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Catchwords: CIVIL LAW – ex parte application to examine witness at request of Spanish Court – whether witness should have a right to be heard – where rules do not contemplate the witness be joined – where scope of questions limited to three questions – application granted

Legislation Cited: Evidence on Commission Act 1995 (NSW), ss 32, 33
Uniform Civil Procedure Rules 2005 (NSW), rr 52.1, 52.1(2)

Cases Cited: Application of the Securities and Exchange Commission of the United States of America under the Evidence on Commission Act 1995 (No 2) [2020] NSWSC 1500
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) 60 NSWLR 483; [2004] NSWCA 158

Texts Cited: Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters

Category: Principal judgment

Parties: Attorney General of NSW (ex parte)

Representation: Counsel:
Z Bush
Solicitors:
Crown Solicitor’s Office

File Number(s): 2026/00097920

Publication restriction: N/A

JUDGMENT

1. By summons filed on 9 March 2026, the plaintiff, who is the Attorney General for the State of New South Wales, seeks an order under s 33 of the Evidence on Commission Act 1995 (NSW) (“the Act”) for the examination of Mr Simonian.

2. The application came before me in my capacity as Duty Judge. The summons was supported by an affidavit of Kristian Metzler filed on 9 March 2026. Annexed to the affidavit were a variety of documents including a Letter of Request from the First San Sebastian Commercial Court of the Kingdom of Spain (“the requesting court”) for certain evidence to be taken in the manner requested.

3. Ms Bush, who appeared on behalf of the Attorney General, provided helpful written submissions in support of the application.

4. In simple terms, Mr Simonian is the Director of Weston Aluminium Pty Ltd, and the requesting court seeks a transcript of his responses to three questions specified in the request for use in the Spanish proceedings relating to suggested or alleged “unfair competition and violation of trade secrets”.

Statutory provisions

5. Before the Court can make an order under s 33, the conditions contained in s 32 must be satisfied:

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.

6. The scope of the Court’s power to make the orders is contained in s 33:

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.

7. I had some concerns, given the nature of the allegations made in the proceedings, whether the witness should be afforded a right to be heard and, relatedly, whether the application should proceed ex parte. Ms Bush referred me to r 52.1 of the Uniform Civil Procedure Rules (2005) (NSW) which provides as follows:

52.1 Procedure (cf SCR Part 58, rule 1)

(1) Proceedings for an order under section 33 of the Evidence on Commission Act 1995 in relation to a matter pending before a requesting court may be commenced in the Supreme Court—

(a) by a person nominated for that purpose by the requesting court, or

(b) if no person is so nominated, by the Attorney General.

(2) In proceedings for such an order, no person is required to be joined as a defendant.

(3) If proceedings for such an order have been commenced in relation to a matter pending before a requesting court, any other application for such an order in relation to the same matter is to be made by notice of motion in the proceedings.

(4) Rules 52.2–52.5 have effect unless the Supreme Court otherwise orders.

8. In these circumstances, pursuant to r 52.1(2), no person is required to be joined as a defendant. I was satisfied that it was appropriate to proceed with the application ex parte, particularly given the confined scope of the proposed questions to be asked of Mr Simonian. To that end, the plaintiff did not object to me adding to the orders in such a way as to limit the scope of any examination made pursuant to these orders.

9. Mr Simonian will have the opportunity to object to those questions, should he wish to do so, when he attends upon the examination conducted by a Registrar of this Court, or even before that time once he has been served with the summons and subpoena.

10. I am satisfied that the statutory prerequisites contained in s 32 are met:

(a) The application is made in pursuance of a request issued or on behalf of a court or tribunal exercising jurisdiction in a place outside of New South Wales; and (b) 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.

11. The letter of request annexed to the supporting affidavit is dated 22 April 2025 and issued under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters for assistance in taking evidence from Mr Simonian. The email correspondence annexed to the affidavit between the Commonwealth Attorney General’s Department and a representative of the requesting court demonstrate that the proceedings are ongoing as of 12 January 2026 and that the evidence of Mr Simonian is required in order to set the trial date for the proceedings.

12. I am also satisfied that the proceedings in the requesting court are civil proceedings and not criminal proceedings. The documents attached to the request suggest that the plaintiff in the proceedings is a company and the defendant is a current or former director of that company. The three questions contained in the request appear to indicate with sufficient particularity the kind of evidence that is being sought and appear to be relevant to the nature of the proceedings.

Discretion

13. As the Attorney General submitted, the Court retains a discretion as to whether or not to make an order under s 33 of the Act: see 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) 60 NSWLR 483; [2004] NSWCA 158*.* The exercise of that discretion is to be informed by the principle that letters of request should be given effect to the fullest extent possible: see, for example, Application of the Securities and Exchange Commission of the United States of America under the Evidence on Commission Act 1995 (No 2) [2020] NSWSC 1500 at [130].

14. There are no discretionary reasons that militate against making the orders sought, subject to the variation of the order that the scope of the questions to be asked of Mr Simonian be limited to the three questions identified at page 8 of the letter of request.

Conclusion

15. For those reasons I made the following orders to be taken out forthwith:

16. An order, pursuant to s 33 of the Evidence on Commission Act 1995 (NSW), that Garbis Simonian (Mr Simonian) of [REDACTED], be examined, and asked the three questions identified at page 8 of the letter of request.

17. An order that a Registrar of this Court be appointed as examiner to conduct the examination of Mr Simonian.

18. An order that the plaintiff is to serve upon Mr Simonian copies of this summons, the supporting affidavit of Kristian Metzler sworn on 9 March 2026 (Metzler Affidavit), and any orders made by the Court in respect of this summons.

19. An order that leave be granted to the plaintiff to approach the Registrar to appoint a date for the examination of Mr Simonian.

20. An order that, after a Registrar appoints a date for the examination of Mr Simonian, the plaintiff is to serve upon Mr Simonian a subpoena to attend to give evidence in the form of Annexure D to the Metzler Affidavit.

21. Orders that, following the completion of the examination of Mr Simonian:

(a) a record of the examination be taken by the Court in accordance with rr 24.12 and 52.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR); (b) the transcript of the examination be prepared and certified in accordance with rr 24.14(1)-(3) and 52.2 of the UCPR; (c) the certified transcripts, any documents constituting a recording of the examination, and any exhibits retained by the examiner, be sent by the examiner to the Principal Registrar of this Court in accordance with r 52.4 of the UCPR; (d) a Registrar of this Court issue sealed certificates with annexures in respect of the examination and send those certificates and annexures to the plaintiff in accordance with r 52.5 of the UCPR.

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