Re Application of the Attorney General of NSW

Catchwords: EVIDENCE ON COMMISSION – application pursuant to s 32 of the Evidence on Commission Act 1995 (NSW) – where application relates to family law proceedings in overseas Court – orders made

Legislation Cited: Evidence on Commission Act 1995 (NSW) ss 32, 33
Uniform Civil Procedure Rules 2005 (NSW) rr 24.12, 24.9, 24.12, 52.2, 52.4, 52.5

Cases Cited: British American Tobacco (Investments) Limited v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158
In Re Norway’s Application (No 1 and 2) [1990] 1 AC 723
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) [2020] NSWSC 817
Pickles v Gratzon (2002) 55 NSWLR 533 at 546; [2002] NSWSC 688
Re Application of Attorney General of New South Wales [2024] NSWSC 765
Re Westinghouse Electric Corporation Uranium Contract Litigation MDL Docket No 235 (No 1 and No 2) [1978] AC 547
Secretary of the Attorney General’s Department v Evans (2010) 245 FLR 381

Texts Cited: Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters 847 UNTS 231

Category: Principal judgment

Parties: Attorney General of NSW (Plaintiff)

Representation: Counsel:
H Atkin
Solicitors:
Crown Solicitor’s Office (Plaintiff)

File Number(s): 2025/00462158

JUDGMENT – Duty – Ex tempore (revised)

1. By summons filed on 28 November 2025, the Attorney General seeks orders pursuant to s 33 of the Evidence on Commission Act 1995 (NSW) (“the Act”) for the examination of Ms Faten Sallan and Ms Ayse Karaoglu.

2. The application is made in pursuance of a request dated 29 August 2022 by the 15th Family Court of Izmir of the Republic of Turkiye (“the requesting Court”). The request was made in connection with divorce proceedings pending in the requesting Court between Yunus Cinar, as claimant, and Nevim Cinar, as respondent.

3. The Attorney General relies on an affidavit of Sumen Kumareswaran, affirmed on 28 November 2025. Mr Kumareswaran is an employed solicitor at the Crown Solicitor’s Office.

4. Sections 32 and 33 contained in Part 4 of the Act provide as follows:

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.

5. Part 4 of the Act was enacted to implement into the law of New South Wales the provisions of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters 847 UNTS 231 of 1970 (“the Convention”): see British American Tobacco (Investments) Limited v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158 at [16] and [21] (“Eubanks”). I observe that the requesting letter refers to the wrong Hague Convention, but nothing turns on that, and it may, indeed, be a translation error.

6. The Attorney General properly points to five well-established principles to be applied to such an application. They are as follows:

7. Comity requires the 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: see Eubanks at [42] per Spigelman CJ;

8. Letters of request “should be given effect to the fullest extent possible”: see 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 at 546; [2002] NSWSC 688;

9. Statements in a letter of request to the effect that evidence is sought for a use at trial are relevant but not conclusive. The letter of request must be viewed as a whole: see Eubanks at [42];

10. The Court will not in general seek to determine whether evidence sought here will be admissible under the law of the foreign Court: see Eubanks at [42]; and,

11. While the Court may consider the relevance of the evidence requested to the foreign proceedings, 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 in that jurisdiction: see Eubanks at [42].

12. The Court must be satisfied in each of the matters specified in s 32(1)(a) and (b) before the balance of the provisions of Part 4 of the Act can apply. Section 32(1)(b) requires the Court to be satisfied that “the evidence to which the application relates is to be obtained for the purposes of proceedings”. The term “proceeding” is relevantly defined in s 31 to include, “proceedings in any civil or commercial matter”. This mirrors the language used throughout the Convention and also the language in the similar Act in the United Kingdom upon which Part 4 was modelled.

13. In Eubanks, Spigelman CJ noted that this reinforced the: “… general principle that an international treaty of this character should be interpreted wherever possible in an internationally uniform way and that the British case law should generally be followed in Australia”: at [41].

14. A question might arise as to whether or not family law matters are civil in nature. In Secretary of the Attorney General’s Department v Evans (2010) 245 FLR 381, Coates FM stated at 387 that:

“Without a definitive ruling by higher courts, I do accept that family law is necessarily separate from civil law as was submitted, like Canon or military law.”

10. In any event, it appears that a broad meaning of the phrase “civil or commercial” should be entertained (see In Re Norway’s Application (No 1 and 2) [1990] 1 AC 723 at 800). Indeed, in Europe it is accepted that divorce and child custody proceedings are civil proceedings for the purposes of the Convention.

11. Section 32(2) provides that Part 4 does not apply in respect of proceedings relating to the commission of an offence, unless the requesting Court is a Court of a place in Australia or New Zealand. Notwithstanding that certain of the questions proposed by the letter of request might arguably amount to criminal conduct in Australia, the proceedings in the requesting Court are not proceedings relating to the commission of an offence for the purpose of s 32(2).

