In the application of Laura Dunlop: request for international judicial assistance [2013] NSWSC 634

Supreme Court New South Wales

Medium Neutral Citation: In the application of Laura Dunlop: request for international judicial assistance [2013] NSWSC 634 Hearing dates: 9 May 2013 Decision date: 09 May 2013 Before: McCallum J Decision: Orders in accordance with orders 1, 2 and 3 in the form of order provided by counsel for the plaintiff Catchwords: PROCEDURE - subpoena - evidence on commission Legislation Cited: Evidence on Commission Act 1995 Category: Interlocutory applications Parties: JL Brodie (plaintiff) ex parte Representation: Counsel: Mr C Mantziaris (plaintiff/applicant) Solicitors: VC Lawyers (plaintiff/applicant) File Number(s): 2013/143902 Publication restriction: None

Judgment - ex tempore 1HER HONOUR: This is an application for orders under the Evidence on Commission Act 1995. The application is made pursuant to a request by Jan L Brodie, Judge of the Fairfax County Virginia Circuit Court in the United States of America for international judicial assistance in respect of divorce proceedings in that Court between Laura Dunlop and Cameron Dunlop. 2The Court has power under s 33 of the Evidence on Commission Act 1995 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. In the present case there are three requests, in each case for the purpose of obtaining documents identified in the requests. 3The nature of the proceedings in the Virginia Circuit Court is described in paragraph 7 of each request in the following terms: a. Exhibit DCV 2: A request in respect of a subpoena to be served upon Stuart Critchley Dunlop of 1/14 Hosking Street, Balmain East, NSW, 2041 b. Exhibit DXCV 3: A request in respect of a subpoena to be served upon Andrew Critchley Dunlop of Unit 621, 7 Potter Street, Waterloo, NSW, 2017 c. Exhibit DCV 4: A request in respect of a subpoena to be served upon Vardun Pty Ltd (CAN 000 734 798), whose registered office is Unit 2, 80A Mt Keira Road, West Wollongong, NSW, 2500 d. Exhibit DCV 5: A request in respect of a subpoena to be served upon A R Yates & Co, Solicitors, of 365B&C Crown Street, Wollongong, NSW, 2500 4In aid of the requests the applicant asks this Court to issue subpoenas for the production of documents identified in an attachment to the request. Two of the subpoenas sought to be issued are directed to Stuart Dunlop and Andrew Dunlop, the two brothers of the defendant in the proceedings in the United States, Mr Cameron Dunlop. The brothers are co-executors and beneficiaries of the estate of the late Josie Dunlop, the mother of the three men. 5I have considered the terms of the attachment to the request, which in each case is mirrored in the schedule to the subpoena sought to be issued. In each case, two of the paragraphs in the schedule relate to individual properties which, according to the will of the late Josie Dunlop, were left not to the defendant in the American proceedings but to one or other of the brothers Andrew and Stuart. Upon my raising that issue with Mr Mantziaris on behalf of the applicant, he indicated that he would not press those paragraphs of the schedules. Save for that exception, I am satisfied that the terms of the schedules appear to conform with the requirements of a subpoena in this jurisdiction. I say that, of course, without having heard from any contradictor to the application and necessarily without prejudice to any later application any of the recipients of the subpoenas may be advised to bring in respect of production of the documents. 6The power of the Court to make an order under s 33 applies if an application is made under s 32 of the Act. Under that section it is a requirement that this Court be satisfied 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. 7I am satisfied that the three requests are made by the judge of the Fairfax County Virginia Circuit Court to whom I have referred. I am also satisfied from the terms of her Honour's request that the evidence to which the application relates is to be obtained for the purposes of the proceedings instituted before that Court between Laura and Cameron Dunlop. 8It is relevant also to refer to the provisions of s 33(6) of the Evidence on Commission Act, which prohibits the making of an order under s 33 in the nature of discovery. As I have already indicated, I have considered the terms of the schedules to the subpoenas against that prohibition and I am satisfied, at least at this stage, that it is appropriate to make orders providing for the issue of the subpoenas. 9The third request relates to Varden Pty Limited, a company the shares in which are included in the estate of the late Josie Dunlop. I have considered the terms of the schedule proposed for the subpoena to that entity. It may be observed that the quantity of documents sought under each subpoena may be considerable but that is something as to which one can form no opinion at this stage. 10In all the circumstances, I am satisfied that it is appropriate to make orders giving effect to the three letters of request issued by the Circuit Court of Fairfax County Virginia by granting leave to the plaintiff in the summons, Laura Dunlop, to file and serve the three subpoenas annexed as annexures one, two and four to the summons with the deletion of the paragraphs in the schedules to annexures one and two referred to in these reasons. 11In order to afford the recipients of the subpoenas adequate opportunity to consider their position in respect of the subpoenas and to collate the documents sought (which, as noted, may be considerable), I propose to direct that the subpoenas be served as promptly as possible. 12The Court makes the following orders: 1An order pursuant to section 33 of the Evidence on Commission Act 1995 (NSW), giving effect to the three Letters of Request issued on 19 April 2013 by the Circuit Court of Fairfax County, Virginia, in the United States of America (reproduced in Exhibits DCV-2 to DCV-4 to the Affidavit of Dion Constantine Vertzayas sworn on 2 May 2013). 2An order that leave be granted to the plaintiff to file and serve three subpoenas in the form of the documents which appear as Annexures 1, 2 and 4 to this Summons save that - a.the time for the service of the subpoenas be abridged to 14 May 2013; and b.paragraphs 10-11 of the Schedules to Annexures 1 and 2 be deleted. 3An order that the documents to be produced pursuant to the subpoenas in paragraph 2, be returned to the Court on or before 24 May 2013.