Pickles and Ors v Gratzon and Ors [2002] NSWSC 688

Pickles and Ors v Gratzon and Ors [2002] NSWSC 688

A Letter of Request from a foreign court seeking evidence from identified witnesses for use in a pending trial, which outlines the general relevance of their evidence to the issues, will ordinarily justify making orders for the taking of such evidence under the Evidence on Commission Act 1995 (NSW); strict particularity is not required and judicial discretion should, in the absence of discretionary bars, be exercised in favour of giving assistance. Procedural mechanisms exist to protect against improper use, and the mere possibility that the evidence may be used for broader purposes does not warrant setting aside. The orders and subpoenas in this case were therefore within power and...

Jurisdiction
Australia
Judgment Date
05 August 2002
Procedural Posture
Notice of Motion to Set Aside Subpoenas and Discharge Court Orders in Judicial Assistance for Foreign Proceedings / Ruling on Notice of Motion After Hearing
Outcome
Applicants' Notice of Motion to set aside orders and subpoenas is dismissed. Applicants to pay respondents' costs. Orders made for legal representation at examinations and procedural directions.
Legal Topics
['evidence on Commission' 'letters of Request/rogatory' 'setting Aside Subpoenas' 'foreign Court Assistance' 'pre Trial Discovery Limits' 'fiduciary Duties of Directors']
['evidence' 'international Judicial Assistance' 'civil Procedure'] ['evidence on Commission' 'letters of Request/rogatory' 'setting Aside Subpoenas' 'foreign Court Assistance' 'pre Trial Discovery Limits' 'fiduciary Duties of Directors']

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Procedural Posture

Notice of Motion to Set Aside Subpoenas and Discharge Court Orders in Judicial Assistance for Foreign Proceedings / Ruling on Notice of Motion After Hearing

Legal Issues

  1. 1 ['Whether the Supreme Court of New South Wales had power to give effect to a Letter of Request from the United States Bankruptcy Court for the taking of evidence from Australian witnesses' 'Whether subpoenas and orders issued pursuant to that Letter of Request should be set aside for want of specificity or as an impermissible fishing expedition/pre-trial discovery' "Whether, assuming the orders are within power, the Court's discretion should be exercised to set them aside"]

Ratio Decidendi

A Letter of Request from a foreign court seeking evidence from identified witnesses for use in a pending trial, which outlines the general relevance of their evidence to the issues, will ordinarily justify making orders for the taking of such evidence under the Evidence on Commission Act 1995 (NSW); strict particularity is not required and judicial discretion should, in the absence of discretionary bars, be exercised in favour of giving assistance. Procedural mechanisms exist to protect against improper use, and the mere possibility that the evidence may be used for broader purposes does not warrant setting aside. The orders and subpoenas in this case were therefore within power and...

Court Disposition

Applicants' Notice of Motion to set aside orders and subpoenas is dismissed. Applicants to pay respondents' costs. Orders made for legal representation at examinations and procedural directions.

Orders

  • ['The first and second applicants are entitled to be legally represented at the taking of their evidence (including by American attorneys, subject to compliance with local procedures).' 'Specific procedural directions concerning examination and objections (see detailed orders).' 'Examinations to commence not before...