Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777

Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 777

CSC was nominated by the Delaware Court of Chancery and the threshold requirements of ss 32 and 33 were satisfied, but the Court declined to order Mr Waldron's examination because the topics substantially overlapped with pending criminal proceedings against him and there was a substantial likelihood that an examination before trial would alter the fundamental nature of the criminal process, with little practical utility given privilege and uncertainty about use of any protected evidence. The Court ordered production only of specified particular documents still pressed by CSC, because such production would not have the same potential to alter the criminal trial where Mr Waldron could...

Jurisdiction
Australia
Judgment Date
25 June 2019
Procedural Posture
Application Under S 33 of the Evidence on Commission Act 1995 (nsw) to Give Effect to a Letter of Request From the Court of Chancery of the State of Delaware for Production of Documents by and Examination of Mr Waldron / Notice of Motion Heard; Procedural Ruling on Contested Application
Outcome
Order for the examination of Mr Waldron not made. Order for production of documents to be made in part. Parties directed to bring in agreed short minutes as to form of orders for production and costs.
Legal Topics
['evidence on Commission' 'letter of Request' 'hague Convention' 'examination of Witness for Foreign Civil Proceedings' 'production of Documents' 'privilege Against Self Incrimination' 'pending Criminal Proceedings' 'particular Documents']
['evidence' 'civil Procedure' 'private International Law' 'criminal Procedure'] ['evidence on Commission' 'letter of Request' 'hague Convention' 'examination of Witness for Foreign Civil Proceedings' 'production of Documents' 'privilege Against Self Incrimination' 'pending Criminal Proceedings' 'particular Documents']

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Procedural Posture

Application Under S 33 of the Evidence on Commission Act 1995 (nsw) to Give Effect to a Letter of Request From the Court of Chancery of the State of Delaware for Production of Documents by and Examination of Mr Waldron / Notice of Motion Heard; Procedural Ruling on Contested Application

Legal Issues

  1. 1 ['Whether CSC had standing to bring the application under UCPR r 52.1.' 'Whether the requirements of ss 32 and 33 of the Evidence on Commission Act 1995 (NSW) were satisfied.' 'Whether the Court should order the examination of Mr Waldron despite pending criminal proceedings in New South Wales and the privilege against self-incrimination.' 'Whether Mr Waldron should be required to produce particular documents sought by the letter of request.' 'Whether paragraphs 27-30 of Exhibit 3 to the letter of request complied with s 33(6) of the Evidence on Commission Act 1995 (NSW).']

Ratio Decidendi

CSC was nominated by the Delaware Court of Chancery and the threshold requirements of ss 32 and 33 were satisfied, but the Court declined to order Mr Waldron's examination because the topics substantially overlapped with pending criminal proceedings against him and there was a substantial likelihood that an examination before trial would alter the fundamental nature of the criminal process, with little practical utility given privilege and uncertainty about use of any protected evidence. The Court ordered production only of specified particular documents still pressed by CSC, because such production would not have the same potential to alter the criminal trial where Mr Waldron could...

Court Disposition

Order for the examination of Mr Waldron not made. Order for production of documents to be made in part. Parties directed to bring in agreed short minutes as to form of orders for production and costs.

Orders

  • ['Order for the examination of Mr Waldron not made.' 'A subpoena should be issued for the documents in paragraphs 1-6, other than paragraphs 6(d)-6(g), 7-16, 18-22 and 26 of Exhibit 3 to the letter of request.' 'Paragraphs 27-30 of the categories of production in the letter of request should not be permitted.' 'The...