By summons dated 8 March 2022, filed in court today, the plaintiff, Nanoteko Pty Limited, brings ex parte proceedings under the Evidence on Commission Act 1995 (NSW) ("the Act") seeking orders under s 33 of that Act. The orders sought are that Nathan Pring be examined on a date to be allocated in 2022 via audio visual link by "Teams" and for leave to be granted to issue a subpoena to appear and produce to Mr Pring and a subpoena to produce to Testsafe Australia, his employer. The orders are also sought under Pt 24 and r 52.1 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
The application came before me today in my capacity as duty judge. Mr Bagley of counsel appeared for the plaintiff in the proceedings. He provided written submissions to the Court and also relied upon the affidavit of Anna Anatolyevna Vetrova dated 4 March 2022 and exhibit AAV-1 to that affidavit. That exhibit includes, inter alia, a letter of request for international judicial assistance pursuant to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (1972, 847 UNTS 241) ("the Hague Convention"), issued by the United States District Court for the District of New Jersey.
[2]
Background
The background to this application is set out in the affidavit of Ms Vetrova and can be summarised as follows.
The plaintiff is an Australian company. On or about 2 April 2018, it commenced proceedings in the United States District Court for the District of New Jersey. The defendant in these proceedings, Nanotech Industrial Solutions, is an American based company trading in petroleum activities.
The plaintiff claims they were induced to enter into a distribution agreement relying on misleading representations by the defendants regarding the effectiveness of "Nanolub" products. The defendant denies the plaintiff's allegations and has filed a counterclaim alleging that the plaintiff breached the distribution agreement.
The key allegations appear to be as follows. First, the plaintiff entered into a distribution agreement with the defendant to market and sell engine oil additives and related products manufactured by the defendant in Australia, New Zealand and Papua New Guinea.
Secondly, the defendant made representations to the plaintiff that Nanolub products had the ability to reduce fuel consumption and lower harmful emissions.
Thirdly, after entering into a distribution agreement, the plaintiff engaged Testsafe to complete tests with Nanolub products. In particular, the plaintiff engaged Mr Nathan Pring, senior technical officer of Testsafe Australia, to test the Nanolub products. Mr Pring concluded that the Nanolub products did not decrease fuel consumption and, contrary to the defendants' representations, his evidence was in fact they increased emissions.
Annexed to Ms Vetrova's affidavit were two decisions from Australian courts making orders similar to those sought before me today. On 12 August 2020, the defendant filed an ex parte application with the Supreme Court of New South Wales seeking orders for the examination of two Australian witnesses and that leave be granted to issue subpoenas in those proceedings to produce documents and give evidence. On 3 September 2020, Rothman J made orders in favour of the defendant in the terms sought: Nanotech Industrial Solutions Inc v Nanoteko Pty Ltd [2020] NSWSC 1285.
Further, the defendant also filed an application to the Supreme Court of Victoria seeking leave to be granted to issue a subpoena for deposition evidence and documents to be produced. On 7 April 2021, the Supreme Court of Victoria made orders in favour of the defendant: Re Nanotech Industrial Solutions Inc [2021] VSC 167.
[3]
The application
Mr Bagley in oral submissions addressed one aspect of the present application that differed from those made before Rothman J and the Victorian Supreme Court.
It appears that the Request For Assistance issued out of the District Court for the District of New Jersey in those previous matters specifically sought that in addition to particular witnesses being examined, certain documents be produced. Unlike the Requests For Assistance in those matters, in the Request For Assistance in the present matter, under the heading "Documents Or Other Property to Be Inspected", the word "none" has been included.
The Request For Assistance is ultimately in these terms:
"The Court respectfully requests that the Supreme Court of New South Wales issue any appropriate orders in aid of taking such examination of Nathan Pring and issue and enforce any subpoena or other process which may be necessary or appropriate for the attendance of said witnesses and the taking of such examinations pursuant to the law of Australia and Court rules of the Supreme Court of New South Wales."
Mr Bagley submitted that although it is to be accepted that the request from the United States District Court for the District of New Jersey expressly does not seek production of documents, this Court has the power to do so. It was submitted that that power can be found in the terms of s 33 of the Evidence on Commission Act.
Section 33(1) of the Evidence on Commission Act provides as follows:
(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.
Section 33(3) provides:
(3) Without limiting the generality of subsections (1) and (2), an order under this section may, in particular, make provision as follows: …
(b) for the production of documents …
I drew Mr Bagley's attention to s 33(6) of the Act which provides that an order made under this section is not to require a person to produce documents other than those specified in the order, to which he submitted that that makes the wording more analogous to the confined wording one would expect of a notice to produce rather than a subpoena.
It is to be accepted that Mr Pring is a witness who would be considered an expert witness in proceedings in Australia although clearly, he would not be considered an independent expert witness given that he was engaged by one of the parties to provide expert evidence in order to assess the voracity of the representations made by the defendant. Nonetheless, it seems to me that in order to assist Mr Pring in giving evidence, it would be preferable if he had the documents he used or created in order to prepare his report before him. That would be the usual practice when a witness is giving evidence five years after the fact on evidence of the nature it is anticipated he would be giving in these proceedings.
Despite the fact that it seems to me that it would be generally appropriate to make an order for production, the fact remains that unlike the other similar decisions that have been brought to my attention where the request specifically sought assistance in the issuing of subpoenas to produce, this Request For Assistance does not go that far.
It seems to me that there are time constraints in this matter. The previous request to Rothman J was made two years ago and, as I understand it, the witnesses he was prepared to issue subpoenas to will be examined in late April 2022. The present matter was listed before me on an urgent basis so that Mr Pring could be examined at a time on or around the time that those other New South Wales witnesses are to be examined. That is a discretionary factor that would militate in favour of me making the orders to produce the documents as to do so would be consistent with s 56 of the Civil Procedure Act 2005 (NSW).
