Supreme Court New South Wales Medium Neutral Citation: Vitarich Laboratories v Alan Chen (ex parte) [2012] NSWSC 746 Hearing dates: 29/05/2012 Decision date: 29 May 2012 Before: Garling J Decision: (1) The plaintiffs be granted leave to file and serve upon Mr Alan Chen a subpoena to attend and give evidence, and a subpoena to produce, in the form annexed to the affidavit of Kirk Sanjay Simmons sworn 30/4/12 and marked "J", providing that paragraphs 2, 10, 19, 20, 22, 23, 25, 27 and 28 are deleted therefrom. (2) The Hon. G E Fitzgerald QC of Level 7, Wentworth Chambers, 180 Phillip St, Sydney NSW 2000 be appointed the Examiner for the purpose of taking the examination of Mr Chen on oath or affirmation. (3) The examination of Mr Alan Chen be held at 10am on 3/9/12, or on such other date as may be fixed by the Examiner at the offices of DLA Piper Australia, Level 38, 201 Elizabeth Street Sydney. (4) The examination hearing be transcribed and recorded audio-visually and that such transcripts be signed and certified by the Examiner. (5) The plaintiffs bear the costs of Order 2, 3 and 4. (6) All counsel retained in proceedings 07-3275-LA in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida are hereby granted leave to take part in the examination. (7) The Examiner forward the records of the examination and any exhibits to the Registrar of the Court to be dealt with in accordance with the Uniform Civil Procedure Rules 2005 and/or the Evidence on Commission Act. (8) The parties have liberty to apply on two days' notice. (9) The proceedings be listed before the Registrar on 15/10/12 at 9am. Catchwords: EVIDENCE - Evidence on Commission Act 1995 - request from US Court for attendance of witness for examination and production of documents Legislation Cited: Evidence on Commission Act 1995 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Vitarich Laboratories Inc (First Applicant) Argan Inc (Second Applicant) Alan Chen (Respondent) Representation: C S Ward (Applicant) Ex Parte (Respondent) File Number(s): 2012/104504 EX TEMPORE Judgment 1This is an application by summons by Vitarich Laboratories Inc and Argan Inc for orders pursuant to s 33 of the Evidence on Commission Act 1995 ("the Act"). The application is made and heard ex parte as permitted by s 52 of the Uniform Civil Procedure Rules. 2The evidence, contained principally in the affidavit of Mr Kirk Simmons sworn 30 April 2012, establishes that on or around 12 October 2011 the Circuit Court of the 20th Judicial Circuit in and for Collier County Florida in the United States of America, issued a Letter of Request in respect of proceedings in that Court commenced by Tampa Bay Neutraceuticals Co NLC against Vitarich Laboratories Inc (and threatened against others, including Argan Inc) claiming damages arising out of a commercial dispute between the parties ("the US proceedings"). 3Although by an order of the Circuit Court made on 28 August 2011, those proceedings are stayed, the making of this application and the granting of it, was by further order of 12 October 2011, specifically excluded from that stay. 4In the US proceedings, Mr Alan Chen signed a document described as an affidavit on 12 May 2009. At the time he signed it, he was in Shanghai, China. He said that he was the General Manager of Medical Devices and Surgicals, Shanghai Pharmaceutical Company Limited. His affidavit was directed to stating the intended position with respect to the Shanghai Pharmaceutical Company importing into China and then selling and distributing, a product known as NeutraCal. The potential for sale and distribution of this produce is the central subject of the commercial dispute in the US proceedings. It is fair, to describe the affidavit of Mr Chen as addressing the anticipated or intended distribution and sale of NeutraCal in China. 5I am informed by counsel for Vitarich Inc that the affidavit of Mr Chen is the principal affidavit upon which the plaintiff in the US proceedings relies to establish the extent of the damages which it claims in that proceeding. 6As well, I have been provided with an affidavit of Mr Ping Du who, at the time that he made it on 7 April 2009, was employed and living in Texas. He is a United States citizen although born in China. Mr Du's affidavit also contains material relevant to the extent of damages claimed to have be suffered by the plaintiff in the US proceedings. 7The Letter of Request seeks the assistance of this Court in securing the attendance to give evidence of Mr Chen and for the production by him of documents set out in a subpoena. 8The disposition of an application of this kind depends upon the provisions of s33 of the Act. That legislation gives this Court ample power by order to make such provision for obtaining evidence in NSW as may appear to the court to be appropriate for the purpose of giving effect to the request from the foreign court. Section 33(2) of the Act provides that an order may require a specified person to take such steps as the court may consider appropriate for that purpose. Section 33(3) of the Act makes specific provision for including in such orders an order for the examination of witnesses either orally or in writing, for the provision of documents and photographs for inspection, and for the preservation, custody or retention of any property. 9The capacity of the Court to make an order is limited in two ways. First, s 33(4) of the Act limits the order by reference to the capacity of this Court in accordance with its rules to obtain evidence for the purpose of the proceedings. 10Section 33(6) of the Act is in these terms: "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 persons' 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 the persons care custody or power". 11In any ordinary proceedings in this Court, there is no reason why requiring the attendance of a witness to be orally examined in front of an Examiner and/or to produce documents at that examination could be regarded as a step beyond the capacity of this Court to make in accordance with its own rules. However, s 33(6) of the Act does, in light of the particular subpoena to produce sought to be served, call up for consideration whether all of the paragraphs of the subpoena to produce are properly permissible. 12In accordance with the usual authorities on the grant of leave to serve subpoenas in this Court, this Court does not grant parties the power to serve subpoenas where the parties are engaged simply on a fishing expedition or where by reason of the wording in the subpoena, the party to whom the subpoena is directed is required to in effect give discovery. 13In the application of those well-known principles, I will not permit the subpoena to produce documents in this case to be issued in the form presently annexed but it will need to be amended by deletion of a number of paragraphs which I will shortly specify. As to the balance of the orders sought, I am satisfied that the powers of this court under s 33 of the Act are sufficient to grant them and that it is appropriate that they be granted. 14I make the following orders: (1)The plaintiffs be granted leave to file and serve upon Mr Alan Chen a subpoena to attend and give evidence, and a subpoena to produce, in the form annexed to the affidavit of Kirk Sanjay Simmons sworn 30/4/12 and marked "J", providing that paragraphs 2, 10, 19, 20, 22, 23, 25, 27 and 28 are deleted therefrom. (2)The Hon. G E Fitzgerald QC of Level 7, Wentworth Chambers, 180 Phillip St, Sydney NSW 2000 be appointed the Examiner for the purpose of taking the examination of Mr Chen on oath or affirmation. (3)The examination of Mr Alan Chen be held at 10am on 3/9/12, or on such other date as may be fixed by the Examiner at the offices of DLA Piper Australia, Level 38, 201 Elizabeth Street Sydney. (4)The examination hearing be transcribed and recorded audio-visually and that such transcripts be signed and certified by the Examiner. (5)The plaintiffs bear the costs of Order 2, 3 and 4. (6)All counsel retained in proceedings 07-3275-LA in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida are hereby granted leave to take part in the examination. (7)The Examiner forward the records of the examination and any exhibits to the Registrar of the Court to be dealt with in accordance with the Uniform Civil Procedure Rules 2005 and/or the Evidence on Commission Act. (8)The parties have liberty to apply on two days' notice. (9)The proceedings be listed before the Registrar on 15/10/12 at 9am. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 July 2012