Indochina Medical Co Pty Ltd v Nicolai

Judgment 1BARRETT JA: Mr Yves Nicolai, a former officer of Indochina Medical Co Pty Ltd ("IMC"), contends that a debt owed by IMC and payable on demand was assigned to him. He demanded payment but IMC did not pay. 2Mr Nicolai brought proceedings against IMC in the Supreme Court. His case was pleaded briefly in a statement of claim. IMC filed a defence from which it appears that a matter in dispute concerns the payment terms and, in particular, whether the debt is payable on demand. It further appears that the contract or other dealing that gave rise to the debt was oral and that the governing law may be the law of France or the law of Switzerland or the law of Western Australia. 3On or about 30 January 2013, IMC filed a notice of motion with a view to obtaining information from certain persons resident outside Australia who it was thought might be able to assist its case or, at least, assist its understanding of relevant facts. 4By that notice of motion, IMC made several applications under s 6(1) of the Evidence on Commission Act 1995. The orders sought by the notice of motion should be set out in full: 1. That 1.1 Pursuant to s 6(1)(b) of the Evidence on Commission Act 1995, Ms Catherine Anne Kunz be appointed commissioner to conduct the examination of Mr Paul Billon on oath or affirmation in Switzerland for the purpose of producing evidence on behalf of the defendant in these proceedings. 1.2 Pursuant to s 6(1)(b) of the Evidence on Commission Act 1995, Mr Guillaume Tattevin be appointed commissioner to: 1.2.1 conduct the examination of Ms Valerie Gueulle on oath or affirmation in France for the purpose of producing evidence on behalf of the defendant in these proceedings; and 1.2.2 produce evidence on behalf of the defendant in these proceedings; 1.3 Pursuant to s 6(1)(b) of the Evidence on Commission Act 1995, Mr Alexander Troller be appointed commissioner to produce evidence on behalf of the defendant in these proceedings; and 1.4 The evidence adduced in accordance with orders 1.1 to 1.3 shall take the form of affidavits and may be tendered as evidence in the proceedings pursuant to s 8 of the Evidence on Commission Act 1995. 2. Alternatively, pursuant to s 6(1)(c) of the Evidence on Commission Act 1995: 2.1 a letter of request be issued to the relevant judicial authority in Switzerland for the examination of Mr Paul Billon; 2.2 a letter of request be issued to the relevant judicial authority in France for the examination of Ms Valerie Gueulle; 2.3 a letter of request be issued to the relevant judicial authority in Switzerland for the examination of Mr Guillaume Tattevin; and 2.4 a letter of request be issued to the relevant judicial authority in Switzerland for the examination of Mr Alexander Troller, for the purpose of producing evidence on affidavit on behalf of the defendant in these proceedings." 5Mr Billon and Ms Gueulle, the persons mentioned in orders 1.1 and 1.2, were identified in the supporting affidavit of IMC's solicitor as persons from whom IMC "anticipates that it will want to adduce lay evidence". Mr Nicolai has deposed in general terms to conversations he had with Mr Billon in 1999. It was suggested from the bar table that Ms Gueulle also may be able to give evidence about oral communications of relevance but any capacity she may have to do so was not the subject of explicit evidence. Mr Tattevin and Mr Troller (mentioned in Orders 1.2 and 1.3) were identified in the solicitor's affidavit as legally qualified persons able to give evidence of the content of relevant laws of France and Switzerland respectively. Ms Kunz (referred to in Order 1.1) is not mentioned in the affidavit but was said in the course of submissions to be a Swiss lawyer. All three lawyers are retained by IMC. 6IMC's notice of motion was heard by Young AJ on 15 March 2013. For reasons published on 30 May 2013 (Nicolai v Indochina Medical Co Pty Ltd [2013] NSWSC 654), his Honour dismissed the application with costs. 7It is from that decision that IMC now seeks to appeal. Because the order was interlocutory, leave to appeal is required (Supreme Court Act 1970, s 101(2)(e)). In addition and because IMC's summons seeking leave to appeal was filed a few days after the prescribed deadline, leave cannot be granted unless an order extending time is made. 8In accordance with directions previously made, the application for extension of time, the application for leave to appeal and the appeal itself were heard concurrently. Because a measure of public importance attaches to the issues raised as to the deployment of the powers of the Supreme Court in facilitating the obtaining of evidence in foreign countries (and since the minor delay in seeking leave to appeal has not been shown to have produced any appreciable prejudice), I am of the opinion that time should be extended and leave to appeal should be granted.