However, the fact remains that, perhaps through oversight, the Request For Assistance was not made in the terms now sought and any principle of comity would not directly apply. It seems to me that any prejudice to the plaintiff, if I was to defer making the orders for production until an express request from the District Court for the District of New Jersey was provided to me, could be cured if I was to give the plaintiff leave to relist the matter before me at short notice to make that order once an appropriate Request For Assistance has been provided. That is the course I propose to adopt.
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Consideration
Putting the question of the subpoena to produce to one side, the remaining aspects of the application are more straightforward. The relevant legislative scheme is set out in Part 4 of the Act which governs requests to the Supreme Court for taking evidence for the purpose of foreign, civil or commercial proceedings. Part 4 of the Act enacts the provisions of the Hague Convention as a law of New South Wales. In British American Tobacco (Investments) Ltd v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158 at [42], Spigelman CJ cited observations made by Burnton J in Gredd v Arpad Busson [2003] EWHC 3001 at [27] and considered that his Honour's approach should be adopted in Australia. Burnton J observed as follows:
"Comity requires this court to view a letter of request issued by a foreign court for the purpose of civil proceedings before it benevolently. It is our pleasure and duty to assist those courts and the parties to them in arriving at a fair and just determination of their civil litigation where we can properly do so."
Similar observations have been made in other decisions. That is, letters of request should be given effect to the fullest extent possible.
I turn then to consider the statutory requirements of the Act. Section 33 provides that if an application is made under s 32, this Court may make an order making such provisions for the obtaining of evidence in New South Wales as appears appropriate for the purpose of giving effect to the request. The Court's powers under s 33 include making orders for the examination of witnesses and the production of documents.
I am satisfied that the application is made in pursuance of a request issued by or on behalf of a Court exercising jurisdiction in a place outside New South Wales pursuant to s 32(1)(a) of the Act. I have been provided with a Request For Assistance from the Honourable Cathy Waldor who is a Magistrate Judge in the United States District Court for the District of New Jersey.
I am also satisfied, given annexure A to the affidavit, 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 as required by s 32(1)(b) of the Act. The evidence sought is material which goes to central allegations at the trial, and as Ms Vetrova has set out in her affidavit at [6], the topics for examination of Mr Pring are directed at matters directly in issue at the trial in the US proceedings.
I am further satisfied that the overseas proceedings do not relate to the commission of an offence. Section 32(2) of the Act provides that Part 4 does not apply in relation to proceedings concerning the commission of an offence unless the requesting Court is a Court of a place in Australia or New Zealand.
There are two other restrictions of the orders that can be made under the Act. First, under s 33(4) I must be satisfied that the orders relate to steps that this Court would be able to require in respect of local proceedings. Given that the Request For Assistance contains a list of the areas of enquiry, I am so satisfied.
Secondly, s 33(6)(b) provides that an order must not require a person 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.
I have already indicated that had the request from the New Jersey Court requested that a subpoena be issued for the production of documents, I would have made such an order. Despite this, for the reasons I have already indicated, no such request was ever made. I should add that Mr Bagley quite properly conceded that there was no evidence before this Court as to why the Request For Assistance did not specify a subpoena for the production of documents. Although it is open to infer that that was a matter of oversight, the simple fact remains it was not specifically sought.
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ORDERS
Accordingly, for these reasons, I make the following orders:
1. Leave be granted to the Plaintiff to issue a Subpoena to Attend to Give Evidence addressed to Nathan Pring in the form appearing at Annexure "A" to these orders (Subpoena to Attend to Give Evidence).
2. A sealed copy of these orders be served on Nathan Pring concurrently with service of the Subpoena to Attend to Give Evidence by a date that is 2 weeks after the allocation of an examination date.
3. Mr Jack Hynes of the New South Wales Bar (the "examiner") be appointed as examiner pursuant to r 24.3 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR).
4. Order that the Plaintiff comply with r 24.7 of the UCPR.
5. The examiner conduct the examination at the offices of William James located at Level 11, 2 Bligh Street Sydney on a date to be allocated in 2022 by audio-visual link via "Teams".
6. The examination, oral examination (including cross-examination and re-examination, either in person or by video conference) of Nathan Pring be permitted to be conducted by the US counsel for the parties in Civil Action Number 2:18-CV-05214-SRC-CLW Nanoteko Pty Ltd - Plaintiff v. Nanotech Industrial Solutions Inc, Defendant pending before the District Court for the District of New Jersey in the United States of America (the 'US Proceedings') on the following subject matter:
1. the testing that TestSafe Australia performed for Nanoteko;
2. the report that TestSafe Australia issued concerning that testing;
3. Mr Pring and TestSafe Australia's qualification to perform such testing; and
4. the documents and information regarding the testing that TestSafe Australia undertook.
1. All documents annexed or exhibited to affidavits and any other document as may be produced or filed by the plaintiff during the course of these proceedings and are claimed as confidential be prominently marked "CONFIDENTIAL".
2. The Plaintiff not disclose or allow to be disclosed any such document marked "CONFIDENTIAL" or its contents or substance or any copies or extracts thereof to any other person other than:
1. The examiner;
2. The Plaintiff and its legal representatives;
3. Nathan Pring and his legal representatives; and
4. TestSafe Australia and their legal representatives
1. The matter be re-listed on 30 March 2022 for allocation of a date or dates for the examination.
2. Leave be granted to the plaintiff to have this matter re-listed before the Duty Judge within 24 hours' notice for consideration of an additional letter of assistance regarding the production of documents.
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Decision last updated: 16 March 2022