('the 'Turkish Court'). The request concerned proceedings before the Turkish Court involving an Australian company, Yavuz Pty Ltd. The order sought was: "1. An order that within 14 days of service of a sealed copy of the order upon the Proper Officer of Export Finance and Insurance Corporation ('EFIC'), registered office being Level 5, Export House, 22 Pitt Street Sydney NSW 2000, EFIC produce to the Court a copy of: a. the contents of its file reference number 102605, and b. copies of all correspondence, contracts, records of payments made and received and records of claims made and received by EFIC as subrogee of a debt owed to Yavuz Pty Ltd (Australia) by Oktay Omurtak Deri Isletmeleri ve Ticaret AS. 2. An order that the plaintiff be given photocopy access to the documents produced in response to order 1. 3. An order granting leave to EFIC to provide a copy of the documents produced in response to order 1 to the 2 nd Court of Commerce of First Instance of Istanbul ('the Turkish Court')." 2Sections 32 and 33 of the Evidence on Commission Act provide: "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, (c) for the inspection, photographing, preservation, custody or detention of any property, (d) for the taking of samples of any property and the carrying out of any experiments on or with any property, (e) for the medical examination of any person, (f) without limiting paragraph (e), for the taking and testing of samples of blood from any person. (4) An order under this section is not to require any particular steps to be taken unless they are steps that can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates). (5) Subsection (4) does not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath if this is asked for by the requesting court. (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. (7) A person who, because of an order under this section, is required to attend at any place is entitled to similar conduct money and payment for expenses and loss of time on attendance as is a witness in proceedings before the Supreme Court." 3In accordance with Part 52 of the Uniform Civil Procedure Rules 2005, the application was heard ex parte. 4In evidence is an affidavit sworn by Ms Lucy Pinnock, a solicitor employed by the Crown Solicitor, who has carriage of the matter, to which was annexed various Turkish documents (and English translations of those documents), including a first letter of request received from the Turkish Court in May 2007; a second request made in February 2009; and rulings and decisions made in the proceedings by the Turkish Court, by the Turkey Court of Appeals 19 th Civil Chamber and by other Turkish Courts, between 2002 and 2010. 5Also in evidence was a further request made in April 2011, as well as minutes of a hearing in the Turkish Court which indicates that there is a continuing need for provision of the documents in question, for the proceedings on foot in that Court. 6The case advanced for the Attorney-General was that the material reveals that the Turkish proceedings relate to an Australian company, Yavuz Pty Ltd, which was trading internationally. Money paid into an account in its name, appears to have been paid out of a bank, to a third party, as the result of certain fraudulent documentation. The proceedings involve the Turkish Bank which disbursed the funds. An issue has arisen in the proceedings as to money paid by the Export Finance and Insurance Corporation ('EFIC') pursuant to a trade insurance company, relevant to an assessment of loss and whether there has been any fraud committed in respect of EFIC or the Bank. 7Mr Villa, appearing for the Attorney-General, properly drew attention to the possibility that EFIC may oppose disclosure of the documents in question, given material appearing in Court documents annexed to Ms Pinnock's affidavit, from which it appears that it has already had some involvement in the Turkish proceedings. 8It was explained that it was considered to be possible that EFIC might seek to rely on provisions of the Export Finance and Insurance Corporation Act 1991 (Cth). It was accepted that in that event, it ought to be given the opportunity to be heard, before the Court's orders took effect. Accordingly, orders were crafted, which would ensure that if EFIC wished to avail itself of that opportunity, it could do so. 9Having considered the material relied on and the submissions advanced for the Attorney-General, I am satisfied that the orders sought were appropriate to be made to give effect to the request, without ignoring the possibility that EFIC may wish to press an application in respect of the order. If the opportunity provided by the order is not exercised, the order will take effect.