In the Application of Her Majesty’s Attorney General in and for the State of New South Wales under s 32 of the Evidence on Commission Act 1995 (NSW); In the matter of a request from the District Court of the Canton of Zurich in Switzerland in case file no. BR180009 for assistance [2020] NSWSC 817
By summons filed on 16 June 2020 the Attorney General in and for the State of New South Wales applies under s 32 of the Evidence on Commission Act 1995 (NSW) (the EC Act) for the examination of Luzia Carolina Dänzer Fagan of Moss Vale as a result of a request received from the District Court of Zurich 1st Division in Switzerland for the examination of Ms Fagan.
The application is supported by the affidavit of Ms Emma McKibbin affirmed on 16 June 2020 which sets out certain matters and annexes relevant documents.
Annexed to the affidavit of Ms McKibbin is a Letter of Request from the District Court of Zurich 1st Division dated 16 January 2019, and supporting financial and bank records that were enclosed with the Letter of Request. A certified translation into English of the Letter of Request and the supporting records was also provided. That Letter of Request was forwarded to the Commonwealth Attorney General's Department by the Supreme Court of the Canton of Zurich under cover of a letter dated 10 July 2019.
Annexed to the affidavit is also a draft Subpoena to Attend to Give Evidence addressed to Ms Fagan, drafted to give effect to the Letter of Request should the application be approved.
The proceedings in the District Court of Zurich relate to an "appeal on points of law in the verdict of 11 August 2014 regarding inheritance distribution". Mr Walter Dänzer is the claimant and the respondents are Ms Christa Theresia Bachmann-Dänzer and Ms Fagan. The claimant in the proceedings alleges that he received a letter in the beginning of September 2016, from an unknown sender, posted on 23 August 2016 from Australia, which enclosed various bank records, and that this was the first time these bank records had come to his attention. The first respondent in the proceedings, however, Ms Bachmann-Dänzer disputes that the bank records only came to Mr Dänzer's attention at this time, and rather asserts that the bank records had been in the possession of the second respondent, Ms Luzia Carolina Dänzer Fagan, as early as September 2013 and further, that they had been sent by her to Mr Dänzer a long time before September 2016.
The document goes on to request that because Ms Fagan has not given evidence in the proceedings that the competent authorities in Australia assist in relation to her examination. The request form also sets out a number of questions in relation to the dispute over the financial document. These include: whether Ms Fagan had knowledge of the documents; when and where the documents came to her knowledge; whether she brought the documents to the attention of Mr Dänzer; whether she sent Mr Dänzer the envelope, a copy of which is attached to the letter of request, and the nature and frequency of her contact with Mr Dänzer at certain times.
Under the EC Act, there are three prerequisites to be satisfied before this Court would make the orders sought. The first is that the application before the Court is made pursuant to a request issued by a court exercising jurisdiction in a place outside New South Wales, under s 32(1)(a) of the EC Act. The requesting court is defined in s 31 of the Act as a court or tribunal on whose behalf a request is issued. It appears clear to me that this request has been made by such a court in that the documentation discloses that the requesting court is the District Court of Zurich in Switzerland and the request has been made through the Supreme Court of the Canton of Zurich.
The second prerequisite, under s 32(1)(b) of the EC Act, is that the evidence to which the application relates is to be obtained for the purposes of proceedings which have been instituted before the requesting court. The documentation before me confirms that proceedings have indeed been commenced in relation to an appeal on points of law from a previous inheritance distribution verdict, and the Zurich District Court file number for the pending civil matter has been cited.
The third prerequisite, outlined in s 32(2) of the EC Act, is that the overseas proceedings do not relate 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. This is not the case in these proceedings and thus this prerequisite is satisfied.
I was referred by Mr Tynan of counsel, who appeared on behalf of the Attorney General in this application, to the decision of British American Tobacco Australian Services Ltd v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158, which adopts, at [42], for Australian purposes the useful summary, provided in an English High Court decision, of relevant factors that are to be taken into account when considering the making of orders as sought in the present application. To the extent relevant in the present case, I have taken these factors into account.
Furthermore, it is clear that the contents of the subpoena to attend to give evidence annexed to Ms McKibbin's affidavit fall within the powers of this Court to give effect to an application for assistance, as prescribed in s 33(3)(a) of the Act, and the steps to be taken can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court within s 33(4).
I am therefore satisfied that the provisions of the Act have been complied with for the purposes in this application. I also note further the general principle that it is appropriate to lend assistance to foreign courts of proper jurisdiction and that comity requires this Court to view a letter of request, such as this, issued by a foreign court before it benevolently.
Accordingly, the orders of the Court are:
1. Pursuant to s 33 of the Evidence on Commission Act 1995 (NSW), leave is granted to the plaintiff to issue and serve a Subpoena to Attend to Give Evidence addressed to Luzia Carolina Dänzer Fagan, described in the Request to be of [Address in NSW], in the form of Annexure "B" to the affidavit of Emma McKibbin affirmed 16 June 2020.
2. A Registrar of this Court is appointed as Examiner in relation to the examination of Luzia Carolina Dänzer Fagan under r 52.2 of the Uniform Civil Procedure Rules 2005 (NSW).
3. A copy of the Summons, the affidavit of Ms McKibbin affirmed 16 June 2020 and these Orders be served on Ms Fagan.
4. The plaintiff has leave to approach the Court to appoint a date and place for the examination of Ms Fagan.
5. Following the completion of the examination of Luzia Carolina Dänzer Fagan:
1. A transcript of the examination be prepared and certified in accordance with rules 24.14(1)-(3) of the Uniform Civil Procedure Rules 2005 (NSW).
2. The certified transcript, and any exhibit is to be retained by the examining Registrar and be sent by the examining Registrar to the Principal Registrar of the Supreme Court in accordance with rules 52.4(3) and 52.4(4) of the Uniform Civil Procedure Rules 2005 (NSW).
3. A Registrar of this Court is to issue a sealed Certificate, and send that Certificate and annexure to the plaintiff, in accordance with rule 52.5 of the Uniform Civil Procedure Rules 2005 (NSW).
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Decision last updated: 26 June 2020