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File Number(s): 2026/00056235

JUDGMENT

1. By Summons filed on 9 February 2026, the Attorney General of New South Wales seeks an order under s 33 of the Evidence on Commission Act 1995 (NSW) (the Act) that Ms Nemat Hejazi be examined by a Registrar of this Court. He makes this application at the request of the 14th Family Court of Izmir (the Requesting Court) in the Republic of Turkiye.

2. The matter came before me as Common Law Duty Judge. Ms Rebecca Dunkel, an employed solicitor of the Crown Solicitor, appeared for the Attorney General. In support of his application, Ms Dunkel read an affidavit affirmed by her on 9 February 2026. She also provided the Court with helpful written submissions.

Background

3. Ms Hejazi is the claimant in divorce proceedings against Mr Tansel Çiçekdağ pending in the Requesting Court. She resides in New South Wales, while Mr Çiçekdağ apparently lives in Queensland.

4. On 1 September 2023, the Requesting Court issued a letter of request to the competent authority in Australia seeking that Ms Hejazi be examined on oath or affirmation about her financial circumstances, living arrangements, employment, and educational background, for the purpose of assisting its determination of the case before it. It issued this request pursuant to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 847 UNTS 231 (the Convention). Under cover of a letter dated 21 November 2023, the Turkish Vice Consul at Sydney forwarded that request to the Commonwealth Attorney-General’s Department. That request was then forwarded to the Attorney General of New South Wales by email dated 26 February 2025.

5. On 14 March 2025, the Department of Communities and Justice replied by letter to the Private International Law Section of the Commonwealth Attorney-General’s Department concerning the request. The author stated that the request was insufficient to enable the Attorney General to make an application under the Act because it was unclear whether the evidence was to be taken for the purpose of the proceedings in the Requesting Court. The author requested the following further information:

“1. The names and addresses of the parties to the proceedings and their legal representatives.

2. It is noted that the questions to be asked relates to Ms Nemet [sic] Hejazi’s socioeconomic situation in order to assess the claim. However, no details about the ‘clam’ [sic] have been provided. In the circumstances, information about the nature of the proceedings including how the request, if fulfilled, would assist the requesting court in resolving the proceedings is required.

3. Confirmation that there are currently proceedings before the requesting court (or alternatively, the institution of proceedings in the requesting court is being contemplated).

4. If the answer to item (3) above is yes, the current status of the proceedings before the requesting court.”

6. In subsequent undated correspondence, the Requesting Court wrote to the Turkish Consulate General at Sydney and indicated that the proceedings before that Court concerned “divorce, alimony, compensation, and the request for the return of the jewels”. It also made a supplementary request that Mr Çiçekdağ be examined with respect to the claims for alimony and compensation. I note that Mr Çiçekdağ is not the subject of this application.

Principles

7. Part 4 of the Act implements the provisions of the Convention in the domestic law of this State: British American Tobacco Australia Services Ltd v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158 at 493 [16] (Spigelman CJ, Handley and Bryson JJA agreeing). Sections 31–33 of the Act provide as follows:

31 Definitions

In this Part—

Australian court means a person or body authorised to exercise an adjudicative function—

(a) whether on behalf of a court or otherwise, and

(b) whether or not the person or body is empowered to require the answering of questions or the production of documents.

proceedings means—

(a) proceedings in any civil or commercial matter, or

(b) proceedings in or before a court in relation to the commission of an offence or an alleged offence.

property includes any land, chattel or other corporeal property of any description.

request includes any commission, order or other process issued by or on behalf of a requesting court.

requesting court means a court or tribunal by or on whose behalf a request is issued, as referred to in section 32.

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.

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.

8. On an application under s 33, no person need be joined as a defendant, such that the application may proceed regularly ex parte: Uniform Civil Procedure Rules 2005 (NSW) r 52.1(2); Attorney General of NSW in the matter of a request for assistance from the First San Sebastian Commercial Court of the Kingdom of Spain [2026] NSWSC 581 at [7]–[8] (Hamill J).

9. Having regard to the terms of s 32 of the Act, there are three prerequisites to the Court’s making an order under s 33 in this case: Application by the Attorney-General in and for the State of New South Wales under the Evidence on Commission Act 1995 [2016] NSWSC 1086 at [5]–[7] (N Adams J, as her Honour then was). They are that:

10. the application before the Court is made pursuant to a request issued by a court exercising jurisdiction in a place outside New South Wales;

11. the evidence to which the application relates is to be obtained for the purposes of proceedings which have been instituted before the requesting court; and

12. the overseas proceedings do not relate to the commission of an offence.

