Attorney General in and for the State of NSW [2012] NSWSC 341

Supreme Court New South Wales

Medium Neutral Citation: Attorney General in and for the State of NSW [2012] NSWSC 341 Hearing dates: 18 November 2011 Decision date: 16 April 2012 Before: Hislop J Decision: 1. The orders of Schmidt J made on 22 July 2011 are set aside. 2. The plaintiff is to pay EFIC's costs of, and associated with, the notice of motion filed on 9 August 2011. Catchwords: Common law - Evidence on commission - application of secrecy provision Legislation Cited: Evidence on Commission Act 1995 Export Finance and Insurance Corporation Act 1991 Cases Cited: Canadian Pacific Tobacco Co Limited v Stapleton (1952) CLR 1 The Application of Monier Inc [2009] NSWSC 086; NSWLR 158 Category: Interlocutory applications Parties: Export Finance and Insurance Corporation (Applicant) Attorney General in and for the State of New South Wales (Respondent/Plaintiff) Representation: K. Stern SC (Applicant) D. Villa (Respondent/Plaintiff) Australian Government Solicitor (Applicant) Crown Solicitor's Office (Respondent/Plaintiff) File Number(s): 2011/193495

Judgment

Introduction 1The plaintiff, by summons filed on 14 June 2011, sought orders pursuant to s 33 of the Evidence on Commission Act 1995 against Export Finance and Insurance Corporation (EFIC) in respect of a request received from the Second Court of Commerce of First Instance of Istanbul. 2The summons was heard by Schmidt J. The hearing was conducted ex parte, no person being required to be joined as a defendant - UCPR 52.1(2). Counsel for the plaintiff informed her Honour that the plaintiff believed EFIC would seek to rely upon s 87 of the Export Finance and Insurance Corporation Act 1991 (Cth) ("the Act") to contest the orders, if made. 3On 22 July 2001 her Honour made the orders sought by the plaintiff but added some introductory words to address the possibility that EFIC may wish to contest the orders. 4The orders made by her Honour were as follows: "1. Unless within 14 days of service of a sealed copy of this Order upon Export Finance and Insurance Corporation ('EFIC') makes an application by way of notice of motion in these proceedings to set aside this Order, EFIC is within 28 days of service of a sealed copy of this Order upon the Proper Officer of EFIC to produce to the Court a copy of: a. the contents of its file reference number 102605, and b. copies of all correspondence, contracts, records of payments made and received and records of claims made and received by EFIC as subrogee of a debt owed to Yavuz Pty Ltd (Australia) by Oktay Omurtak Deri Isletmeleri ve Ticaret AS. 2. The plaintiff be given photocopy access to the documents produced in response to order 1. 3. Leave be granted to the plaintiff to provide a copy of the documents produced in response to order 1 to the 2nd Court of Commerce of First Instance of Istanbul ('the Turkish Court')." 5EFIC responded by notice of motion filed on 9 August 2011. It sought the following orders: "1.The orders made by Schmidt J on 22 July 2011 be set aside. 2.In the alternative, the Proper Officer of the Export Finance and Insurance Corporation be excused from producing the documents described in the orders made by Schmidt J on 22 July 2011 on the ground that production of the documents would breach s 87 of the Export Finance and Insurance Corporation Act 1991 (Cth)." 6EFIC relied upon s 87(4) and (5) of the Act and s 33 of the Evidence on Commission Act 1995 in support of its motion. 7The plaintiff opposed the orders sought by EFIC.