Application by the Attorney-General in and for the State of New South Wales under the Evidence on Commission Act 1995 [2016] NSWSC 1086

Application by the Attorney-General in and for the State of New South Wales under the Evidence on Commission Act 1995 [2016] NSWSC 1086

The Court was satisfied that the request came from the People's Court of Phu Yen Provence in Vietnam, that the evidence was sought for instituted civil dissolution of marriage proceedings between Ms Huin Thi Loan and Mr Sathia Ung, and that the proceedings did not relate to the commission of an offence. The fact that Vietnam was not a signatory to the Hague Convention did not preclude an order under the Evidence on Commission Act 1995 (NSW), and comity supported assisting the foreign court. The application was therefore granted and Mr Ung was ordered to be examined.

Jurisdiction
Australia
Judgment Date
08 August 2016
Procedural Posture
Application Under S 33 of the Evidence on Commission Act 1995 (nsw) for Examination of a Person Pursuant to a Foreign Court Request / Ex Tempore Judgment on Summons
Outcome
Application granted.
Legal Topics
['evidence on Commission' 'foreign Court Letter of Request' 'examination of Witness' 'comity' 'hague Convention on the Taking of Evidence in Civil and Commercial Matters 1970']
['evidence' 'civil Procedure' 'international Judicial Assistance'] ['evidence on Commission' 'foreign Court Letter of Request' 'examination of Witness' 'comity' 'hague Convention on the Taking of Evidence in Civil and Commercial Matters 1970']

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Procedural Posture

Application Under S 33 of the Evidence on Commission Act 1995 (nsw) for Examination of a Person Pursuant to a Foreign Court Request / Ex Tempore Judgment on Summons

Legal Issues

  1. 1 ['Whether the request was issued by a court exercising jurisdiction in a place outside New South Wales within s 32(1)(a) of the Evidence on Commission Act 1995 (NSW).' 'Whether the evidence was to be obtained for proceedings instituted before the requesting court within s 32(1)(b) of the Evidence on Commission Act 1995 (NSW).' 'Whether the overseas proceedings related to the commission of an offence so as to exclude the operation of Part 4 under s 32(2) of the Evidence on Commission Act 1995 (NSW).' "Whether Vietnam's non-signatory status to the Hague Convention precluded the order sought."]

Ratio Decidendi

The Court was satisfied that the request came from the People's Court of Phu Yen Provence in Vietnam, that the evidence was sought for instituted civil dissolution of marriage proceedings between Ms Huin Thi Loan and Mr Sathia Ung, and that the proceedings did not relate to the commission of an offence. The fact that Vietnam was not a signatory to the Hague Convention did not preclude an order under the Evidence on Commission Act 1995 (NSW), and comity supported assisting the foreign court. The application was therefore granted and Mr Ung was ordered to be examined.

Court Disposition

Application granted.

Orders

  • ['Pursuant to s 33(3) of the Evidence of Commission Act 1995 (NSW), Mr Sathia Ung of 9/88 Koonoona Avenue, Villawood NSW 2163 ("Mr Ung") is to be examined.' 'A copy of this Order, the Summons and Affidavit in Support is to be served on Mr Ung with a Subpoena to Attend to Give Evidence.' 'The Registrar of this...