This Act gives State superior (and, in certain cases, inferior) courts discretionary powers to obtain evidence located outside the State or Australia, and to assist foreign or non‑State courts seeking evidence here. It affects parties, witnesses and foreign authorities by enabling commissions, letters of request or local orders while preserving admissibility, privilege protections, and judicial control over procedure, costs and scope to ensure proceedings remain fair.
The Evidence on Commission Act 1995 establishes a statutory mechanism to overcome the practical and legal difficulties that arise when a witness or piece of evidence relevant to proceedings in New South Wales lies beyond the territorial reach of the local court. Part 2 addresses evidence located outside Australia. Division 2 (ss 6–8) empowers a superior court, on the application of any party and if it appears to be in the interests of justice, to make one of three types of order under s 6(1): (a) direct examination of the person on oath or affirmation before a judge, court officer or appointed person at a nominated foreign place; (b) issue of a commission to some other qualified person to conduct that examination; or (c) issue of a letter of request to the judicial authorities of the foreign country asking them to take the evidence or cause it to be taken.
Section 6(2) lists three mandatory considerations the court must weigh: whether the witness is willing or able to travel to New South Wales, whether the evidence is material to an issue in the proceeding, and whether the interests of the parties are better served by making or refusing the order. Once an order is made, s 7 authorises the court to give detailed procedural directions (time, place, manner, participation of legal practitioners) and, in the case of a letter of request, to stipulate the mode of examination, cross-examination or re-examination.
Section 8 then regulates the use of the material so obtained. The superior court may permit a party to tender the transcript or a record of the examination, but the evidence is inadmissible if the witness is in fact in New South Wales and able to attend, or if it would not have been admissible had it been given live. Parallel provisions in Division 3 (ss 9–10) allow a superior court to make the same orders for proceedings pending in an inferior court.
Current sections
Direct links to the current provisions in Evidence on Commission Act 1995.
This Act commences on a day or days to be appointed by proclamation.
3
Definitions
3 Definitions
3 Definitions
Expressions used in this Act that are defined in the Evidence Act 1995 have the meanings set out in that Act.
Part 2
Examination of witnesses abroad
Part 2 Examination of witnesses abroad
Part 2 Examination of witnesses abroad
Division 1
Preliminary
Division 1 Preliminary
Division 1 Preliminary
4
Definitions
4 Definitions
4 Definitions
In this Part—
examination includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by a court under this Part.
inferior court means a court of the State (other than a superior court) except when exercising federal jurisdiction.
superior court means—
(a) the Supreme Court, and
(b) the Land and Environment Court, and
(c) the Industrial Relations Commission in Court Session, and
(d) (Repealed)
(e) the Dust Diseases Tribunal of New South Wales, and
(f) the District Court,
except when exercising federal jurisdiction.
s 4: Am 1996 No 121, Sch 4.21 [1]; 2001 No 108, Sch 2; 2002 No 23, Sch 1.2 [1]; 2016 No 48, Sch 2.18 [1]; 2023 No 41, Sch 2.17[1].
5
References to evidence taken in an examination
5 References to evidence taken in an examination
5 References to evidence taken in an examination
A reference in this Part to evidence taken in an examination includes a reference to—
(a) a document produced at the examination, and
(b) answers made to any written interrogatories presented at the examination, whether the answers are made in writing or are made orally and put in writing.
Division 2
Proceedings in superior courts
Division 2 Proceedings in superior courts
Division 2 Proceedings in superior courts
6
Orders for taking evidence abroad
6 Orders for taking evidence abroad
6 Orders for taking evidence abroad
(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order relating to a person outside Australia—
(a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint, or
(b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia, or
(c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person or cause it to be taken.
(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the superior court is to have regard include the following—
(a) whether the person is willing or able to come to the State to give evidence in the proceeding,
(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding,
(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by making or refusing to make the order.