The statutory provisions 9Before turning to the judge's reasons and the grounds of appeal, I should say something about the relevant legislation. 10As the claims set out at [4] above show, IMC relies primarily on s 6(1)(b) of the Evidence on Commission Act and secondarily on s 6(1)(c). Section 6 is within Part 2 of the Act (consisting of s 4 to s 16 and headed "Examination of witnesses abroad") and is in these terms: "(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order relating to a person outside Australia: (a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint, or (b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia, or (c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person or cause it to be taken. (2) In deciding whether it is in the interests of justice to make such an order, the matters to which the superior court is to have regard include the following: (a) whether the person is willing or able to come to the State to give evidence in the proceeding, (b) whether the person will be able to give evidence material to any issue to be tried in the proceeding, (c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by making or refusing to make the order." 11By virtue of a definition in s 4, "superior court" includes the Supreme Court. 12Section 4 also contains a definition (of the inclusive kind) of "examination", as follows: "'examination' includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by a court under this Part." 13As to the meaning of "evidence", when used in relation to an examination, s 5 provides: "A reference in this Part to evidence taken in an examination includes a reference to: (a) a document produced at the examination, and (b) answers made to any written interrogatories presented at the examination, whether the answers are made in writing or are made orally and put in writing." 14Provisions ancillary to s 6 are found in s 7: "(1) If a superior court makes an order of the kind referred to in section 6(1)(a) or (b), the court may, at the time of making the order or at a later time, give such directions as it thinks just relating to the procedure to be followed in relation to the examination, including directions about: (a) the time, place and manner of the examination, and (b) any other matter that the court thinks relevant. (2) If a superior court makes an order of the kind referred to in section 6(1)(c), the court may include in the order a request about any matter relating to taking that evidence, including any of the following matters: (a) examination, cross-examination or re-examination of the person, whether the person's evidence is given orally, on affidavit or otherwise, (b) attendance of the Australian legal practitioner representing each party to the proceeding in question and participation of those persons in the examination in appropriate circumstances, (c) any matter prescribed by the regulations." 15The use of evidence obtained under s 6 is regulated by s 8: "(1) The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding: (a) a person's evidence taken in an examination held as a result of an order made under section 6, or (b) a record of that evidence. (2) Evidence of a person so tendered is not admissible if: (a) it appears to the court's satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or (b) the evidence would not have been admissible had it been adduced at the hearing of the proceeding." 16In British American Tobacco Australia Services Ltd v Eubanks [2004] NSWCA 158; (2004) 60 NSWLR 483, a case concerning Part 4 of the Evidence on Commission Act ("Taking of evidence for foreign and Australian Courts"), Spigelman CJ pointed out, with the concurrence of Handley JA and Bryson JA, that the Evidence on Commission Act of this State is part of the statutory mechanism by which Australia's domestic law implemented the provisions of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 847 UNTS 231 (dated 18 March 1970), which entered into force for Australia on 22 December 1992. I shall refer to that convention, which is 1992 No 37 in the Australian Treaty Series ([1992] ATS 37), as "the Hague Evidence Convention". 17France has ratified the Hague Evidence Convention, as has Switzerland. The convention is accordingly in force between Australia and France and between Australia and Switzerland. Counsel for both parties accepted the relevance of the Hague Evidence Convention to the interpretation of Part 2 of the Evidence on Commission Act.

The judge's decision 18The primary judge referred to "both legal and practical difficulties" faced by IMC stemming largely from the circumstance that, under many European systems, including those of France and Switzerland, the formal gathering and recording of evidence for foreign court proceedings otherwise than by local judicial personnel is regarded as an invasion of sovereignty and is therefore prohibited; and that IMC did not know precisely what evidence Mr Billon and Ms Gueulle might be able to give about the circumstances in which the debt arose. His Honour said that there was a paucity of evidence as to whether either of them was currently connected with or well disposed towards IMC. 19The judge then referred to so-called "blocking laws" of France and Switzerland which prevent information and documents being used to assist foreign legal proceeding and contain penal provisions under which someone who obtains evidence or documents to aid foreign court proceedings may be imprisoned. 20Both parties had put into evidence opinions from French and Swiss lawyers as to the blocking laws and the consequences of contravening them. His Honour noted that the opinions "basically concur" but was of the view that Mr Nicolai's legal experts had raised significant matters that were "not answered by IMC". 21In relation to France, the judge took the view that IMC had "not replied to" an opinion of Mr Nicolai's expert (which appeared to the judge to be correct) that the blocking law is inapplicable where the litigation is covered by the Convention between the United Kingdom and France Respecting Legal Proceedings in Civil and Commercial Matters (signed at London, 2 February 1922), which was extended to apply to Australia from 22 June 1928 ([1928] ATS 2). 22In relation to Switzerland, the judge referred to the opinion of Mr Nicolai's expert (which his Honour regarded as reinforced by a letter from the Swiss Federal Justice Department) that, in his Honour's words (at [31]), "there is no problem in a person interviewing a potential witness in foreign proceedings in Switzerland and even taking a statement so long as the statement is not sworn or affirmed and there is no movement of documentary material". The judge added that, since the case involved a disputed oral transaction, documents did not seem to be a relevant consideration. 23On the basis of this assessment of the opinions as to foreign law, the judge concluded (at [33]) that "the difficulties which IMC says it is facing in preparing its case are not as serious as it has put to me". 24Attention was then given to provisions of the Evidence on Commission Act. The judge said that, under s 6(2)(b), a significant factor for the court to take into account is whether the proposed examinees appear to be persons who may provide material evidence. He was satisfied that there was "just sufficient in the background material for me to decide this factor in favour of IMC", noting that the factor is not a rigid one. Reference was made to Hardie Rubber Co Pty Ltd v General Tire & Rubber Co [1973] HCA 66; (1973) 129 CLR 521 at 559. 25As to s 6(2)(a) of the Evidence on Commission Act and the requirement that the court consider whether the proposed examinees are willing or able to travel to New South Wales to give evidence in the proceedings, his Honour said (at [35]) that there was "virtually no evidence as to Mr Billon or Ms Gueulle's willingness or ability to assist in proceedings"; and that the lack of such evidence "inclines me to refuse the present application". 26The judge then proceeeded to deal with a matter of fundamental importance, that is, "whether the statute only applies to obtaining evidence to be used at a trial or whether it also covers preparatory steps". This, he said, raised the question whether use of the word "evidence" in the Act means that only matters which are sought to be admitted at the trial are covered or whether background material, hearsay, and other inadmissible material is covered. 27Reference was made to the opinion of Professor McClean (David McClean, International Co-operation in Civil and Criminal Matters (2002) Oxford University Press at 112) that the word "evidence" in the Hague Evidence Convention focuses on the witnesses, questions to be asked and documents to be inspected relevant to the hearing, a view that was approved by this Court in British American Tobacco Australia Services Ltd v Eubanks (above) at [36]. In that case, as the judge recognised, "evidence" when used in s 33 of the Evidence on Commission Act was held to be restricted to evidence to be given at a trial and to have the same meaning throughout the Act. The judge observed that the reason for this view was, at least in part, the origin of the Evidence on Commission Act in the Hague Evidence Convention already noted. 28The judge then referred to Allstate Life insurance Co v Australia and New Zealand Banking Group Ltd (No 29) (1996) 64 FCR 61 at 69 where Lindgren J said of s 7 of the corresponding Commonwealth Act, the Foreign Evidence Act 1994 (Cth): "The letter of request procedure refers to the taking of evidence to form part of the evidence on the trial of an issue and is not available to enable a party to obtain pre-trial 'information' which may assist preparation for the trial". 29His Honour also referred to Lindgren J's previous decision in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 18) (1995) 133 ALR 667 which was to the same effect. 30The primary judge stated his conclusions on the central question at [41] - [44]: "There is a very real difference between taking statements as part of the preparation for a trial and evidence to be given at the trial. In the case of a local witness, the witness usually has no obligation to speak to any lawyer about an upcoming case. If there is a person who is thought to have vital information but who declines to speak to a party's lawyer, the only way forward is to subpoena the witness to give evidence at the trial and call him or her cold. Apart from cases where the witness was the solicitor for both parts [sic] to a transaction, this is something which experienced trial advocates are reluctant to do unless it is absolutely necessary. Why, it might be asked rhetorically, should an overseas witness have less rights and be compelled not only to answer questions but also to do so on oath? Again, there is a very real difference between taking a statement from a potential witness and taking evidence on commission for use in the trial. In the former process, only the party seeking the evidence is present, leading questions may be asked and the party may elect whether or not to use the statement obtained. When evidence is given on commission, the opponent is present and, with some modification, only admissible questions are allowed. It also must be noted that in the present case, it is suggested that the evidence be received by a lawyer for IMC. This is quite contrary to what happens in the standard case where the commissioner is usually a judge or an independent Senior Counsel." 31His Honour next dealt with a submission made by counsel for IMC that the Evidence on Commission Act should be given a wide interpretation and that the use of the word "examination" was consistent with a process of obtaining information; and that courts allow a defendant who has been forced into the forum greater flexibility in the operation of the statute. Willis v Trequair [1906] HCA 32; (1906) 3 CLR 912 at 924 was cited in connection with the latter proposition. The judge was of the opinion that those matters did not allow him to depart from the view of the statute that he had formed as to the nature and extent of the statutory jurisdiction. 32Finally, the judge observed that the difficulties presented by the blocking laws might be avoided if the persons concerned travelled to London and submitted to examination there.

