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Catchwords: EVIDENCE – Evidence on commission – application pursuant to s 32 of the Evidence on Commission Act 1995 (NSW) – request from the Seventh Civil Court of General Justice of Yalova of the Republic of Türkiye for examination of witnesses

Legislation Cited: Evidence on Commission Act 1995 (NSW)
Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK)
Foreign Tribunals Evidence Act 1856 (UK)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: British American Tobacco (Investments) Ltd v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158
Gredd v Arpad Busson [2003] EWHC 3001
Pickles v Gratzon (2002) 55 NSWLR 533; [2002] NSWSC 688
Re Norway’s Application (Nos 1 & 2) [1990] 1 AC 723
Re Westinghouse Electric Corporation Uranium Contract Litigation MDL Docket No 235 (No 1 and No 2) [1978] AC 547

Texts Cited: Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters
Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters

Category: Principal judgment

Parties: Attorney General of NSW (Plaintiff)

Representation: Counsel:
Mr H Atkin
Solicitors:
Crown Solicitor’s Office

File Number(s): 2025/00499044-1

JUDGMENT – EX TEMPORE (ReVised from transcript)

1. By summons filed on 23 December 2025, the Attorney General applies for orders under s 33 of the Evidence on Commission Act 1995 (NSW) for the examination of Ms Sumru Kiratli.

2. The application is made in response to a request from the Seventh Civil Court of General Justice of Yalova of the Republic of Türkiye dated 24 November 2024. The request was made in connection with succession proceedings, pending in the requesting Court, between Demit Taskin and Serpil Deniz Yazgan as plaintiffs, and Beyhan Kiratli and Mustafa Saffei Kiratli as defendants.

3. In support of his application, the Attorney General read an affidavit of Darcy Munce, affirmed on 23 December 2025.

4. Central to this application are ss 32 and 33 of the Act, which relevantly provide:

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. As was noted by Spigelman CJ in British American Tobacco Investments Ltd v Eubanks (2004), 60 NSWLR 483 at [16]‑[21], Part 4 of the Act (in which ss 32 and 33 are found) was enacted to implement, as part of the domestic law of New South Wales, the provisions of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters of 1970.

6. The principles relevant to applications made under Part 4 are well established and have been summarised in submissions prepared by Mr Atkin, who appeared for the Attorney General:

(a) “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)]; (b) 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]; (c) “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]; (d) 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 (e) 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].

7. The Court must be satisfied of each of the matters specified in s 32(1)(a) and (b) before the remaining provisions of Part 4 can apply.

8. Section 32(1)(b) requires the Court to be satisfied that 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”. That mirrors the language used throughout the Convention and the language in s 9(1) of the Evidence *(*Proceedings in Other Jurisdictions) Act 1975 (UK) (the UK Act) on which Part 4 was modelled: Eubanks at [41]. 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”, stating that “the British case law should generally be followed in Australia”.

9. The House of Lords has endorsed a broad meaning of the phrase “civil or commercial” in the UK Act as “conferring a very broad jurisdiction upon the courts in the United Kingdom to enable them to provide assistance for courts in other jurisdictions by obtaining evidence for them”: R**e Norway’s Application *(*Nos 1 & 2) [1990] 1 AC 723 at 800. Lord Goff of Chieveley (with whom the other Law Lords agreed) accepted (at 799-802) that the phrase bore the same meaning which it had borne in s 1 of the Foreign Tribunals Evidence Act 1856 (19 & 20 Vict. C. 113), of which it was said (at 797):

“[I]n section 1 of the Act, the expression “civil matter” is being given no restricted meaning, and would be understood in this country as referring to civil, as opposed to criminal, proceedings. It is true that this gives no weight to the words “or commercial” so far as the law of this country is concerned: but it is not surprising to find words added in relation to a jurisdiction which will be invoked by courts or tribunals in foreign countries, many of which differentiate between civil and commercial matters.”

10. The letter of request was provided under cover of a letter from the Turkish Vice‑Consul dated 6 May 2025. On its face, it purports to have been made in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965. As Mr Atkin has observed, this is a different international convention to that which is embodied by the Act. I am, however, satisfied that nothing turns on this fact.

11. As is made clear by a letter of 21 July 2025 from the Commonwealth Attorney General's Department to the relevant body in New South Wales (under the cover of which the letter request was forwarded), the request has been treated by the Commonwealth Attorney General's Department as a request made under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970. Evidently, the Attorney General of New South Wales has approached the letter of request in the same manner, as have I.

12. Under s 32 of the Act, there are two matters about which I must be satisfied in order to make the orders sought:

13. That the application is made pursuant to a request issued by or on behalf of a Court or tribunal exercising jurisdiction in a place outside of New South Wales; and

14. That the evidence to which the application relates is to be obtained for the purpose of proceedings which either have been instituted before the requesting Court or whose institution before that Court is contemplated.

