LENNING v ALEXANDER PROUDFOOT COMPANY WORLD HEADQUARTERS [1991] NSWCA 172

LENNING v ALEXANDER PROUDFOOT COMPANY WORLD HEADQUARTERS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and CLARKE JJA 25 February 1991, 22 April 1991 [1991] NSWCA 172

COSTS — Court of Appeal — summons for leave to appeal partial success of — variation of orders below — declaration made as to questions that may be asked of local witnesses appearing before an examiner — examination pursuant to request of foreign court under Pt9 Evidence Act 1898 urgent proceedings in the Court of Appeal occasioned by the presence in the State of attorneys from Florida — held: (Kirby P; Priestley and Clarke JJA concurring) As each party had succeeded only in part in the proceedings each should bear his or its own costs — accordingly, no order made as to costs.

PRACTICE and PROCEDURE — evidence for foreign court — request by judge in Florida — examination of witnesses — whether, having regard to Florida procedure, the examination involves taking "evidence" — whether involves pre-trial discovery meaning of exemption from obligation to answer question held: (Kirby P; Priestley and Clarke JJA reserving their opinions) The Court should declare that the questions asked are limited so as not to require those questioned to give any evidence which could not have been compelled to be given in examination-in-chief in an action of an equivalent character in New South Wales.

LEGAL PRACTITIONERS — foreign attorneys — whether entitled to participate in examination before a court appointed examiner — whether doing so constitutes a breach of the Legal Profession Act 1987, s115 — held: There is no such breach.

EVIDENCE — answering questions — request by foreign court examination ordered by court - subpoena to attend for examination — scope of questions which may be asked and documents required — discussion by Kirby P of the differences between procedure in NSW and United States courts.