Grounds of appeal 33IMC challenges certain of the judge's findings of fact, specifically, that Mr Billon and Ms Gueulle are not presently connected with IMC; that the convention made in 1922 between France and the United Kingdom (and extended to Australia in 1928) renders the French blocking law inapplicable; that the Swiss blocking law is not contravened if a witness is interviewed and a statement not verified by oath or affirmation is taken; that documents are not a relevant consideration in this case; that there was no (or virtually no) evidence of the witnesses' unwillingness to travel to New South Wales to give evidence; and that the blocking laws could be avoided by the expedient of travelling to London. 34If the judge fell into factual error in any of these ways, there will be a question about the materiality of the particular factual matter to what was undoubtedly a discretionary decision. In terms of the formulation in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, the consequence of the factual error would be that this Court was required to re-exercise the discretion on the basis of the correct facts. The judge's decision would therefore be reversed only if the correct facts did not warrant exercise of the discretion in the same way. 35That leads to the remaining ground of appeal which stands in an entirely different light. IMC says that the judge erred in finding that the Evidence on Commission Act does not confer power on the court to make the orders that IMC sought. IMC thus raises the nature and scope of the powers created by s 6. Only if IMC succeeds on that ground of appeal will the factual questions be of any relevance. 36It is appropriate, therefore, to address this ground of appeal first. An initial step is to consider the nature of some of the processes provided for by s 6 of the Evidence on Commission Act.

Evidence on commission 37The procedure generally described as taking evidence on commission was developed by the Court of Chancery and came to be deployed in aid of common law proceedings to mitigate the severity of the rule that evidence in an action at law could only be given viva voce before a jury. At a later point, the East India Company Act 1772 (UK) empowered the common law courts to award a writ in the nature of mandamus or commission to judges in India to enable examination of witnesses and the taking of depositions in India for the purpose of English proceedings. That authority was extended by the Evidence on Commission Act 1831 (UK) to the examination and taking of depositions in all British possessions. Provision for like procedures within the constituents of the United Kingdom itself and between the United Kingdom and foreign countries was made by subsequent legislation. When rules under the Supreme Court of Judicature Act 1873 (UK) fixed the examination of witnesses viva voce at trial as the normal method of procedure in all courts, those rules made general provision for the taking of evidence on commission. Similar provision was made by statute in many jurisdictions (see, for example, Witnesses Examination Act 1900 (NSW)). An account of these developments is given in the judgment of Poole J in McDonald v Page [1923] SASR 167. The jurisdiction to appoint commissioners to take evidence out of court was exercised by the Supreme Court of New South Wales in the early years of its existence: see, for example, Hobbs v Dangar [1839] NSWSupC 18 and Moutry v Boyd [1848] NSWSupC 56. 38An appointment of this kind clothed a person other than the court's judicial officers with authority to receive testimony. The process of nomination and appointment entailed an order for examination on oath before the particular person and an order that a writ of commission issue to that person accordingly (see, for example, Henderson v Primmer (1986) 68 ACTR 9). A typical form of writ of commission, such as that prescribed by the Evidence on Commission Rules made by the Supreme Court of New South Wales in 1952, was expressed to issue in the name of the Queen by the Chief Justice under the hand of the Prothonotary: R E Walker, The Practice of the Supreme Court of New South Wales at Common Law (1958) Law Book at 739. 39It was the writ of commission (or dedimus potestatem - "we have given power") that was the source of a commissioner's authority to administer an oath or affirmation. That authority, although conferred by the court, did not, of course, run in a foreign jurisdiction unless accommodated by the law of that place (see, as to the ability of persons authorised by a foreign court to take evidence in New South Wales, s 26B of the Oaths Act 1900). Thus, in Wolfe v Hart (1879) 5 VLR (E) 52, a commission issued by the Supreme Court of Victoria for the taking of evidence at Hamburg was returned unexecuted with a report stating (at 54) that, under German law, "it is not allowed that private persons, even appointed as commissioners by the Court of Australia, take oath and let swear other persons". 40The procedure for the taking of evidence pursuant to a writ of commission was not fixed, although it was commonplace for the evidence to be led in the conventional way by questions put by a lawyer acting for the party seeking to elicit the evidence, often with provision also for cross-examination by a lawyer for the opposing party. The essentially passive role of the commissioner emerges from Practice Note (Chancery: Deposition) [1981] 1 WLR 1560 in which Sir Robert Megarry VC (at 1561) recounted his experience as a commissioner in a particular case: "In the event, no objections to any of the evidence were taken, and so for most of two days I simply sat and listened to the evidence, with nothing to decide and no useful function to discharge."

