Evidence on Commission Act 1995

The Act’s primary subjects are the superior courts of New South Wales (Supreme Court, Land and Environment Court, Industrial Relations Commission in Court Session, Dust Diseases Tribunal and District Court when not exercising federal jurisdiction) and, through them, inferior courts. Parties to any civil, commercial or criminal proceeding before those courts are entitled to invoke the machinery in Parts 2 and 3 if they can demonstrate that a material witness is overseas or interstate. The witness themselves is directly affected: they may be compelled to submit to examination on oath, to answer questions, or to produce documents, subject only to the privileges preserved by s 34 and the general law.

In the inbound direction (Part 4), any person within New South Wales who is served with an order under s 33 is affected. That person may be required to attend for examination, to bring specific documents, to permit inspection of land or chattels, or to submit to a medical procedure. The requesting court or tribunal (foreign, interstate or New Zealand) is an indirect beneficiary; the statute gives the Supreme Court power to give effect to its request provided the statutory preconditions are met.

Legal practitioners representing the parties are given explicit rights of participation in examinations conducted pursuant to a letter of request (ss 7(2)(b), 21(2)(b)). Finally, the rule-making and regulatory authorities (the Governor, the courts themselves) are empowered to prescribe forms, fees and detailed practice notes. Because the definitions in s 4 and s 18 exclude federal jurisdiction, the Act does not disturb the operation of the Foreign Evidence Act 1994 (Cth) or the Evidence Act 1995 (Cth) in federal matters, thereby carving out a distinct sphere of operation for State-only proceedings.

The statute creates few absolute duties but many conditional ones. A superior court that is satisfied the interests-of-justice test in s 6(2) or s 20(2) is met has discretion, not obligation, to make an order. Once the order is made, the recipient of a letter of request issued by a NSW court has no direct duty under this Act; compliance depends on the foreign judicial authority. Conversely, a person served with a s 33 order made at the request of an external court is under a clear duty to comply, subject to any successful claim of privilege under s 34.

Rights are more prominent. A party seeking to tender foreign evidence enjoys the right to apply under ss 8, 10, 12, 22, 24 or 26, but is met by the countervailing right of the opponent to object on the two statutory inadmissibility grounds. The witness outside the jurisdiction has the right to conduct money and expenses equivalent to those of a local witness when the examination occurs inside New South Wales pursuant to an inbound request (s 33(7)). Every person required to give evidence under Part 4 retains the full suite of privileges that would be available in either the requesting jurisdiction or New South Wales (s 34(1)), and the mechanism in s 34(3) allows the Supreme Court to transmit the evidence conditionally so that the requesting court can rule on any disputed privilege claim.

Parties also have the right to seek variation or revocation of any order (s 13, s 27), including the addition or removal of a direction under s 11 or s 25 that the evidence be available in subsequent or related proceedings. The right to have the application heard in chambers (ss 14, 28) protects commercial confidentiality or sensitive criminal-intelligence matters. Finally, the Act preserves all existing rights under other statutes or rules (ss 15, 29, 35), ensuring that parties are not deprived of more generous common-law or statutory avenues for obtaining evidence on commission.

The Act itself contains no offence-creating provisions or monetary penalties. Enforcement is therefore indirect and occurs through the inherent or statutory contempt powers of the courts. A person who, having been properly served with an order under s 33, refuses to attend, to answer lawful questions, or to produce specified documents may be dealt with by the Supreme Court as though the non-compliance had occurred in proceedings before that Court. Because s 33(4) limits orders to steps that could be required in local Supreme Court proceedings, the usual sanctions for disobedience of a subpoena or notice to produce apply by analogy.

For outbound examinations, enforcement against the witness is a matter for the foreign judicial authority or the commissioner appointed under s 6(1)(a) or (b). The NSW court’s leverage is limited to refusing to admit the evidence under s 8(2) or s 12(3) if the process has been tainted, or, in extreme cases, staying the proceeding for abuse of process. The absence of explicit penalties is deliberate; the statute is facilitative rather than punitive. Costs sanctions remain available: a party who unsuccessfully opposes an order, or who later seeks to tender evidence that falls foul of the admissibility filters, may be ordered to pay the opponent’s costs thrown away. In the regulatory sphere, rules made under ss 16, 30 or 36 can prescribe practice directions whose breach may sound in costs or, in rare cases, professional discipline of legal practitioners.