7
Directions and requests relating to orders
7 Directions and requests relating to orders
7 Directions and requests relating to orders
(1) If a superior court makes an order of the kind referred to in section 6 (1) (a) or (b), the court may, at the time of making the order or at a later time, give such directions as it thinks just relating to the procedure to be followed in relation to the examination, including directions about—
(a) the time, place and manner of the examination, and
(b) any other matter that the court thinks relevant.
(2) If a superior court makes an order of the kind referred to in section 6 (1) (c), the court may include in the order a request about any matter relating to taking that evidence, including any of the following matters—
(a) examination, cross-examination or re-examination of the person, whether the person’s evidence is given orally, on affidavit or otherwise,
(b) attendance of the Australian legal practitioner representing each party to the proceeding in question and participation of those persons in the examination in appropriate circumstances,
(c) any matter prescribed by the regulations.
s 7: Am 2009 No 56, Sch 3.4.
8
Use of evidence taken in an examination
8 Use of evidence taken in an examination
8 Use of evidence taken in an examination
(1) The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—
(a) a person’s evidence taken in an examination held as a result of an order made under section 6, or
(b) a record of that evidence.
(2) Evidence of a person so tendered is not admissible if—
(a) it appears to the court’s satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the proceeding.
Division 3
Proceedings in inferior courts
Division 3 Proceedings in inferior courts
Division 3 Proceedings in inferior courts
9
Orders for taking evidence abroad
9 Orders for taking evidence abroad
9 Orders for taking evidence abroad
A superior court may, on the application of a party to a proceeding before an inferior court, exercise the same power to make an order of the kind referred to in Division 2 for the purpose of that proceeding as the superior court has under that Division for the purpose of a proceeding in the superior court.
10
Use of evidence taken in an examination
10 Use of evidence taken in an examination
10 Use of evidence taken in an examination
(1) The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—
(a) a person’s evidence taken in an examination held as a result of an order made under section 9, or
(b) a record of that evidence.
(2) Evidence of a person so tendered is not admissible if—
(a) it appears to the court’s satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the proceeding.
Division 4
Subsequent proceedings
Division 4 Subsequent proceedings
Division 4 Subsequent proceedings
11
Directions for use in subsequent proceedings of evidence taken abroad
11 Directions for use in subsequent proceedings of evidence taken abroad
11 Directions for use in subsequent proceedings of evidence taken abroad
(1) If, under section 9, a superior court makes an order in relation to a committal proceeding, it may include in the order a direction that evidence taken outside Australia under the order may, subject to this Division, be tendered in a proceeding that is—
(a) a criminal proceeding that results from the committal proceeding, or
(b) a related civil proceeding.
(2) If, under section 6 or 9, a superior court makes an order in relation to a criminal proceeding (other than a committal proceeding), it may include in the order a direction that evidence taken outside Australia under the order may, subject to this Division, be tendered in a proceeding that is a related civil proceeding.
(3) In this section—
related civil proceeding, in relation to a criminal proceeding, means any civil proceeding arising from the same subject-matter from which the criminal proceeding arose, and, in particular, includes—
(b) a proceeding for the recovery of tax, or of any duty, levy or charge payable to the State.
12
Use of evidence in subsequent proceedings
12 Use of evidence in subsequent proceedings
12 Use of evidence in subsequent proceedings
(1) This section applies to a proceeding to which a direction included in an order under section 6 or 9 relates.
(2) The court before which the proceeding takes place may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—
(a) a person’s evidence taken in an examination held as a result of the order under section 6 or 9, or
(b) a record of that evidence.
(3) A person’s evidence so tendered is not admissible if—
(a) it appears to the court’s satisfaction at the hearing of the subsequent proceeding that the person is in Australia and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the subsequent proceeding.
Division 5
General
Division 5 General
Division 5 General
13
Variation or revocation of orders
13 Variation or revocation of orders
13 Variation or revocation of orders
(1) A superior court may vary or revoke an order made by the court under section 6 or 9.
