British American Tobacco Australia Services Limited v Sharon Y Eubanks for the United States of America; Nicholas Basil Cannar v Sharon Y Eubanks for the United States of America; British American Tobacco (Investments) Limited v Sharon Y Eubanks for the United States of America

(2004) 60 NSWLR 483; [2004] NSWCA 158

NSW Court of Appeal

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Catchwords

1. Evidence
2. › Evidence on commission
3. › Requests by foreign courts
4. › Meaning of 'evidence'
5. › Whether confined to material admissible at trial or extends to material leading to discovery of evidence
6. › Evidence on Commission Act 1995 (NSW), ss 32, 33
1. Evidence
2. › Evidence on commission
3. › Requests by foreign courts
4. › Discretion to give effect to letters of request
5. › Weight to be given to terms of letters of request
6. › Whether evidence sought for purposes of foreign proceedings
7. › Whether court must be satisfied evidence admissible and to be admitted at trial
8. › Evidence on Commission Act 1995 (NSW), ss 32, 33
1. Evidence
2. › Evidence on commission
3. › Requests by foreign courts
4. › Discretion
5. › Breadth of inquiry
6. › Possible exposure to civil or criminal proceedings
7. › Privilege of witnesses
8. › Use-immunity granted in jurisdiction of requesting court
9. › Evidence on Commission Act 1995 (NSW), s 34
1. Evidence
2. › Legal professional privilege
3. › Loss of privilege
4. › Consent and related matters
5. › Where documents in public domain
6. › Whether implied consent to disclosure by third party
7. › Where explicit consent to procedure whereby documents could become publicly available
8. › Evidence Act 1995 (NSW), s 122(4)

Quick Take

The word 'evidence' in the Evidence on Commission Act 1995 (NSW) is confined to material to prove or disprove facts, not material that may lead to the discovery of evidence. A court need only be satisfied of the apparent relevance of evidence sought in a letter of request, not its admissibility. A party that voluntarily enters a consent judgment containing a procedure for public disclosure of documents impliedly consents under s 122(4) of the Evidence Act 1995 to disclosure in accordance with that procedure, even if it exercises and exhausts its rights to object. There is no general rule in NSW requiring joinder of a third party claiming privilege where a witness is to be examined; the third party may protect its interests by attending the examination.