Section 3 imports all definitions from the Evidence Act 1995 (NSW), so that terms such as “document”, “oath” and “affirmation” carry the same meaning. The admissibility filters in ss 8, 10, 12, 22, 24 and 26 expressly cross-reference the Evidence Act’s relevance and hearsay rules; evidence taken on commission that would be inadmissible under ss 55–57 or Chapter 3 of the Evidence Act is excluded.

The Confiscation of Proceeds of Crime Act 1989 is elevated to the status of a “related civil proceeding” (ss 11(3)(a), 25(3)(a)), allowing evidence taken in a criminal matter to be deployed in asset-forfeiture litigation without fresh application. The Supreme Court Act 1970 supplies the rule-making power that is expanded by ss 16, 30 and 36. Part 4 sits alongside the Trans-Tasman Proceedings Act 2010 (Cth) and the Foreign Evidence Act 1994 (Cth); s 32(2) expressly permits New Zealand criminal requests while excluding other foreign criminal requests, thereby carving out a statutory pocket that complements but does not overlap federal mutual-assistance legislation.

The Act is expressly non-exclusive (ss 15, 29, 35). Parties may still rely on common-law commissions, letters rogatory issued under the court’s inherent jurisdiction, or the Hague Evidence Convention where Australia has entered appropriate reservations. The Dust Diseases Tribunal, Industrial Relations Commission and Land and Environment Court are each listed as superior courts (ss 4, 18), so their enabling statutes are implicitly amended to the extent necessary to accommodate the procedures in this Act. Finally, the regulation-making power in s 37 and the rules of court provisions ensure that detailed practice can be aligned with the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 without textual collision.

The amendment history recited at the foot of ss 4, 18 and 37 records a series of adjustments rather than substantive policy shifts. The 1996 amendment (No 121) updated the list of superior courts to reflect contemporaneous tribunal reforms. The 2001–2002 amendments (Nos 108, 23, 53) repealed references to courts that had been abolished or merged and inserted the Dust Diseases Tribunal. The 2009 amendment (No 56) modernised the language of “Australian legal practitioner” to accord with national legal profession reforms. The 2016 and 2023 amendments (Nos 48 and 41) again tidied the superior-court schedule, removing spent references and ensuring consistency across the statute book.

These changes were housekeeping measures required because the original 1995 Act had been drafted against a particular court hierarchy that was later rationalised. The core discretionary tests in ss 6(2) and 20(2), the admissibility safeguards, and the Part 4 inbound regime have remained untouched since commencement. The repeated updating of the superior-court definition demonstrates that the legislature treats the Act as a living piece of machinery that must move with institutional reform, but does not require periodic re-examination of the underlying policy that evidence should be available across borders when the interests of justice so require.

The printed text of the Act does not record any specific judicial decisions. However, the structure of the legislation itself reveals points of potential contention that have occupied courts in analogous contexts. The repeated “interests of justice” test in ss 6(2), 20(2) and the parallel admissibility gates in ss 8(2) and 12(3) require a court to make predictive findings about a witness’s willingness or ability to travel and about the materiality of evidence not yet given. Such predictive exercises can generate satellite litigation about the sufficiency of affidavit material and the weight to be given to a witness’s stated unwillingness to travel.

The privilege mechanism in s 34 has the potential to produce circularity: the Supreme Court may order evidence to be taken, the witness may claim privilege, the evidence may be transmitted, and the requesting court may then uphold the claim, resulting in the evidence being returned unused. The statutory language in s 34(3) attempts to manage this by requiring the Supreme Court to withhold transmission only after the requesting court has ruled, but the practical logistics of that referral are left to rules of court.

Another latent controversy lies in the boundary between civil and criminal matters. Section 32(2) excludes most foreign criminal requests, yet s 11 and s 25 permit evidence taken in a criminal committal to be used in related civil confiscation proceedings. The precise characterisation of such hybrid litigation has generated debate in analogous federal legislation. Because the Act ties the definition of “superior court” to non-federal jurisdiction, demarcation disputes can arise when a matter involves both State and federal elements.

The power to order medical examinations or blood tests under s 33(3)(e)–(f) engages bodily integrity. Although the statute limits such orders to steps that could be ordered in local Supreme Court proceedings, the absence of an explicit consent requirement or a least-intrusive-means test has been a source of academic and practitioner concern in the literature surrounding mutual legal assistance.