(2) The power to vary such an order includes the power to—
(a) include in the order a direction under section 11, or
(b) vary or revoke a direction under section 11 that is included in the order.
(3) If an order under section 6 or 9 that includes a direction under section 11 is revoked, the direction under section 11 is taken to have been revoked at the same time.
14
Courts may exercise certain powers in chambers
14 Courts may exercise certain powers in chambers
14 Courts may exercise certain powers in chambers
A court may exercise its power under this Part in chambers.
15
Operation of other laws
15 Operation of other laws
15 Operation of other laws
This Part is not intended to exclude or limit the operation of any law of the State, or of any rule or regulation made under such a law, that provides for the examination of witnesses outside Australia for the purpose of a proceeding in the State.
16
Rules of court
16 Rules of court
16 Rules of court
(1) The power to make rules under an Act regulating the practice and procedure of a superior court extends, for the purpose of regulating proceedings brought under this Part in or before that court, to making any rules prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Part.
(2) In particular, rules may be made prescribing matters for or with respect to the practice and procedure of the superior court in proceedings for the making of an order under section 6 or 9.
(3) Rules so made must not be inconsistent with this Act or any regulation made under section 37.
(4) This section does not affect any power to make rules under any other law.
Part 3
Examination of witnesses outside the State but within Australia
Part 3 Examination of witnesses outside the State but within Australia
Part 3 Examination of witnesses outside the State but within Australia
17
Application of this Part
17 Application of this Part
17 Application of this Part
This Part does not apply to an examination outside Australia, and references in this Part to persons, acts, matters or things outside the State are to be read as excluding those outside Australia.
18
Definitions
18 Definitions
18 Definitions
In this Part—
examination includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a place outside the State in relation to a letter of request issued as a result of an order made by a court under this Part.
inferior court means a court of the State (other than a superior court) except when exercising federal jurisdiction.
judicial authority of a place outside the State means a court or person prescribed as an appropriate judicial authority for that place.
superior court means—
(a) the Supreme Court, and
(b) the Land and Environment Court, and
(c) the Industrial Relations Commission in Court Session, and
(d) (Repealed)
(e) the Dust Diseases Tribunal of New South Wales, and
(f) the District Court,
except when exercising federal jurisdiction.
s 18: Am 1996 No 121, Sch 4.21 [2]; 2002 No 23, Sch 1.2 [2]; 2002 No 53, Sch 2.13; 2016 No 48, Sch 2.18 [2]; 2023 No 41, Sch 2.17[2].
19
References to evidence taken in an examination
19 References to evidence taken in an examination
19 References to evidence taken in an examination
A reference in this Part to evidence taken in an examination includes a reference to—
(a) a document produced at the examination, and
(b) answers made to any written interrogatories presented at the examination, whether the answers are made in writing or are made orally and put in writing.
20
Orders for taking evidence outside NSW
20 Orders for taking evidence outside NSW
20 Orders for taking evidence outside NSW
(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, make an order relating to a person outside the State—
(a) for examination of the person on oath or affirmation at any place outside the State before a judge of the court, an officer of the court or such other person as the court may appoint, or
(b) for issue of a commission for examination of the person on oath or affirmation at any place outside the State, or
(c) for issue of a letter of request to the judicial authorities of a place outside the State to take the evidence of a person or cause it to be taken.
(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the superior court is to have regard include the following—
(a) whether the person is willing or able to come to the State to give evidence in the proceeding,
(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding,
(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by making or refusing to make the order.
21
Directions and requests relating to orders
21 Directions and requests relating to orders
21 Directions and requests relating to orders
(1) If the superior court makes an order of the kind referred to in section 20 (1) (a) or (b), the court may, at the time of making the order or at a later time, give such directions as it thinks just relating to the procedure to be followed in relation to the examination, including directions about—
(a) the time, place and manner of the examination, and
(b) any other matter that the court thinks relevant.
