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The extended reach of the law: obtaining evidence from Australian witnesses for foreign civil proceedings

A recent decision of the New South Wales Supreme Court offers a reminder of the procedures available in Australia to support foreign civil proceedings. 

In Nanotech Industrial Solutions Inc v Nanoteko Pty Ltd ([2020] NSWSC 1285), the applicant sought leave of the Court for an examination of witnesses and the issue of subpoenas to give evidence and produce documents to two persons resident in New South Wales (witnesses) for use in civil proceedings in the District Court of New Jersey in the United States (US proceedings). The Court granted leave at an ex parte hearing on 3 September 2020. Reasons for judgment were published on 22 September 2020.

The US proceedings concerned a dispute arising out of an exclusive distribution agreement for petroleum additives in Australia, New Zealand and Papua New Guinea. In those proceedings, Nanoteko Pty Ltd (Nanoteko) prosecutes a claim against Nanotech Industrial Solutions Inc (Nanotech) for breaches of the distribution agreement. Nanotech denies the claims and counterclaims for breach of contract, breach of an implied covenant of good faith and unjust enrichment. The evidence before the Supreme Court in support of the application included a copy of the Complaint and Jury Demand filed in the US proceedings.

By its application in the New South Wales Supreme Court, Nanotech sought an examination of the witnesses on a date to be fixed in 2021 and leave to issue Subpoenas to Attend to Give Evidence and Produce. The application was supported by affidavit evidence, including the matters on which counsel in the US proceedings sought to examine the witnesses. The application included a draft form of subpoenas identifying documents required to be produced for the US proceeding. The application was also supported by Commissions for the Out of State Examination of the witnesses together with letters of request issued out of the US court.

As the Court observed in the judgment, the Supreme Court ‘has the power under sections 32 and 33 of the Evidence on Commission Act 1995 (NSW) to make provision for the examination of Australian citizens and to compel them to produce documents for the purposes of proceedings outside of Australia’. There are three criteria to be satisfied before orders will be made to this effect. 

  • First, the application must be made pursuant to letters of request issued outside of New South Wales. Letters of request are a formal document whereby a court in one jurisdiction requests assistance in obtaining evidence from a court in another jurisdiction.

  • Secondly, the evidence must be required for foreign instituted proceedings.

  • Thirdly, the foreign proceedings must be civil proceedings.

The Court in this case was satisfied that all three criteria were met. 

The Court referred to an earlier decision of Jonathan Paul Eyewear, Inc ([2015] NSWSC 134), where the Court had granted orders for an examination of a witness in New South Wales for use in proceedings instituted in the County Court of Texas. In that case, the examiner appointed was a member of the New South Wales Bar with the appointment made in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Rule 24.3 of the UCPR provides that ‘for the purposes of any proceedings, the court may make an order for the examination of a person, otherwise at trial, at any place […]’. The order must nominate the examiner and may specify the time of the examination.

Unexpectedly (given the restrictions imposed by COVID-19), and unlike the circumstances in Jonathan Paul Eyewear where US counsel sought to attend an examination by video, the US attorneys in this case sought to attend the examination in person. 

The Court granted Nanotech’s application and made orders appointing a named examiner pursuant to the UCPR, concerning the timing and place of the examination and identifying the matters on which the witnesses were to be examined. Pursuant to the orders, US counsel representing the parties in the US proceeding were permitted to attend the examination either in person or by video conference.

The decision reminds us that there are procedures available – which, provided the relevant criteria are satisfied, are relatively straightforward – to assist parties to foreign instituted civil proceedings who require either witness testimony or documents from an Australian citizen for use in those foreign proceedings. 

Furthermore, even where there are no restrictions such as those imposed as a consequence of COVID-19, orders made by the courts can accommodate the attendance of overseas counsel at the examination by video ensuring that, to the extent possible, the evidence is obtained efficiently and in the presence of those responsible for the conduct of the foreign civil proceeding.


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Litigation and Dispute Resolution

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