Finally, the near-verbatim replication of Part 2 in Part 3, with only the geographic qualifier changed, can create interpretive disputes about whether a particular ruling under one Part automatically translates to the other. Courts have therefore had to develop a practice of reading the two Parts in pari materia while remaining alert to the constitutional limits on State power over interstate service and compulsion.

Most practitioners assume that once a letter of request has been issued and the foreign court has taken evidence, admission in New South Wales is a formality. Section 8(2)(a) and its analogues trap the unwary: even if the witness was on the other side of the world when examined, if they have since returned to New South Wales and are able to attend the hearing, the commission evidence is inadmissible unless the court exercises a residual discretion outside the statute. The onus is on the tendering party to prove the negative—that the witness is not in the State or is unable to attend—and that proof must satisfy the court “at the hearing of the proceeding”.

Another trap lies in the interplay between s 33(6) and the prohibition on fishing expeditions. An order cannot require a person to disclose what documents are or have been in their possession; only particular documents identified in the order may be sought. Requests drafted in the foreign jurisdiction frequently fail this specificity test, resulting in the Supreme Court declining to make any order at all. The requesting party then faces the delay and cost of a fresh, narrowly tailored application.

The “related civil proceeding” definition in ss 11(3) and 25(3) is broader than many realise. It is not limited to the two examples given; any civil claim arising from the same subject matter qualifies. Conversely, the direction under s 11 or s 25 must be obtained at the time the original order is made or varied under s 13 or s 27; a later application to use the evidence in a subsequent proceeding that was not so designated will fail.

Finally, many lawyers overlook that the Act does not abrogate the privilege against self-incrimination except to the extent that the requesting court or the local law would permit. In inbound criminal-assistance matters from New Zealand, a witness can still refuse to answer if the response would tend to incriminate them under New South Wales law, and the statute provides a detailed referral mechanism that can result in the evidence never leaving the jurisdiction. Compliance programs that treat foreign evidence orders as equivalent to domestic subpoenas therefore expose clients to contempt applications that could have been avoided by timely privilege claims.

Compliance begins with a forensic decision whether to seek an order at all. Counsel should prepare evidence addressing each of the three mandatory considerations in s 6(2) or s 20(2): an affidavit from the solicitor detailing unsuccessful attempts to secure the witness’s voluntary attendance, an outline of the anticipated evidence and its materiality to pleaded issues, and a cost-benefit analysis comparing the expense of foreign examination against the prejudice of proceeding without it.

If an order is granted, the practitioner responsible for the letter of request must draft it with precision. The request should specify the exact matters on which examination, cross-examination and re-examination are sought (s 7(2)(a)), the rules of evidence to be applied, and whether Australian legal practitioners may participate. Copies of the pleadings and any relevant affidavits should accompany the request so the foreign authority understands the context.

For inbound requests under Part 4, the first step is to confirm that the application satisfies s 32(1)(a)–(b) and, for criminal matters, that the requesting court is Australian or New Zealand. The draft order should list only particular documents (never categories) and should expressly recite that the steps ordered could be ordered in local Supreme Court proceedings. Any anticipated privilege issues should be flagged at the first directions hearing so that the s 34 mechanism can be activated promptly.

Once evidence has been received, whether outbound or inbound, the tendering party must be ready to negative the two admissibility bars at the moment of tender. This usually requires a further affidavit from the witness’s solicitor confirming that the witness remains outside the jurisdiction or is medically or financially unable to attend. Because the test is applied “at the hearing of the proceeding”, last-minute changes in the witness’s travel plans can render previously admissible evidence suddenly inadmissible; practitioners should maintain a watching brief on the witness’s movements until the evidence is formally received into court.

Organisations that regularly deal with cross-border disputes should maintain precedents of successful letters of request, a checklist of the interests-of-justice factors, and a privilege protocol for inbound requests. In-house counsel should ensure that any overseas subsidiary or related entity understands that a NSW commission order may ultimately reach them through foreign judicial machinery and that early engagement with local foreign counsel can reduce cost and delay. Finally, all practitioners should monitor amendments to the superior-court schedule and any new regulations made under s 37, because a change in institutional status can alter which court must hear the application and which rules of court govern the procedure. By treating the Act as a detailed checklist rather than a general permission to obtain foreign evidence, compliance professionals minimise the risk that hard-won commission material will be excluded at the critical moment of trial.