(2) If the superior court makes an order of the kind referred to in section 20 (1) (c), the court may include in the order a request about any matter relating to taking that evidence, including any of the following matters—
(a) examination, cross-examination or re-examination of the person, whether the person’s evidence is given orally, on affidavit or otherwise,
(b) attendance of the Australian legal practitioner representing each party to the proceeding in question and participation of those persons in the examination in appropriate circumstances,
(c) any matter prescribed by the regulations.
s 21: Am 2009 No 56, Sch 3.4.
22
Use of evidence taken in an examination
22 Use of evidence taken in an examination
22 Use of evidence taken in an examination
(1) The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—
(a) a person’s evidence taken in an examination held as a result of an order made under section 20, or
(b) a record of that evidence.
(2) Evidence of a person so tendered is not admissible if—
(a) it appears to the court’s satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the proceeding.
23
Orders for taking evidence
23 Orders for taking evidence
23 Orders for taking evidence
A superior court may, on the application of a party to a proceeding before an inferior court, exercise the same power to make an order of the kind referred to in Division 2 for the purpose of that proceeding as the superior court has under that Division for the purpose of a proceeding in the superior court.
24
Use of evidence taken in an examination
24 Use of evidence taken in an examination
24 Use of evidence taken in an examination
(1) The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—
(a) a person’s evidence taken in an examination, or
(b) a record of that evidence.
(2) Evidence of a person so tendered is not admissible if—
(a) it appears to the court’s satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the proceeding.
25
Directions for use in subsequent proceedings of evidence taken abroad
25 Directions for use in subsequent proceedings of evidence taken abroad
25 Directions for use in subsequent proceedings of evidence taken abroad
(1) If, under section 23, a superior court makes an order in relation to a committal proceeding, it may include in the order a direction that evidence taken outside the State under the order may, subject to this Division, be tendered in a proceeding that is—
(a) a criminal proceeding that results from the committal proceeding, or
(b) a related civil proceeding.
(2) If, under section 20 or 23, a superior court makes an order in relation to a criminal proceeding (other than a committal proceeding), it may include in the order a direction that evidence taken outside the State under the order may, subject to this Division, be tendered in a proceeding that is a related civil proceeding.
(3) In this section—
related civil proceeding, in relation to a criminal proceeding, means any civil proceeding arising from the same subject-matter from which the criminal proceeding arose, and, in particular, includes—
(b) a proceeding for the recovery of tax, or of any duty, levy or charge payable to the State.
26
Use of evidence in subsequent proceedings
26 Use of evidence in subsequent proceedings
26 Use of evidence in subsequent proceedings
(1) This section applies to a proceeding to which a direction included in an order under section 20 (1) or 23 relates.
(2) The court before which the proceeding takes place may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—
(a) a person’s evidence taken in an examination held as a result of the order under section 20 (1) or 23, or
(b) a record of that evidence.
(3) A person’s evidence so tendered is not admissible if—
(a) it appears to the court’s satisfaction at the hearing of the subsequent proceeding that the person is in Australia and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the subsequent proceeding.
27
Variation or revocation of orders
27 Variation or revocation of orders
27 Variation or revocation of orders
(1) A superior court may vary or revoke an order made by the court under section 20 or 23.
(2) The power to vary such an order includes the power to—
(a) include in the order a direction under section 25, or
(b) vary or revoke a direction under section 25 that is included in the order.
(3) If an order under section 20 or 23 that includes a direction under section 25 is revoked, the direction under section 25 is taken to have been revoked at the same time.
28
Courts may exercise certain powers in chambers
28 Courts may exercise certain powers in chambers
28 Courts may exercise certain powers in chambers
A court may exercise its power under this Part in chambers.