Recognition of commissioners under the Hague Evidence Convention 41Article 17 of the Hague Evidence Convention appears in chapter II, headed "Taking of evidence by diplomatic officers, consular agents and commissioners". Article 17 is in these terms: "In a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the courts of another Contracting State if - (a) a competent authority designated by the State where the evidence is to be taken has given its permission either generally or in the particular case; and (b) he complies with the conditions which the competent authority has specified in the permission. A Contracting State may declare that evidence may be taken under this Article without its prior permission." 42Article 21 provides: "Where a diplomatic officer, consular agent or commissioner is authorised under Articles 15, 16 or 17 to take evidence - (a) he may take all kinds of evidence which are not incompatible with the law of the State where the evidence is taken or contrary to any permission granted pursuant to the above Articles, and shall have power within such limits to administer an oath or take an affirmation; (b) a request to a person to appear or to give evidence shall, unless the recipient is a national of the State where the action is pending, be drawn up in the language of the place where the evidence is taken or be accompanied by a translation into such language; (c) the request shall inform the person that he may be legally represented and, in any State that has not filed a declaration under Article 18, shall also inform him that he is not compelled to appear or to give evidence; (d) the evidence may be taken in the manner provided by the law applicable to the court in which the action is pending provided that such manner is not forbidden by the law of the State where the evidence is taken; (e) a person requested to give evidence may invoke the privileges and duties to refuse to give the evidence contained in Article 11." 43Article 11, referred to at the end of article 21, allows a person to "refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence", being a privilege or duty sourced in law. 44As I have said, the Hague Evidence Convention is in force between Australia and France and between Australia and Switzerland. But the evidence concerning relevant foreign law made available in these proceedings does not explain precisely how either France or Switzerland has incorporated into its domestic law mechanisms calculated to accommodate the permission envisaged by article 17 and the procedures and privilege created by articles 21 and 11. The evidence does, however, include an English translation of "International Judicial Assistance in Civil Matters - Guidelines" 3rd ed (2003, updated to July 2005) published by the Federal Department of Justice and Police of the Swiss Confederation. It may, I think, be inferred from that document that Swiss law does confer permission, as envisaged by article 17, for a commissioner appointed by a court in an initiating jurisdiction to "take evidence" within Switzerland "in aid of proceedings commenced in" the court of the initiating jurisdiction; and that the article 21 procedures and the article 11 privilege also form part of the law of Switzerland. The French law materials in evidence warrant a like assumption as to the law of that country, particularly since the "blocking law" (article 1 bis of the Law No 68-678 of 26 July 1968) is expressed to operate "[s]ubject to international treaties or agreements". Submissions proceeded accordingly and I am content to do likewise. 45On that basis, the article 17 specification circumscribes the permitted conduct in France or Switzerland of a commissioner appointed under s 6(1)(b) of the Evidence on Commission Act by both function ("take evidence") and purpose ("in aid of proceedings commenced . . ."). Three significant things are indicated. First, it is made clear that proceedings in the initiating jurisdiction must have been commenced. Second, the words "in aid of" show that the permitted conduct of the commissioner is that which assists the commenced proceedings. Third, that conduct must be within the description "take evidence". The permission, under the law of France or Switzerland reflecting article 21(c) of the convention, for a commissioner to administer an oath or affirmation, should be presumed to extend only to permitted conduct of a commissioner thus understood.

The status of the product of the examination in the local proceedings 46Examination pursuant to a commission issued under s 6(1)(b) of the Evidence on Commission Act does not form part of the trial of the proceedings in which the order for issue of the commission is made. The process of examination is distinct from the process of taking the evidence of witnesses in the proceedings. The examination is a "private proceeding" which is not accessible to the public (Magnusson v ACT Health and Community Care Service [2001] ACTSC 3 at [9]) so that one of the fundamental features of court proceedings is absent. 47It is true that s 8 of the Evidence on Commission Act refers to "a person's evidence taken in an examination" ("evidence" there including, under s 5, a document produced at the examination and answers made to any written interrogatories presented at the examination). But, as s 8 itself makes clear, such "evidence" will not be "evidence in the proceeding" in which the order for examination was made unless a party to the proceedings tenders it at the trial. The product of an examination "does not per se become evidence in the case": Fisher v CHT Ltd [1965] 1 WLR 1093 at 1095 per Edmund Davies J. In Australian Securities and Investments Commission v Rich [2004] NSWSC 467; (2004) 49 ACSR 578, Austin J referred (at [15]) to the need for "a separate tender" of the product of an examination, having regard to s 8 of the Act. 48Both the Evidence on Commission Act and provisions of the Uniform Civil Procedure Rules 2005 regulate the use that can be made in the Supreme Court of testimony obtained on commission. Because the procedure is ancillary to a trial, use at the trial of the evidence obtained by means of the statutory process and tendered in the way just described is subject to conditions. These are conveniently stated in the commentary on rule 24 at paragraph [24.1.10] of Ritchie's Uniform Civil Procedure NSW. In summary, the evidence must satisfy the same criteria of admissibility as if it had been given at the trial (rule 31.6(2)(b) and Evidence on Commission Act, s 8(2)(b)), the evidence is not admissible if the court is satisfied that the witness is within the State and able to attend the hearing (rule 31.6(2)(a)) and, even if the evidence is technically admissible, the Court has a discretion to exclude it if satisfied that the the interests of justice so require (rule 31.6(3)). The general provisions of the Evidence Act 1995 as to admissibility also apply, the expectation being that the person conducting the examination may not be closely concerned with questions of admissibility: British American Tobacco Australia Services Ltd v Eubanks (above) per Spigelman CJ at [71]-[75]. In the first instance, the tendered record may be admitted "saving all just exceptions", so that detailed objections to admissibility are dealt with in the ordinary course of trial: Hatt v Hatt (1877) 3 VLR (E) 227. 49Today's procedures do not include the issue of a writ of commission as such. They do, however, entail, in s 6(1)(b) of the Evidence on Commission Act, the issue of a "commission for examination" by which the court authorises a particular person to perform a function intimately connected to a particular proceeding in which the court has assumed and begun to exercise jurisdiction. The status and powers of the commissioner derive from the court and the result of the performance of the person's functions, if placed before the court, have generally the same status as evidence given before the court.

