Evidence on Commission Act 1995 (NSW)

Evidence on Commission Act 1995 No 26

An Act in relation to the taking of evidence outside the State for the purposes of proceedings in the State and in relation to the taking of evidence in the State for the purposes of proceedings outside the State.

Part 1 Preliminary

1 Name of Act This Act is the Evidence on Commission Act 1995.

2 Commencement This Act commences on a day or days to be appointed by proclamation.

3 Definitions Expressions used in this Act that are defined in the Evidence Act 1995 have the meanings set out in that Act.

Part 2 Examination of witnesses abroad

Division 1 Preliminary

4 Definitions In this Part— examination includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by a court under this Part. inferior court means a court of the State (other than a superior court) except when exercising federal jurisdiction. superior court means— (a) the Supreme Court, and (b) the Land and Environment Court, and (c) the Industrial Relations Commission in Court Session, and (d) (Repealed) (e) the Dust Diseases Tribunal of New South Wales, and (f) the District Court, except when exercising federal jurisdiction.

5 References to evidence taken in an examination A reference in this Part to evidence taken in an examination includes a reference to— (a) a document produced at the examination, and (b) answers made to any written interrogatories presented at the examination, whether the answers are made in writing or are made orally and put in writing.

Division 2 Proceedings in superior courts

6 Orders for taking evidence abroad (1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order relating to a person outside Australia— (a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint, or (b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia, or (c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of a person or cause it to be taken. (2) In deciding whether it is in the interests of justice to make such an order, the matters to which the superior court is to have regard include the following— (a) whether the person is willing or able to come to the State to give evidence in the proceeding, (b) whether the person will be able to give evidence material to any issue to be tried in the proceeding, (c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by making or refusing to make the order.