29
Operation of other laws
29 Operation of other laws
29 Operation of other laws
This Part is not intended to exclude or limit the operation of any law of the State, or of any rule or regulation made under such a law, that provides for the examination of witnesses outside the State for the purpose of a proceeding in the State.
30
Rules of court
30 Rules of court
30 Rules of court
(1) The power to make rules under an Act regulating the practice and procedure of a superior court extends, for the purpose of regulating proceedings brought under this Part in or before that court, to making any rules prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Part.
(2) In particular, rules may be made prescribing matters for or with respect to the practice and procedure of the superior court in proceedings for the making of an order under section 20 or 23.
(3) Rules so made must not be inconsistent with this Act or any regulation made under section 37.
(4) This section does not affect any power to make rules under any other law.
Part 4
Taking of evidence for foreign and Australian Courts
Part 4 Taking of evidence for foreign and Australian Courts
Part 4 Taking of evidence for foreign and Australian Courts
31
Definitions
31 Definitions
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
32 Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court
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
33 Power of the Supreme Court to give effect to application for assistance
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.
34
Privilege of witnesses
34 Privilege of witnesses
34 Privilege of witnesses
(1) A person must not be compelled by virtue of an order under section 33 to give any evidence which the person could not be compelled to give—
(a) in similar proceedings in the State, or
(b) in similar proceedings in the place in which the requesting court exercises jurisdiction.
(2) Subsection (1) (b) does not apply unless the claim of the person in question to be exempt from giving evidence is either—
(a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled), or
(b) conceded by the applicant for the order.
(3) If such a claim by any person is not so supported or conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but that evidence is not to be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.
(4) In this section, references to giving evidence include references to answering any question and to producing any document, and the reference in subsection (3) to the transmission of evidence given by a person is to be construed accordingly.
35
Operation of other laws
35 Operation of other laws
35 Operation of other laws
This Part is not intended to exclude or limit the operation of any law of the State that provides for the taking of evidence in the State for the purpose of a proceeding outside the State.
36
Rules of court
36 Rules of court
36 Rules of court
(1) The power to make rules under the Supreme Court Act 1970 extends to the making of rules for or with respect to—
(a) the manner in which an application under section 32 is to be made, and
(b) the circumstances in which an order can be made under section 33, and
(c) the manner in which any reference mentioned in section 34 (3) is to be made.
(2) Any such rules may include such incidental, supplementary and consequential provisions as are necessary or convenient.
Part 5
Miscellaneous
Part 5 Miscellaneous
Part 5 Miscellaneous
37
Regulations
37 Regulations
37 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, prescribing matters for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, regulations may be made for or with respect to the practice and procedure of the Supreme Court, the Land and Environment Court, the Industrial Relations Commission and the Dust Diseases Tribunal of New South Wales in proceedings for the making of an order under this Act.
s 37: Am 1996 No 121, Sch 4.21 [3]; 2002 No 23, Sch 1.2 [3]; 2016 No 48, Sch 2.18 [3]; 2023 No 41, Sch 2.17[3].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Evidence on Commission Act 1995.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
Expressions used in this Act that are defined in the Evidence Act 1995 have the meanings set out in that Act.
Part 2 Examination of witnesses abroad
Part 2 Examination of witnesses abroad
Part 2 Examination of witnesses abroad
Division 1 Preliminary
Division 1 Preliminary
Division 1 Preliminary
4 Definitions
4 Definitions
4 Definitions
In this Part—
examination includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by a court under this Part.
inferior court means a court of the State (other than a superior court) except when exercising federal jurisdiction.
superior court means—
(a) the Supreme Court, and
(b) the Land and Environment Court, and
(c) the Industrial Relations Commission in Court Session, and
(d) (Repealed)
(e) the Dust Diseases Tribunal of New South Wales, and
(f) the District Court,
except when exercising federal jurisdiction.
s 4: Am 1996 No 121, Sch 4.21 [1]; 2001 No 108, Sch 2; 2002 No 23, Sch 1.2 [1]; 2016 No 48, Sch 2.18 [1]; 2023 No 41, Sch 2.17[1].