13. The principles which inform the exercise of the Court’s discretion to make such an order were recently summarised by Muston J in Re Application of the Attorney General of NSW [2026] NSWSC 189 at [6], which I gratefully adopt:

“1. ‘Comity requires this Court to view a letter of request issued by a foreign court for the purposes of civil proceedings 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’: Eubanks at [42], Spigelman CJ (with whom Handley and Bryson JJA agreed) approving the summary of principles of Burnton J in Gredd v Arpad Busson [2003] EWHC 3001 at [27(1)];

2. Accordingly, letters of request ‘should be given effect to the fullest extent possible’: Re Westinghouse Electric Corporation Uranium Contract Litigation MDL Docket No 235 (No 1 and No 2) [1978] AC 547 at 612 per Lord Keith of Kinkel, applied by O’Keefe J in Pickles v Gratzon (2002) 55 NSWLR 533; [2002] NSWSC 688 at [50];

3. ‘Statements in a letter of request to the effect that evidence is sought for use at trial are relevant but not conclusive. The letter of request must be viewed as a whole’: Arpad Busson at [27(6)], approved in Eubanks at [42];

4. The Court will not, in general, seek to determine whether evidence sought here will be admissible under the law of the foreign court: Arpad Busson at [27(12)] approved in Eubanks at [42]; and

5. While the Court may consider the relevance of the evidence requested to the foreign proceedings if raised, it should leave ‘to the foreign court, in all but the clearest cases, the decision as to whether particular answers, or answers on particular topics would constitute relevant admissible evidence’: Arpad Busson at [27(12)], approved in Eubanks at [42].”

Determination

11. I am satisfied that the Court’s discretion to make an order under s 33 is enlivened.

12. First, the application is made pursuant to a request issued by a court exercising jurisdiction in a place outside New South Wales, namely, the Republic of Turkiye.

13. Secondly, proceedings have been instituted in the Requesting Court. “Proceedings” relevantly include proceedings “in any civil or commercial matter”: s 31 of the Act. The proceedings concern divorce and property settlement, and thereby meet this description. I consider that the evidence sought to be obtained from Ms Hejazi is for the purposes of those proceedings. I reach that conclusion based on the terms of the request as well as the inferences I draw from the nature of the claim before the Requesting Court. In matrimonial proceedings where property settlement and spousal maintenance are in question, it is commonplace that evidence of the parties’ social and financial circumstances is adduced. The evidence sought from Ms Hejazi is of a kind that one would expect in such a case.

14. Thirdly, the proceedings do not relate to the commission of an offence.

15. Because the Court’s discretion to make an order under the Act has been enlivened, it is this Court’s pleasure and duty to do so where it properly can. Ms Dunkel furnished the Court with a draft subpoena and short minutes of order to give effect to the request. Having reviewed them, I am satisfied that the Court should make the orders sought and can do so consistent with the powers and limitations prescribed by s 33 of the Act.

Orders

16. The Court accordingly orders:

17. Pursuant to s 33 of the Evidence on Commission Act 1995 (NSW), the examination of the following witness:

(a) Nemat Hejazi, of XXX XXX, Parramatta NSW 2150

be conducted on or before a date or dates to be fixed by a Registrar of this Court (the examination date).

2. That a Registrar of this Court be appointed as examiner to conduct the examination.
3. That the Plaintiff be granted leave to approach the Registrar to appoint dates and places for the examination of the witness.
4. That, after the Registrar appoints the examination date, the Plaintiff serve the subpoena to attend to give evidence addressed to the witness compelling attendance at the examination in the form annexed and marked “D” to the affidavit of Rebecca Dunkel affirmed 9 February 2026.
5. That at the time of service of the subpoena issued pursuant to Order 4 above, the Plaintiff serve the witness with copies of:

(a) the Summons filed on 9 February 2026; (b) the supporting affidavit of Rebecca Dunkel affirmed 9 February 2026; and (c) the order of the Court made in these proceedings.

6. That, following the completion of the examination of the witness:

(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) (the UCPR); (b) the transcript of the examination be prepared and certified in accordance with rr 24.14(1) and (3) and 52.2 of the UCPR; (c) the certified transcript, 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; and (d) the 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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