FAIRFAX FINANCIAL HOLDINGS LIMITED & ANOR [2011] NSWSC 223

FAIRFAX FINANCIAL HOLDINGS LIMITED & ANOR [2011] NSWSC 223

The re-drafted subpoenas sufficiently particularise the documents sought and do not amount to general discovery. The requirements of s.32 and s.33 of the Evidence on Commission Act 1995 (NSW) are satisfied and the orders sought are appropriate to give effect to the foreign court's letter of request for evidence for use at trial in civil proceedings.

Parties
Plaintiff: Fairfax Financial Holdings Limited; Plaintiff: Crum & Forster Holdings Corp; Proposed Witness: John Hempton; Proposed Non Party for Production of Documents: Platinum Asset Management Limited
Jurisdiction
Australia
Judgment Date
30 March 2011
Procedural Posture
Application for Evidence on Commission / Judgment on Application for Assistance to Obtain Evidence for Foreign Proceedings
Outcome
Orders made granting application for assistance to obtain evidence for foreign proceedings, including leave to issue subpoenas and provision for examination of witness.
Legal Topics
Evidence on Commission, Subpoena Particularity, Production of Documents
Civil Procedure International Judicial Assistance Evidence on Commission Subpoena Particularity Production of Documents

Case Brief

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Parties

Fairfax Financial Holdings Limited

Plaintiff

Crum & Forster Holdings Corp

Plaintiff

John Hempton

Proposed Witness

Platinum Asset Management Limited

Proposed Non Party for Production of Documents

Procedural Posture

Application for Evidence on Commission / Judgment on Application for Assistance to Obtain Evidence for Foreign Proceedings

Legal Issues

  1. 1 Whether the Court should make orders for examination and production of documents for use in foreign proceedings under s.32 and s.33 of the Evidence on Commission Act 1995 (NSW)
  2. 2 Whether requested subpoenas for production of documents satisfy the statutory requirement of particularity or amount to discovery
  3. 3 Whether the evidence sought falls within the scope of assistance the Supreme Court may grant for foreign civil proceedings

Ratio Decidendi

The re-drafted subpoenas sufficiently particularise the documents sought and do not amount to general discovery. The requirements of s.32 and s.33 of the Evidence on Commission Act 1995 (NSW) are satisfied and the orders sought are appropriate to give effect to the foreign court's letter of request for evidence for use at trial in civil proceedings.

Court Disposition

Orders made granting application for assistance to obtain evidence for foreign proceedings, including leave to issue subpoenas and provision for examination of witness.

Orders

  • Confidential exhibits admitted and restricted from inspection absent further order.
  • Court grants effect to the foreign request by issuing orders per Exhibit MJB:1.