5 References to evidence taken in an examination
5 References to evidence taken in an examination
5 References to evidence taken in an examination
Evidence on Commission Act 1995 (New South Wales) | Zoe
Division 4 (ss 11–12) extends the regime to subsequent proceedings. Where evidence was taken for a committal, the superior court may direct that it be available in any resulting criminal trial or in a “related civil proceeding” (defined in s 11(3) to include confiscation proceedings under the Confiscation of Proceeds of Crime Act 1989 or tax-recovery actions). The same admissibility filters in s 12(3) apply, with the geographic test broadened to “in Australia”.
Part 3 replicates the entire scheme for witnesses outside New South Wales but still within Australia. Section 17 expressly excludes overseas examinations, and the definitions in s 18 adapt the terminology (e.g. “judicial authority of a place outside the State” means a prescribed court or person). The operative sections (ss 20–26) are textually almost identical to their Part 2 counterparts, ensuring symmetry while respecting federal constitutional limits on extraterritoriality.
Part 4 reverses the direction of travel. It authorises the Supreme Court to respond to incoming requests from courts or tribunals outside New South Wales (including New Zealand for criminal matters). Section 32 sets the jurisdictional gateway: the Supreme Court must be satisfied that the request emanates from a court or tribunal and that the evidence is for proceedings already instituted or reasonably contemplated. Section 33 then confers a broad discretionary power to order any step that could be ordered in Supreme Court proceedings of a similar character. The menu in s 33(3) includes oral or written examination, production of documents, inspection or sampling of property, and even medical examinations or blood tests. Limitations are important: the order cannot require a general discovery affidavit (s 33(6)), and any privilege that would be available either in New South Wales or in the requesting jurisdiction is preserved (s 34). The Part is expressly not exhaustive (s 35), preserving other statutory or common-law avenues for incoming requests.
Part 5 supplies the machinery: regulations (s 37) and rules of court (ss 16, 30, 36) may flesh out practice and procedure, while s 15 and s 29 make clear that the Act does not exclude other laws that achieve the same end. In short, the statute creates a two-way valve for evidence flow across borders, hedged by repeated “interests of justice” and admissibility filters that keep the exception from swallowing the ordinary rule that witnesses give evidence in open court.
Who it affects
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.
Key duties and rights
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.
Penalties and enforcement
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.
How it interacts with other laws
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.
Recent changes and why
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.
Court challenges and controversies
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.
Gotchas
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.
How to comply
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.
A reference in this Part to evidence taken in an examination includes a reference to—
(a) a document produced at the examination, and
(b) answers made to any written interrogatories presented at the examination, whether the answers are made in writing or are made orally and put in writing.
Division 2 Proceedings in superior courts
Division 2 Proceedings in superior courts
Division 2 Proceedings in superior courts
6 Orders for taking evidence abroad
6 Orders for taking evidence abroad
6 Orders for taking evidence abroad
(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order relating to a person outside Australia—
(a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint, or
(b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia, or
(c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person or cause it to be taken.
(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the superior court is to have regard include the following—
(a) whether the person is willing or able to come to the State to give evidence in the proceeding,
(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding,
(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by making or refusing to make the order.
7 Directions and requests relating to orders
7 Directions and requests relating to orders
7 Directions and requests relating to orders
(1) If a superior court makes an order of the kind referred to in section 6 (1) (a) or (b), the court may, at the time of making the order or at a later time, give such directions as it thinks just relating to the procedure to be followed in relation to the examination, including directions about—
(a) the time, place and manner of the examination, and
(b) any other matter that the court thinks relevant.
