Indochina Medical Co Pty Ltd v Nicolai

[2013] NSWCA 436

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Evidence on commission
3. › Examination of witnesses abroad
4. › Commission for examination under s 6(1)(b)
5. › Whether commission may be issued for preliminary investigation and selective recording of facts in affidavits
6. › Distinction between taking evidence for trial and pre-trial information gathering
7. › Evidence on Commission Act 1995 (NSW), ss 6(1)(b), 8
1. Evidence
2. › Evidence on commission
3. › Letters of request
4. › Application under s 6(1)(c) for issue of letters of request to foreign judicial authorities
5. › Whether letters of request may be issued without specifying evidence to be obtained
6. › Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Arts 1, 3, 9, 17, 21
7. › Evidence on Commission Act 1995 (NSW), s 6(1)(c)
1. Private International Law
2. › International judicial assistance
3. › Taking of evidence abroad
4. › Hague Evidence Convention
5. › Scope of permitted conduct of commissioner in foreign country
6. › Distinction between evidence and discovery
7. › Blocking laws of France and Switzerland

Quick Take

A commission for examination under s 6(1)(b) of the Evidence on Commission Act 1995 (NSW) cannot be used to authorise a party's lawyer to conduct preliminary investigations abroad, selectively identify favourable facts, and prepare affidavits embodying only those facts. The statutory power is confined to the taking of evidence in the sense of material to be used at trial. Letters of request under s 6(1)(c) must specify, at least in general terms, the testimony sought, its relevance to the issues, and its intended use at trial; non-specific requests will be treated as impermissible fishing expeditions.