Assessment of the claim for Orders 1.1 and 1.2 50Orders 1.1 and 1.2 in the notice of motion, if granted, would cause the issue of commissions under which each named commissioner was to conduct an "examination" of a particular person in another country. The orders would, in terms, require that the "examination" be "on oath or affirmation" (thus reflecting the terms of s 6(1)(b)); and that the examination be for the purpose of producing "evidence on behalf of the defendant in these proceedings". Order 1.4 would require that the evidence "adduced" in accordance with Orders 1.1 and 1.2 "take the form of affidavits". 51IMC necessarily argues that s 6(1)(b) allows a procedure under which a commissioner elicits facts from the person under examination and then drafts an affidavit which embodies the evidence of the person that it is proposed to tender. Mr Nicolai maintains that any such process lies beyond the scope of the Evidence on Commission Act. 52IMC's aim, as explained in the course of oral argument before this Court, is to clothe its legal representatives who are already abroad (Ms Kunz and Mr Tattevin) with "the necessary authority that France and Switzerland require to ask the questions and investigate documents in a way that a lawyer would ordinarily do in Australia" - a process that "would culminate in the preparation of an affidavit that is then sworn in France or Switzerland". Two stages are envisaged. First, the commissioner would undertake a preliminary inquiry (not on oath or affirmation) to discover facts to which the person concerned could depose, followed by an assessment of the usefulness of the facts elicited and a recording in writing of such of them as the commissioner considered useful, with a view to that document becoming an affidavit. At the second stage, the commissioner would administer an oath or affirmation and take from the person concerned the affidavit thus prepared by the commissioner. The submissions made it clear that the commissioner would not be seen as obliged to include in the affidavit elicited facts adverse to IMC's position and that, if nothing judged by the commissioner to be useful from IMC's perspective were forthcoming, there would be no affidavit and whatever facts the commissioner had brought to light would not be available for deployment in the trial. 53Implicit in this approach is the proposition that appointment as a commissioner under s 6(1)(b) carries some significance beyond conferral of the particular function that the section describes, that is, "examination ... on oath and affirmation ..." and entails some form of permission or imprimatur extending to preliminary investigation and selection. 54It was submitted on behalf of IMC that the process outlined is within the Act's concept of "examination" and could be implemented under a "commission for examination". It was emphasised that the non-exhaustive definition of "examination" in s 4 indicates that the term has a broad meaning when used in s 6(1)(b); and that, as indicated by s 5, the production of documents may be ancillary to oral testimony so that an examination might perhaps extend so as to cause such documents to be part of the material elicited. It is, in my opinion, unnecessary to decide whether that is so and what the effect of s 5 might be. This is because, while s 6(1)(b) admittedly makes no reference to "evidence", its manifest purpose is to cause evidence as such to be assembled. 55This is shown by s 8(1) of the Act to which reference has already been made. That section allows the court trying the proceedings to receive "as evidence in the proceedings" what is unambiguously described as "a person's evidence taken in an examination held as a result of an order made under section 6" (or "a record of that evidence"). There is a clear indication in s 8(1) that the only product of examination that may be tendered in the proceedings is the person's "evidence" taken in the examination (or a record of the "evidence" so taken) and, accordingly, that "evidence" alone may properly be elicited by an examination. The purpose of an examination at a place remote from the court is thus to cause material that would have been placed before the court by direct testimony had the witness been present but is in fact obtained at a remote location to be put into a form in which it may be tendered to and received as evidence. It is not possible to postulate any broader purpose of an examination - in particular, a purpose of permitting a party to engage in inquiry or discovery, the results of which do not ultimately take a form that can be tendered under s 8. 56Section 6 was enacted against the historical background to which brief reference has been made (see [37] - [40] above) and in order to put the law of New South Wales into a form that gives effect to the Hague Evidence Convention (see [16] above). That twofold genesis serves to confirm the correctness of the proposition just stated. 57Cotton LJ observed in Armour v Walker (1884) 25 Ch D 673 (at 677) that a commission for the examination of witnesses abroad should not be "a roving commission to give the party a chance of finding evidence abroad". That observation was repeated by Street CJ in Sydney Ferries Ltd v SS Tahiti (1928) 28 SR (NSW) 307 (at 311) and by Gibbs J in Hardie Rubber Co Pty Ltd v General Tire & Rubber Co (above) at 537 (in a judgment upheld by the Full Court of the High Court). And while, as Walsh J pointed out in the last-mentioned case (at 558), it is not necessary to show that it is certain or almost certain that the person identified will give material evidence, it must appear to the court asked to order the taking of evidence on commission that there is a likelihood that this is the case. 58In Burchard v MacFarlane; Ex parte Tindall and Dryhurst [1891] 2 QB 241, a clear distinction was drawn between inspection and discovery on the one hand and "a procedure to examine witnesses in the course of proof for the purpose of establishing the facts" on the other; and it was held that the provisions of the Evidence by Commission Act 1843 (UK) were concerned only with the examination of persons "who are able to bear testimony with regard to the issues in issue between the litigant parties". In Radio Corporation of America v Rauclaud Corporation [1956] 1 QB 618, the Foreign Tribunals Evidence Act 1856 (UK) was held to be concerned with "testimony" in a sense described by Devlin J (with the concurrence of Lord Goddard CJ) as follows (at 646): "Testimony which is in the nature of proof for the purpose of the trial is permissible. Testimony, if it can be called 'testimony', which consists of mere answers to questions on the discovery proceedings designed to lead to a train of inquiry, is not permissible." 59The distinction drawn in the cases between the obtaining of evidence for use in a trial and the obtaining of information which might lead to the obtaining of evidence was referred to by members of the House of Lords in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547, a case under the United Kingdom legislation by which the Hague Evidence Convention was implemented domestically (the Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK)). 60The process envisaged by IMC as outlined at [52] - [53] above is inconsistent with these established principles as to the taking of evidence on commission. It is also inconsistent with the procedure under which a commissioner may operate in a foreign country under the authority and protection of articles 17 and 21 of the Hague Evidence Convention as recognised and implemented by the law of the foreign country. As discussed at [45] above, the permitted conduct of a foreign commissioner in France or Switzerland is confined to the taking of "evidence" of a person "in aid of" a subsisting legal proceeding and the permission to administer an oath or affirmation extends only to the process by which such "evidence" is taken. In British American Tobacco Australia Services Ltd v Eubanks (above), Spigelman CJ quoted with approval (at [35]) an extra curial observation of Lord Collins of Mapesbury (as he now is) made in 1994 (Lawrence Collins, Essays in International Litigation and the Conflict of Laws (1994) Oxford University Press at 309) that: "the Hague Evidence Convention was intended primarily to apply to `evidence' in the sense of material required to prove or disprove allegations at trial. It was not intended to apply to discovery in the sense of the search for material which might lead to the discovery of admissible evidence." 61On its proper construction, therefore, s 6(1)(b) does not permit the process that Orders 1.1, 1.2 and 1.4 would sanction. A commissioner cannot be appointed under that provision to interview a potential witness on oath or affirmation, discover from answers given upon pain of punishment for perjury what evidence that person is capable of giving, decide which parts, if any, of that evidence should actually be tendered, draft an affidavit containing those parts and administer a second oath or affirmation upon the signing of that affidavit. The primary judge correctly identified, at [41] - [44] of the judgment, set out at [30] above, the reasons why such a procedure is inconsistent with the taking of evidence on commission 62His Honour was right to regard the application for Orders 1.1 and 1.2 and, as ancillary to it, Order 1.4 as not "within the power given to the court by the statute" (at [48]).