(2) If a superior court makes an order of the kind referred to in section 6 (1) (c), the court may include in the order a request about any matter relating to taking that evidence, including any of the following matters—
(a) examination, cross-examination or re-examination of the person, whether the person’s evidence is given orally, on affidavit or otherwise,
(b) attendance of the Australian legal practitioner representing each party to the proceeding in question and participation of those persons in the examination in appropriate circumstances,
(c) any matter prescribed by the regulations.
s 7: Am 2009 No 56, Sch 3.4.
8 Use of evidence taken in an examination
8 Use of evidence taken in an examination
8 Use of evidence taken in an examination
(1) The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—
(a) a person’s evidence taken in an examination held as a result of an order made under section 6, or
(b) a record of that evidence.
(2) Evidence of a person so tendered is not admissible if—
(a) it appears to the court’s satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the proceeding.
Division 3 Proceedings in inferior courts
Division 3 Proceedings in inferior courts
Division 3 Proceedings in inferior courts
9 Orders for taking evidence abroad
9 Orders for taking evidence abroad
9 Orders for taking evidence abroad
A superior court may, on the application of a party to a proceeding before an inferior court, exercise the same power to make an order of the kind referred to in Division 2 for the purpose of that proceeding as the superior court has under that Division for the purpose of a proceeding in the superior court.
10 Use of evidence taken in an examination
10 Use of evidence taken in an examination
10 Use of evidence taken in an examination
(1) The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—
(a) a person’s evidence taken in an examination held as a result of an order made under section 9, or
(b) a record of that evidence.
(2) Evidence of a person so tendered is not admissible if—
(a) it appears to the court’s satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the proceeding.
Division 4 Subsequent proceedings
Division 4 Subsequent proceedings
Division 4 Subsequent proceedings
11 Directions for use in subsequent proceedings of evidence taken abroad
11 Directions for use in subsequent proceedings of evidence taken abroad
11 Directions for use in subsequent proceedings of evidence taken abroad
(1) If, under section 9, a superior court makes an order in relation to a committal proceeding, it may include in the order a direction that evidence taken outside Australia under the order may, subject to this Division, be tendered in a proceeding that is—
(a) a criminal proceeding that results from the committal proceeding, or
(b) a related civil proceeding.
(2) If, under section 6 or 9, a superior court makes an order in relation to a criminal proceeding (other than a committal proceeding), it may include in the order a direction that evidence taken outside Australia under the order may, subject to this Division, be tendered in a proceeding that is a related civil proceeding.
(3) In this section—
related civil proceeding, in relation to a criminal proceeding, means any civil proceeding arising from the same subject-matter from which the criminal proceeding arose, and, in particular, includes—
(a) a proceeding under the Confiscation of Proceeds of Crime Act 1989, or
(b) a proceeding for the recovery of tax, or of any duty, levy or charge payable to the State.
12 Use of evidence in subsequent proceedings
12 Use of evidence in subsequent proceedings
12 Use of evidence in subsequent proceedings
(1) This section applies to a proceeding to which a direction included in an order under section 6 or 9 relates.
(2) The court before which the proceeding takes place may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—
(a) a person’s evidence taken in an examination held as a result of the order under section 6 or 9, or
(b) a record of that evidence.
(3) A person’s evidence so tendered is not admissible if—
(a) it appears to the court’s satisfaction at the hearing of the subsequent proceeding that the person is in Australia and is able to attend the hearing, or
(b) the evidence would not have been admissible had it been adduced at the hearing of the subsequent proceeding.
Division 5 General
Division 5 General
Division 5 General
13 Variation or revocation of orders
13 Variation or revocation of orders
13 Variation or revocation of orders
(1) A superior court may vary or revoke an order made by the court under section 6 or 9.
(2) The power to vary such an order includes the power to—
(a) include in the order a direction under section 11, or
(b) vary or revoke a direction under section 11 that is included in the order.
(3) If an order under section 6 or 9 that includes a direction under section 11 is revoked, the direction under section 11 is taken to have been revoked at the same time.
