British American Tobacco Australia Services Ltd v Eubanks

[2] The proceeding was started by an originating application filed 11 February 2026. The applicants applied for orders pursuant to ss 36 and 37 of the Evidence Act that:

(a) they have leave to issue subpoenas to give evidence to Mr Cunningham and Mr Cuzzubbo;

(b) on 5 and 6 March 2026, Mr Cuzzubbo and Mr Cunningham be separately examined, in person or by video link, by US Counsel in the US proceedings before a member of the Queensland Bar, Mr Ananian-Cooper, on various topics, in accordance with the special methods or procedures set out in s 13 of the letter of request.

[4] The originating application had not named Mr Cunningham or Mr Cuzzubbo as a respondent. It had been filed as an ex parte application without notice to them. They were served with the originating application only after they had each made requests to be informed of any such proceeding. At the hearing, I granted Mr Cunningham and Mr Cuzzubbo leave to appear. Leave was not opposed.

[5] The Court has a discretion to award costs to a non-party when the interests of justice require it.[1] The applicants submit that Mr Cuzzubbo and Mr Cunningham should bear their own costs of the proceedings. I did not find any of the reasons advanced in the applicants' submissions on costs dated 26 February 2026 to warrant such a costs outcome. Rather I am satisfied that the interests of justice require an order that the applicants pay Mr Cunningham's and Mr Cuzzubbo's costs of the originating application. My reasons are as follows:

(a) The intervention of each of Mr Cunningham and Mr Cuzzubbo was necessary to protect their substantive rights. They were each entitled as of right to the protections afforded by the Evidence Act. It has been recognised that the question whether to enforce a foreign letter of request is one "of substance affecting [the proposed examinee's] civil rights"[2].

(b) Each of Mr Cuzzubbo and Mr Cunningham, by their lawyers, placed before the Court relevant evidence, particularly of the transcripts of the 11 December 2025 and 18 December 2025 hearings in the US Court. The submissions which their lawyers advanced by reference to that evidence, and the authorities, provided significant assistance to the Court's resolution of the real issues in the proceeding.

(c) I am satisfied that each of Mr Cuzzubbo and Mr Cunningham sought leave to appear in this proceeding at the earliest opportunity.

(d) I am not satisfied that there is any reasonable basis to suggest that either Mr Cunningham or Mr Cuzzubbo ought to have appeared in the US Court. That contention appeared to be made by the applicants' costs submissions and seemed premised on the notion that it was incumbent on Mr Cuzzubbo and Mr Cunningham, as Australian residents whose rights might be affected by an order in a foreign court, to actively seek out notice of, and intervene in, the foreign court proceeding. I reject that premise.

(e) an order that the costs of Mr Cunningham and Mr Cuzzobbo be paid on the standard basis is consistent with the ordinary rule in this Court to the effect that costs follow the event[3].

(f) it is appropriate that Mr Cunningham and Mr Cuzzobbo be awarded their costs of the originating application and not just their costs from the time of the grant of leave. The applicants were made aware prior to the hearing that Mr Cunningham and Mr Cuzzobbo intended to appear and did not oppose the grant of leave. The 11 December 2025 and 18 December 2025 hearings in the US Court appear to have been conducted on the basis that the letter of request could be challenged in this Court.

1. The applicants shall pay the costs of Mr Cuzzubbo and the costs of Mr Cunningham of and incidental to the originating application filed 11 February 2026 to be agreed or, failing agreement, to be assessed on the standard basis.

[1] Re Jenkins (2022) 11 QR 456 at [9].

[2] British American Tobacco Australia Services Ltd v Eubanks [2004] NSWCA 158; (2004) 60 NSWLR 483 at [13].