Assessment of the claim for Order 1.3 63Order 1.3, if made, would purport to appoint Mr Troller as a commissioner to "produce evidence", being his own evidence. Such an order is not permitted by s 6(1)(b) of the Evidence on Commission Act. A commission under the section must be "a commission for examination of the person on oath or affirmation". While someone may no doubt examine their own conscience, they cannot put themself upon their oath or affirmation (as envisaged by s 6(1)(b)) and, in the relevant sense, "examine" themself. 64The primary judge was right to regard the application for Order 1.3 and, as ancillary to it, Order 1.4 as not "within the power given to the court by the statute" (at [48]).

Alternative resort to the letter of request procedure 65The foregoing conclusions about the claims for Orders 1.1 to 1.4 make it necessary to consider IMC's alternative claim for Order 2. That order, if made, would cause letters of request to be issued by the Supreme Court of New South Wales, directed to what the order describes as "the relevant judicial authority" in each of France and Switzerland. 66The application for the issue of such letters of request is made under s 6(1)(c) of the Evidence on Commission Act; and the request that the Supreme Court is invited to make of the judicial authorities of the particular foreign countries is that they "take the evidence of a person or cause it to be taken". 67The Hague Evidence Convention makes provision in chapter I ("Letters of Request") for the receipt of letters of request and, again, it should be assumed that the law of each of France and Switzerland makes available the processes and procedures envisaged by the convention. 68Article 1 of the convention provides: "In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act. A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated. The expression "other judicial act" does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures." 69Article 2 requires a contracting state to designate a "Central Authority" for the receipt of letters of request transmitted by a judicial authority of another contracting state and to forward them to the authority competent to execute them. 70Article 3 deals with the content of a letter of request: "A Letter of Request shall specify - (a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority; (b) the names and addresses of the parties to the proceedings and their representatives, if any; (c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto; (d) the evidence to be obtained or other judicial act to be performed. Where appropriate, the Letter shall specify, inter alia - (e) the names and addresses of the persons to be examined; (f) the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined; (g) the documents or other property, real or personal, to be inspected; (h) any requirement that the evidence is to be given on oath or affirmation, and any special form to be used; (j) any special method or procedure to be followed under Article 9. A Letter may also mention any information necessary for the application of Article 11. No legalisation or other like formality may be required." 71Article 7 allows the requesting court to be informed of the time and place at which the proceedings will take place so that that the parties and their representatives, if any, may be present. 72Article 9 is in these terms: "The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties. A Letter of Request shall be executed expeditiously." 73Article 10 requires the executing authority to apply its own law regarding the methods and procedures to be followed but, if a special method or procedure is requested, that is to be followed unless incompatible with the internal law of the country of execution or impossible of performance. Under article 13, the "documents establishing the execution of the Letter of Request" are to be sent by the requested authority to the requesting authority by the same channel that was used by the latter.