12. The letter of request appears at annexure A to Mr Kumareswaran’s affidavit under cover of a letter from the Turkish Vice-Consul of 20 April 2023. It is apparent from the letters from the Commonwealth Attorney General’s department of 1 July 2024 that this request has been taken as being made pursuant to the Convention.

13. The nature of the proceedings in the requesting Court is summarised at [5] of the letter of request as follows:

“The parties got married on 7/11/2010. They have no joint children from this marriage. The parties were domiciled in Australia in the beginning of their marriage. According to the claimant’s claim, the common life between the parties ended some time ago due to disagreements and the parties have been living separately since 2015. For this reason, the plaintiff/claimant filed for divorce before our subsidiary Court. Respondent rejected the claims, filed a counterclaim and demanded compensation and alimony.”

14. The proceedings in the requesting Court are proceedings for the purposes of s 32(1)(b). The request states that the respondent asked for the hearing of her witnesses residing in Australia in order to prove her allegations. The request then identifies two individuals, Faten Sallan and Ayse Karaoglu as the persons to be examined before specifying a series of questions to be asked of each of them. It is clear from the nature of those questions that the respondent seeks to establish incidents of mistreatment at the hand of her husband through the evidence requested to be taken from the two named witnesses.

15. Mr Kumareswaran’s affidavit annexes correspondence subsequent to the request by which steps were taken to confirm that the proceedings in the requesting Court remain on foot and that the evidence is still requested to be taken. Most recently, on 24 October 2025 the requesting Court confirmed that the request is still ongoing and that the hearing date would be postponed to 17 February 2026. I note that the request has been taken by the Commonwealth Attorney General’s Department as a request made under the Convention.

16. I am satisfied that each of the criteria in s 32 of the Act is satisfied.

17. By way of the summons, the Attorney General seeks that a registrar of the Court be appointed as examiner to conduct the examinations of the two witnesses. Registrars have delegated power to conduct an examination under rule 24.9 of the Uniform Civil Procedural Rules 2005 (NSW), and to sign any transcript under rule 24.14. There is no reason why the examination in this case ought not to be conducted by a registrar.

18. The summons otherwise seeks procedural orders so as to allow a date for the examinations to be fixed and a subpoena to attend to be served on each of the witnesses. Draft forms of those subpoenas appear as annexures to Mr Kumareswaran’s affidavit.

19. I observe that the orders that are sought are substantially similar to orders made by Wright J in 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) [2020] NSWSC 817 and by Garling J in Re Application of Attorney General of New South Wales [2024] NSWSC 765.

20. In all of the circumstances, I make the orders as sought by the Attorney General in the short minutes of order which have been provided to me as follows:

21. Order pursuant to s 33(3)(a) of the Evidence on Commission Act 1995 (NSW) that:

(a) an examination of Ms Faten Sallan (Ms Sallan) of Five Dock NSW 2046 be conducted before 17 February 2026; (b) a registrar of this Court be appointed as examiner to conduct the examination; (c) the plaintiff is to serve upon Ms Sallan copies of this summons, the supporting affidavit of Sumen Kumareswaran affirmed on 28 November 2025 (the Kumareswaran Affidavit), and the orders made by the Court in respect of this summons; (d) after a registrar of this Court appoints a day for the conduct of the examination, the plaintiff is to serve upon Ms Sallan a Subpoena to Attend to Give Evidence addressed to Ms Sallan in the form of Annexure J to the Kumareswaran Affidavit.

2. Order pursuant to s 33(3)(a) of the Evidence on Commission Act 1995 (NSW) that:

(a) an examination of Ms Ayse Karaoglu (Ms Karaoglu) of Northmead NSW 2152 be conducted before 17 February 2026; (b) a registrar of this Court be appointed as examiner to conduct the examination; (c) the plaintiff is to serve upon Ms Karaoglu copies of this summons, the Kumareswaran Affidavit, and the orders made by the Court in respect of this summons; (d) after a registrar of this Court appoints a day for the conduct of the examination, the Plaintiff is to serve upon Ms Karaoglu a Subpoena to Attend to Give Evidence addressed to Ms Karaoglu in the form of Annexure K to the Kumareswaran Affidavit.

3. The plaintiff is granted leave to approach the Registrar to appoint a date and place for the examination of Ms Sallan.
4. The plaintiff is granted leave to approach the Registrar to appoint a date and place for the examination of Ms Karaoglu.
5. Order that, following the completion of the examination of Ms Sallan:

(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 transcripts, any document constituting a recording of the examinations, 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 is to 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.

6. Order that, following the completion of the examination of Ms Karaoglu:

(a) a record of the examination be taken by the Court in accordance with rr 24.12 and 52.2 of 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 transcripts, any document constituting a recording of the examinations, 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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Amendments

16 December 2025

Correction of typographical error in cover sheet.