Application of the Attorney General in and for the State of New South Wales under s 32 of the Evidence on Commission Act 1995 [2015] NSWSC 1149

Supreme Court New South Wales

Medium Neutral Citation: Application of the Attorney General in and for the State of New South Wales under s 32 of the Evidence on Commission Act 1995 [2015] NSWSC 1149 Hearing dates: 6 August 2015 Decision date: 06 August 2015 Jurisdiction: Common Law Before: Button J Decision: See paragraph 18. Catchwords: EVIDENCE – application under the Evidence on Commission Act 1995 (NSW) – civil proceedings on foot in Republic of Altai – applicant seeking production of documents relating to a motorcycle and bank account – leave granted to issue and serve subpoenas to produce Legislation Cited: Evidence on Commission Act 1995 (NSW), ss 32, 33 Family Law Act 1975 (Cth) Uniform Civil Procedure Rules 2005 (NSW), r 52.1 Category: Procedural and other rulings Parties: Attorney General of the State of New South Wales (Plaintiff) Representation: Counsel:

Solicitors: Crown Solicitor's Office (Plaintiff) File Number(s): 2015/219176

ex tempore Judgment 1. The plaintiff moves on a summons filed on 24 July 2015, supported by an affidavit of a solicitor from the Crown Solicitor's Office sworn on 27 July 2015. 2. To state things succinctly, this is an application under the Evidence on Commission Act 1995 (NSW) (the Act). The affidavit demonstrates that in the Republic of Altai there is a civil case going on in a court, and there has been a request on the part of a Federal Judge in Altai for provision of evidence from Australia. It is quite clear that the case is a civil case, and it seems that it could be very roughly equated with proceedings in Australia under the Family Law Act 1975 (Cth) with regard to property. 3. Mr Tynan for the plaintiff has explained that I need to focus on ss 32 and 33 of the Act. I also need to bear in mind r 52.1 in the Uniform Civil Procedure Rules 2005 (NSW). 4. What is sought is details from the Roads and Maritime Services with regard to a particular motorcycle said to be associated with one of the litigants in Altai, and what is also sought is the transaction history of a particular bank account with the Commonwealth Bank of Australia that is said, again, to be associated with one of the litigants. 5. It is appropriate I think very briefly to work through s 32 and s 33. I shall not work through the rule to which I was invited at the same time. Suffice to say, it establishes that the plaintiff is the proper applicant, and secondly, as one might expect, such an application can be made ex parte. 6. Turning first to s 32(1)(a), I am satisfied, based upon the evidence that has been placed before me, that the application has been made in pursuance of a request issued by a court exercising jurisdiction in a place outside New South Wales. As I say, there has been a request translated from the Russian language into the English language from a Federal Judge in the Republic of Altai within the Russian Federation. 7. Pursuant to s 32(1)(b), I need to be satisfied that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted or which are contemplated. Suffice to say I am satisfied proceedings are on foot. 8. It can be seen, by way of s 32(2), that the regime under discussion does not apply to prosecutions of alleged offences, except in certain limited circumstances. But that need not trouble me, because, as I said, it is quite clear that these are civil proceedings. 9. Section 33(1) permits me to make the orders sought to give effect to the request. I should say at this stage I am satisfied that to do so is soundly appropriate. 10. It can also been seen, by way of s 33(2), that the order can be rather specific with regard to calling upon persons to do particular things, and again, to the extent the proposed orders do that, I regard that as soundly appropriate. 11. It can be seen that what is sought is two subpoenas, in effect, for the production of documents, which falls squarely within s 33(3)(b). 12. It can also been seen that, pursuant to s 33(4), I am restricted to orders that could be made if the proceedings were conducted in this Court, and of course a subpoena or an order for production of documents is something that soundly falls within this Court's powers. 13. It can be seen that what is proposed does not to fall foul of the prohibition in s 33(6)(a). 14. Nor to my mind, does it fall foul of the prohibition in s 33(6)(b), and I say that because what is sought is highly specific. As I said, it relates to a particular motor cycle and a particular bank account. I consider that what is proposed certainly has sufficient particularity. 15. Finally, as for s 33(7), that has no application because it is a subpoena to produce documents, not a subpoena to attend court and give evidence. Accordingly, there is no relevance in that section. 16. In short, I am satisfied in both a general way and in a particular way that the provisions of the Act have been complied with. It seems to me that the orders sought in the summons are soundly based, in order to give effect to a perfectly reasonable request from a foreign court. 17. For the foregoing reasons, I propose to make the orders. As they are lengthy, I shall not read them out. Because of the length of the orders, I simply propose to make those contained in the short minutes of order that were handed up a moment ago, and bear the signature of the solicitor appearing for the applicant with today's date. 18. [ORDERS MADE] 1. Pursuant to s 33(3)(b) of the Evidence on Commission Act 1995 (NSW) that the Roads and Maritime Services produce documents that evidence or record that Motorcycle G 650 Xcountry BMW, VIN: XXXXXXXXXX, number plate XXXXXX is, or was, registered to Filipas Mikhail Vasilevich. 2. Leave is granted to the plaintiff to issue and serve a subpoena to produce addressed to The Proper Officer, Roads and Maritime Services, in the form annexed to the affidavit of Kenny Ng affirmed 27 July 2015 at Annexure B. 3. That any documents produced pursuant to the subpoena referred to in order 2 above be certified by a Registrar of this Court as documents produced by the Roads and Maritime Services in these proceedings. 4. Photocopy access is granted to the Plaintiff to any documents produced by the Roads and Maritime Services in these proceedings. 5. That at the time of service of the subpoena issued pursuant to order 2 above, the Roads and Maritime Services also be served with copies of: 1. this summons; 2. the affidavit of Kenny Ng affirmed 27 July 2015; and 3. the orders of the Court providing for the issue and service of the subpoena referred to above. 1. Pursuant to s 33(3)(b) of the Evidence on Commission Act 1995 (NSW) that Commonwealth Bank of Australia ("Commonwealth Bank") produce bank statements recording the account transactions, including deposits, made by Filipas Oxana Ivanovna in the period from October 2013 to 25 February 2015 in relation to the following bank account: Account owner: Mrs. Oxana Filipas Account type: XXXXXXXXXX BSB: XXXXXXXXXX Account number: XXXXXXXXXX SWIFT Code: XXXXXXXXXX Town Hall Branch, 546 George Street, Sydney, NSW, 2000 1. Leave is granted to the plaintiff to issue and serve a subpoena to produce addressed to The Proper Officer, Commonwealth Bank of Australia, in the form annexed to the affidavit of Kenny Ng affirmed 27 July 2015 at Annexure C. 2. That any documents produced pursuant to the subpoena referred to in order 7 above be certified by a Registrar of this Court as documents produced by the Commonwealth Bank in these proceedings. 3. Photocopy access is granted to the Plaintiff to any documents produced by the Commonwealth Bank in these proceedings. 4. That at the time of service of the subpoena issued pursuant to order two above, the Commonwealth Bank also be served with copies of: 1. this summons; 2. the affidavit of Kenny Ng affirmed 27 July 2015; and 3. the orders of the Court providing for the issue and service of the subpoena referred to above.