Assessment of the claim for Order 2 74The Supreme Court has power to make of the relevant authority in France or Switzerland a request, by letter of request, "for the examination of" each named person - with "examination" understood in the sense indicated by the provisions in chapter I of the Hague Evidence Convention, that is, a means of taking what both those convention provisions and s 6(1)(c) of the Evidence on Commission Act refer to as "evidence" in the sense to which reference has already been made. 75But a letter of request under s 6(1)(c) which seeks to take advantage of chapter 1 of the Hague Evidence Convention cannot be in the general and non-specific terms embodied in Order 2. To be efficacious for convention purposes, the letter must, in accordance with article 3, specify "the evidence to be obtained" and either "the questions to be put to the persons to be examined" or "a statement of the subject-matter about which they are to be examined". Furthermore, article 9 makes it clear that the judicial authority executing the request will apply its own law "as to the methods and procedures to be followed", unless the requesting court requests "a special method or procedure" that is not incompatible with the law of the country in which the request is executed. 76IMC does not envisage that the relevant authority in France or Switzerland will take "evidence" in the relevant sense. The expectation is that that authority will undertake the process of questioning and selection referred to at [52] - [53] above. The procedure in contemplation is not the taking of evidence. 77There is then the allied point that IMC has not, as envisaged by the convention, specified the evidence to be obtained, the questions to be put or the subject-matter of the examination. All that the affidavit in support of the notice of motion did was to suggest that the persons concerned may be able to give relevant evidence. 78In Pickles v Gratzon [2002] NSWSC 688; (2002) 55 NSWLR 533 (at [78] [79]), O'Keefe J made a close review of the approaches to be taken by the Supreme Court to an "in-bound" letter of request under the Hague Evidence Convention, that is, a request by a foreign court that the Supreme Court take evidence in New South Wales. O'Keefe J was of the opinion that the court's power to act in response to a request was enlivened "if the letter of request and other material before the Court indicates in general terms the evidence which is sought, that such evidence is relevant to the issues in the proceedings in respect of which it is sought, and that it is being obtained for the purposes of use at the trial in respect of which the request has been made." 79The same approach is appropriately taken to an application for the issue of a letter of request to a foreign authority: the court must see from the evidence before it, at least in general terms, the testimony that is sought, that that testimony is relevant to the issues in the proceedings before it and that the testimony is sought for the purpose of use at the trial. Only then is it possible for the court to judge whether what is sought is in truth "evidence". 80IMC did not put before the primary judge material establishing these core matters. While settling of the precise terms of a letter of request may perhaps be left until after the order for its issue has been made (Uniform Civil Procedure Rules, rule 24.5(1)), a judge cannot properly adjudicate an application for such an order unless given a clear and precise understanding of what the foreign authority will be asked to do by way of eliciting "evidence" and how the expected product will play a part in the proceedings before it. IMC did not provide any basis for a clear and precise understanding of that kind in this case. 81In State of Minnesota v Philip Morris Inc [1998] ILPr 170 at [64], Peter Gibson LJ, citing Re State of Norway's Application (No 1) [1987] 1 QB 433, said that where the matters on which examination is requested by a letter of request are too widely drawn, it may be inferred that the letter of request is designed to elicit information which might lead to the obtaining of evidence rather than to establish allegations of fact, and that this would "amount to an impermissible fishing expedition". It follows that where, as here, no matters are identified as those on which examination is requested, the inference of "impermissible fishing expedition" is virtually irresistible. 82IMC did not establish before the primary judge any proper foundation for the making of an order for the issue of a letter of request. The judge was right to refuse the application for Order 2.

The factual matters 83The conclusions reached mean that it is not necessary to determine the grounds of appeal concerning the judge's factual findings. I nevertheless address them briefly. 84As stated at [33] above, the challenged findings are: (a) that Mr Billon and Ms Gueulle are not presently connected with IMC; (b) that the convention made in 1922 between France and the United Kingdom (and extended to Australia in 1928) renders the French blocking law inapplicable; (c) that the Swiss blocking law is not contravened if a witness is interviewed and a statement not verified by oath or affirmation is taken; (d) that documents are not a relevant consideration in this case; (e) that there was no (or virtually no) evidence of the witnesses' unwillingness to travel to New South Wales to give evidence; and (f) that the blocking laws could be avoided by the expedient of travelling to London. 85As to (a), the judge's finding was that "[i]t seems that neither Mr Billon nor Ms Gueulle are presently involved with IMC or its holding companies". As counsel for IMC pointed out, however, there was evidence that Mr Billon is a director of IMC. To that extent, the judge misapprehended the position. There was no similar evidence concerning any of the other persons proposed to be examined, although IMC had been able to obtain a copy of Ms Gueulle's passport (as well as Mr Billon's) suggesting some measure of co-operation on her part. 86As to (b), (c) and (f), it is sufficient to say that the legal opinions tendered by the parties were not consistent in certain respects and that the conclusions the judge reached as to the relevant foreign law matters (which were questions of fact) were open on the very limited evidence he had, even though closer examination of the foreign law position might in due course cause the relevant issues to be viewed in a different light. 87As to (d), the judge merely observed that, because the contract was said to be oral, documents did not "seem to be a relevant consideration". It is put that there was reference in an affidavit of Mr Nicolai to a written loan agreement and that, while oral communications will be in issue, there are "numerous documents that the witnesses could foreseeably produce". Perhaps a better characterisation of the position, therefore, is that documents are likely to be of use, if at all, in elucidating the meaning and significance of oral communications. His Honour's observation may therefore be regarded as understating the potential use of documents. 88As to (e), counsel for IMC accepted in submissions before this Court that there was no evidence that the persons concerned had been asked to come to Australia. It was put that it would be pointless for them to visit Australia since they would expose themselves to penalty in the country of residence by bringing documents with them for the purpose of giving evidence or even by studying documents before departure with a view to using the resultant memory of content as part of testimony given here. 89That apparently startling proposition may or may not be valid. But the point is that, in relation to the application under s 6(1)(b), the judge was required by s 6(2)(a) to consider whether each relevant person was "willing or able to come to the State to give evidence in the proceeding" and his Honour was correct when he said that there was no (or virtually no) evidence on the subject. 90Had the case been one in which it was proposed that "evidence" be sought in each foreign country pursuant to the Evidence on Commission Act, the minor shortcoming in fact-finding (concerning association of Mr Billon and perhaps Ms Gueulle with IMC) would not have been sufficient to require re-exercise of the discretion by this Court.

