Evidence on Commission Act 1995

This Act is the Evidence on Commission Act 1995.

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

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

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—

the Supreme Court, and

the Land and Environment Court, and

the Industrial Relations Commission in Court Session, and

(Repealed)

the Dust Diseases Tribunal of New South Wales, and

the District Court,

except when exercising federal jurisdiction.

A reference in this Part to evidence taken in an examination includes a reference to—

a document produced at the examination, and

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.

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—

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

for issue of a commission for examination of the person on oath or affirmation at any place outside Australia, or

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.

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—

whether the person is willing or able to come to the State to give evidence in the proceeding,

whether the person will be able to give evidence material to any issue to be tried in the proceeding,

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.

If a superior court makes an order of the kind referred to in section 6 (1) (a) or (b), the court may, at the time of making the order or at a later time, give such directions as it thinks just relating to the procedure to be followed in relation to the examination, including directions about—

the time, place and manner of the examination, and

any other matter that the court thinks relevant.

If a superior court makes an order of the kind referred to in section 6 (1) (c), the court may include in the order a request about any matter relating to taking that evidence, including any of the following matters—

examination, cross-examination or re-examination of the person, whether the person’s evidence is given orally, on affidavit or otherwise,

attendance of the Australian legal practitioner representing each party to the proceeding in question and participation of those persons in the examination in appropriate circumstances,

any matter prescribed by the regulations.

The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—

a person’s evidence taken in an examination held as a result of an order made under section 6, or

a record of that evidence.

Evidence of a person so tendered is not admissible if—

it appears to the court’s satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or

the evidence would not have been admissible had it been adduced at the hearing of the proceeding.

A superior court may, on the application of a party to a proceeding before an inferior court, exercise the same power to make an order of the kind referred to in Division 2 for the purpose of that proceeding as the superior court has under that Division for the purpose of a proceeding in the superior court.

The superior court may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—

a person’s evidence taken in an examination held as a result of an order made under section 9, or

a record of that evidence.

Evidence of a person so tendered is not admissible if—

it appears to the court’s satisfaction at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or

the evidence would not have been admissible had it been adduced at the hearing of the proceeding.

If, under section 9, a superior court makes an order in relation to a committal proceeding, it may include in the order a direction that evidence taken outside Australia under the order may, subject to this Division, be tendered in a proceeding that is—

a criminal proceeding that results from the committal proceeding, or

a related civil proceeding.

If, under section 6 or 9, a superior court makes an order in relation to a criminal proceeding (other than a committal proceeding), it may include in the order a direction that evidence taken outside Australia under the order may, subject to this Division, be tendered in a proceeding that is a related civil proceeding.

In this section—

related civil proceeding, in relation to a criminal proceeding, means any civil proceeding arising from the same subject-matter from which the criminal proceeding arose, and, in particular, includes—

a proceeding under the Confiscation of Proceeds of Crime Act 1989, or

a proceeding for the recovery of tax, or of any duty, levy or charge payable to the State.

This section applies to a proceeding to which a direction included in an order under section 6 or 9 relates.

The court before which the proceeding takes place may, on such terms (if any) as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding—

a person’s evidence taken in an examination held as a result of the order under section 6 or 9, or

a record of that evidence.

A person’s evidence so tendered is not admissible if—

it appears to the court’s satisfaction at the hearing of the subsequent proceeding that the person is in Australia and is able to attend the hearing, or

the evidence would not have been admissible had it been adduced at the hearing of the subsequent proceeding.