Vitarich Laboratories v Alan Chen (ex parte) [2012] NSWSC 746

Vitarich Laboratories v Alan Chen (ex parte) [2012] NSWSC 746

The Court was satisfied that s 33 of the Evidence on Commission Act 1995 empowered it to make orders giving effect to the foreign Letter of Request for Mr Chen's examination and production of documents, but the subpoena to produce could not issue in its proposed form because some paragraphs were inconsistent with the limits on subpoenas and s 33(6); leave was therefore granted only on deletion of specified paragraphs.

Jurisdiction
Australia
Judgment Date
29 May 2012
Procedural Posture
Application by Summons for Orders Pursuant to S 33 of the Evidence on Commission Act 1995 / Ex Tempore Judgment on Ex Parte Application
Outcome
Application granted in part; leave granted to issue subpoenas subject to deletion of specified paragraphs and ancillary examination orders made.
Legal Topics
['evidence on Commission' 'letter of Request From Foreign Court' 'subpoena to Attend and Give Evidence' 'subpoena to Produce Documents' 'examination of Witness']
['evidence' 'civil Procedure'] ['evidence on Commission' 'letter of Request From Foreign Court' 'subpoena to Attend and Give Evidence' 'subpoena to Produce Documents' 'examination of Witness']

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Procedural Posture

Application by Summons for Orders Pursuant to S 33 of the Evidence on Commission Act 1995 / Ex Tempore Judgment on Ex Parte Application

Legal Issues

  1. 1 ['Whether the Court should make orders under s 33 of the Evidence on Commission Act 1995 to give effect to a Letter of Request from a United States court for the attendance and examination of Mr Alan Chen and the production of documents.' "Whether the proposed subpoena to produce was permissible having regard to s 33(6) of the Evidence on Commission Act 1995 and the Court's usual principles concerning subpoenas."]

Ratio Decidendi

The Court was satisfied that s 33 of the Evidence on Commission Act 1995 empowered it to make orders giving effect to the foreign Letter of Request for Mr Chen's examination and production of documents, but the subpoena to produce could not issue in its proposed form because some paragraphs were inconsistent with the limits on subpoenas and s 33(6); leave was therefore granted only on deletion of specified paragraphs.

Court Disposition

Application granted in part; leave granted to issue subpoenas subject to deletion of specified paragraphs and ancillary examination orders made.

Orders

  • ['The plaintiffs be granted leave to file and serve upon Mr Alan Chen a subpoena to attend and give evidence, and a subpoena to produce, in the form annexed to the affidavit of Kirk Sanjay Simmons sworn 30/4/12 and marked "J", providing that paragraphs 2, 10, 19, 20, 22, 23, 25, 27 and 28 are deleted therefrom.'...