Disposition 91In my opinion, orders should be made as follows:

1. Extend to 4 July 2013 the time for filing of the summons seeking leave to appeal.
2. Grant leave to appeal.
3. Direct that a notice of appeal in the form in the white folder be filed within seven days.
4. Dismiss the appeal.
5. That the appellant pay the respondent's costs of the proceedings in this Court. 92In conclusion, I note and repeat the primary judge's observation that the outcome on the application determined by him which was the subject of the proceedings in this Court does not preclude any future application by IMC for relief under the Evidence on Commission Act directed towards what is, in the true sense, the taking of evidence of Mr Billon or Ms Gueulle in a foreign country. 93EMMETT JA: These proceedings are concerned with an application by Indochina Medical Co Pty Limited (Indochina) for orders under the Evidence on Commission Act 1995 (the Commission Act). By notice of motion, Indochina sought those orders in proceedings brought by it against Mr Yves Nicolai. The motion was dismissed by a judge of the Equity Division. Indochina now seeks leave to appeal from that dismissal. A direction has been given that Indochina's application for an extension of time to seek leave to appeal, the application for leave to appeal and the appeal be heard concurrently. 94Section 6(1)(b) of the Commission Act relevantly provides that in any proceeding before a superior court the court may, if it appears in the interests of justice to do so, make an order relating to a person outside Australia for issue of a commission for examination of the person on oath or affirmation at any place outside Australia. In deciding whether it is in the interests of justice to make such an order, the matters to which the superior court must have regard include:

• whether the person is willing or able to come to New South Wales to give evidence in the proceedings;
• whether the person will be able to give evidence material to any issue to be tried in the proceedings; and
• whether justice will be better served by making or refusing to make the order. 95Mr Nicolai brought proceedings against Indochina in the Supreme Court in which he claims payment by Indochina of a debt that he says was payable on demand and was assigned to him. He alleges that he demanded payment of the debt and Indochina has failed to pay it. 96The defence filed by Indochina indicates that the substantial question in dispute in the proceedings will be the terms on which the loan that gave rise to the debt was made. Mr Nicolai asserts that it was repayable on demand. Indochina, by its defence, it does not deny that the debt is repayable on demand, but puts Mr Nicolai to proof of that question. 97By its notice of motion of 30 January 2013, Indochina sought orders, inter alia, that:
• Ms Catherine Kunz be appointed commissioner to conduct the examination of Mr Paul Billon on oath or affirmation in Switzerland for the purpose of producing evidence on behalf of Indochina;
• Mr Guillaume Tattevin be appointed commissioner to conduct the examination of Ms Valerie Gueulle on oath or affirmation in France for the purpose of producing evidence on behalf of Indochina;
• Mr Alexander Troller be appointed commissioner to produce evidence on behalf of Indochina; and
• the evidence adduced in accordance with those orders take the form of affidavits that may be tendered as evidence in the proceedings. 98Mr Billon and Ms Gueulle were identified as persons from whom Indochina may want to adduce lay evidence in the proceedings. Mr Tattevin and Mr Troller were identified as legally qualified persons able to give evidence as to the content of the laws of France and Switzerland. Ms Kunz is a Swiss lawyer. All three lawyers are retained by Indochina. Indochina's intention is that its representatives, Ms Kunz and Mr Tattevin, will be authorised to ask questions and investigate documents in a way that a lawyer might ordinarily do in Australia. That investigation would result in the preparation of an affidavit to be sworn in France or Switzerland. 99The commissioner would undertake a preliminary enquiry to discover facts to which a relevant witness could depose, and would assess the usefulness of the facts elicited and prepare an affidavit as to those facts. The commissioner would then administer an oath or affirmation and take an affidavit from the respective witness. The commissioner would not be obliged to include in the affidavit facts adverse to Indochina's position. If the commissioner concluded that no facts useful to Indochina's position were available, there would be no affidavit. The intention in relation to Mr Troller is that he would produce an affidavit for himself. 100I have had the advantage of reading in draft form the proposed reasons of Barrett JA. I agree, for the reasons given by his Honour, that the orders sought in the notice of motion, as summarised above, are not within the power given to the Court by the Commission Act. 101The notice of motion filed by Indochina also sought, in the alternative, that letters of request be issued by the Supreme Court directed to the relevant judicial authority in each of France and Switzerland. Under s 6(1)(c) of the Commission Act, a superior court may also make an order relating to a person outside Australia for issue of a letter of request to the judicial authorities of a foreign country to take the evidence for the person or cause it to be taken. I agree with Barrett JA, for the reasons given by his Honour, that Indochina did not establish before the primary judge any proper foundation for the making of an order for the issue of letters of request. 102Having regard to the measure of public importance that attaches to the issues raised in the proceedings, I agree with Barrett JA that time should be extended and leave to appeal should be granted. I agree that the orders proposed by his Honour should be made. As Barrett JA says, the outcome of these proceedings would not preclude any further application by Indochina for orders under the Commission Act directed towards the taking of evidence from the individuals identified in France, Switzerland or any other foreign country. 103GLEESON JA: I agree with Barrett JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2020