14 Courts may exercise certain powers in chambers
14 Courts may exercise certain powers in chambers
14 Courts may exercise certain powers in chambers
A court may exercise its power under this Part in chambers.
15 Operation of other laws
15 Operation of other laws
15 Operation of other laws
This Part is not intended to exclude or limit the operation of any law of the State, or of any rule or regulation made under such a law, that provides for the examination of witnesses outside Australia for the purpose of a proceeding in the State.
16 Rules of court
16 Rules of court
16 Rules of court
(1) The power to make rules under an Act regulating the practice and procedure of a superior court extends, for the purpose of regulating proceedings brought under this Part in or before that court, to making any rules prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Part.
(2) In particular, rules may be made prescribing matters for or with respect to the practice and procedure of the superior court in proceedings for the making of an order under section 6 or 9.
(3) Rules so made must not be inconsistent with this Act or any regulation made under section 37.
(4) This section does not affect any power to make rules under any other law.
Part 3 Examination of witnesses outside the State but within Australia
Part 3 Examination of witnesses outside the State but within Australia
Part 3 Examination of witnesses outside the State but within Australia
Division 1 Preliminary
Division 1 Preliminary
Division 1 Preliminary
17 Application of this Part
17 Application of this Part
17 Application of this Part
This Part does not apply to an examination outside Australia, and references in this Part to persons, acts, matters or things outside the State are to be read as excluding those outside Australia.
18 Definitions
18 Definitions
18 Definitions
In this Part—
examination includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a place outside the State in relation to a letter of request issued as a result of an order made by a court under this Part.
inferior court means a court of the State (other than a superior court) except when exercising federal jurisdiction.
judicial authority of a place outside the State means a court or person prescribed as an appropriate judicial authority for that place.
superior court means—
(a) the Supreme Court, and
(b) the Land and Environment Court, and
(c) the Industrial Relations Commission in Court Session, and
(d) (Repealed)
(e) the Dust Diseases Tribunal of New South Wales, and
(f) the District Court,
except when exercising federal jurisdiction.
s 18: Am 1996 No 121, Sch 4.21 [2]; 2002 No 23, Sch 1.2 [2]; 2002 No 53, Sch 2.13; 2016 No 48, Sch 2.18 [2]; 2023 No 41, Sch 2.17[2].
19 References to evidence taken in an examination
19 References to evidence taken in an examination
19 References to evidence taken in an examination
A reference in this Part to evidence taken in an examination includes a reference to—
(a) a document produced at the examination, and
(b) answers made to any written interrogatories presented at the examination, whether the answers are made in writing or are made orally and put in writing.
Division 2 Proceedings in superior courts
Division 2 Proceedings in superior courts
Division 2 Proceedings in superior courts
20 Orders for taking evidence outside NSW
20 Orders for taking evidence outside NSW
20 Orders for taking evidence outside NSW
(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, make an order relating to a person outside the State—
(a) for examination of the person on oath or affirmation at any place outside the State before a judge of the court, an officer of the court or such other person as the court may appoint, or
(b) for issue of a commission for examination of the person on oath or affirmation at any place outside the State, or
(c) for issue of a letter of request to the judicial authorities of a place outside the State to take the evidence of a person or cause it to be taken.
(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the superior court is to have regard include the following—
(a) whether the person is willing or able to come to the State to give evidence in the proceeding,
(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding,
(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by making or refusing to make the order.
21 Directions and requests relating to orders
21 Directions and requests relating to orders
21 Directions and requests relating to orders
(1) If the superior court makes an order of the kind referred to in section 20 (1) (a) or (b), the court may, at the time of making the order or at a later time, give such directions as it thinks just relating to the procedure to be followed in relation to the examination, including directions about—
(a) the time, place and manner of the examination, and
(b) any other matter that the court thinks relevant.
(2) If the superior court makes an order of the kind referred to in section 20 (1) (c), the court may include in the order a request about any matter relating to taking that evidence, including any of the
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