15. I will deal briefly with each of these issues.

16. I am satisfied that the Seventh Civil Court of General Justice of Yalova of the Republic of Türkiye has made a request and that that Court is exercising jurisdiction in a place outside of New South Wales. I am satisfied of this based on the form and content of the request and inferences that I have drawn from it.

17. The nature of the proceedings which are underway in the requesting Court are summarised at [5] of the letter of request as follows:

“This is a lawsuit between the parties regarding the annulment of the will or the enforcement of the inheritance in terms of reserved shares, title deed cancellation and registration. Refika Tiner, the deceased of the parties, is the paternal grandmother of the plaintiffs and the defendant Mustfa Saffet Kiratli. The defendant Beyhan Kiratli is the wife of the defendant Mustafa Saffet Kirtali. In her will, the deceased declared that she left all her movable and immovable properties registered in her name, her money in the bank, and all her property including all household goods to her husband Ibrahim Nihat tiner after her death, and to her grandson Mustafa Saffet KIRATLI after the death of her husband. [The] Spouse of the deceased died before her. Yavuz Kiratli, the only descendant of the deceased who is the root heir of the deceased, also died before the deceased. Yavus Kiratli is the father of the plaintiffs Demet Tasgin [sic], Serpil Deniz Yazgan and Mustafa Saffet Kiratli. It is alleged that the deceased sold his [sic] immovable property in Ankara Cankaya… to Beyhan Kiratli the wife of the defendant Mustafa Saffet Kiratli in order to evade inheritance. The plaintiffs claimed that they have a reserved share in the inheritance and therefore the sale should be canceled [sic]. The lawsuit has been filed requesting that the will should be annulled, and if it is not annulled, the collusive sale should be annulled and the heirs should be divided in proportion to their shares, and if the will cannot be annulled, the plaintiffs should be compensated for their reserved shares on the relevant immovable property. Witness Sumru Kiratli’s statement should be obtained by asking the questions specified in section 9 below."

16. I am satisfied that the proceedings in the requesting Court are proceedings in a civil matter and are not criminal proceedings. The request sets out a number of questions to be asked of the witness at [9]. Those questions, on their face, would appear to be directed to circumstances in which a will was executed and property was transferred.

17. I am satisfied that this evidence is being sought for the purposes of the proceedings pending in the requesting Court, and that those proceedings remain on foot. In that respect, I note that as recently as 24 October 2025 a communication was received from the Turkish Consulate in Sydney which indicated that the evidence sought to be obtained through this application is required by the requesting Court on or before 14 April 2026.

18. In light of the above, I am satisfied that each of the criteria provided for in s 32 of the Act is satisfied.

19. Turning to the orders sought, Part 52 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) addresses applications for orders under s 33 of the Act. Rule 52.2 provides that:

52.2 Application of other rules regarding the taking of evidence

Subject to this Part, rules 24.7- 24.16 apply to an examination held pursuant to an order under this Part--

(a) as if the matter pending before the requesting court were proceedings in the Supreme Court, and

(b) as if the order had been made under rule 24.3 in proceedings in the Supreme Court, and

(c) if a Judge, associate Judge or registrar is appointed under section 33 of the Evidence on Commission Act 1995, as if an order had been made under rule 24.3 for the examination of a person on oath before a Judge, associate Judge or registrar.

20. The Attorney General has sought that a Registrar of the Court be appointed as examiner to conduct the examination. Registrars have delegated power to conduct an examination under r 24.9 of the UCPR and to sign and certify any transcript under r 24.14. I am satisfied that it is appropriate in this case for the examination to be conducted by a Registrar.

21. For the above reasons, I make the following orders:

22. Pursuant to s 33(3)(a) of the Evidence on Commission Act 1995 (NSW):

(a) An examination of Ms Sumru Kiratli ("Ms Kiratli") of XXX be conducted; (b) A registrar of this Court be appointed as examiner to conduct the examination; (c) The plaintiff is to serve upon Ms Kiratli copies of this summons, the supporting affidavit of Darcy Munce affirmed 23 December 2025 (the Munce 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 Kiratli a Subpoena to Attend to Give Evidence addressed to Ms Kiratli in the form of Annexure F to the Munce Affidavit.

2. The plaintiff is granted leave to approach the Registrar to appoint a date and place for the examination of Ms Kiratli.
3. Following the completion of the examination of Ms Kiratli:

(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 be prepared and certified in accordance with rr 24.14(1) and (3) and 52.2 of the UCPR; (c) The certified transcripts, any documents 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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