Sykes v Richardson [2007] NSWSC 418

Sykes v Richardson [2007] NSWSC 418

The Wisconsin proceedings were not proceedings relating to the commission of an offence or alleged offence within s32(2) because, despite alleging conduct that would breach United States criminal law and seeking treble damages, they were civil proceedings brought by private parties, applying the civil standard of proof, seeking damages rather than fines or imprisonment, and incapable of establishing criminal liability or imposing criminal sanction. The foreign penal law principle was not engaged because the proceedings were not public proceedings for enforcement of United States criminal, regulatory or revenue law, and taking evidence for them was not a direct or indirect step in...

Jurisdiction
Australia
Judgment Date
01 May 2007
Procedural Posture
Motion to Set Aside an Ex Parte Order and Subpoena for Examination of a Witness Under the Evidence on Commission Act 1995 (nsw) for United States Civil Proceedings / Ruling on Question of Law
Outcome
The Court ruled that the Wisconsin proceedings were not proceedings relating to the commission of an offence or alleged offence within s32(2), and that the applicant's examination was not a direct or indirect step in enforcing United States penal law; discretionary grounds remained to be argued.
Legal Topics
['evidence on Commission' 'foreign Civil Proceedings' 'proceedings Relating to Offences' 'foreign Penal Law' 'treble Damages']
['practice and Procedure' 'evidence' 'private International Law'] ['evidence on Commission' 'foreign Civil Proceedings' 'proceedings Relating to Offences' 'foreign Penal Law' 'treble Damages']

Case Brief

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Procedural Posture

Motion to Set Aside an Ex Parte Order and Subpoena for Examination of a Witness Under the Evidence on Commission Act 1995 (nsw) for United States Civil Proceedings / Ruling on Question of Law

Legal Issues

  1. 1 ['Whether the Wisconsin civil proceedings seeking damages for an alleged conspiracy to manipulate copper futures prices in violation of the Sherman Antitrust Act were proceedings relating to the commission of an offence or an alleged offence within s32(2) of the Evidence on Commission Act 1995 (NSW).' 'Whether the examination of the applicant for use in the Wisconsin proceedings would be a direct or indirect step in the enforcement of a penal law of the United States.' 'Whether the definition of offence in the Evidence Act 1995 confined s32(2) to offences under Australian law.']

Ratio Decidendi

The Wisconsin proceedings were not proceedings relating to the commission of an offence or alleged offence within s32(2) because, despite alleging conduct that would breach United States criminal law and seeking treble damages, they were civil proceedings brought by private parties, applying the civil standard of proof, seeking damages rather than fines or imprisonment, and incapable of establishing criminal liability or imposing criminal sanction. The foreign penal law principle was not engaged because the proceedings were not public proceedings for enforcement of United States criminal, regulatory or revenue law, and taking evidence for them was not a direct or indirect step in...

Court Disposition

The Court ruled that the Wisconsin proceedings were not proceedings relating to the commission of an offence or alleged offence within s32(2), and that the applicant's examination was not a direct or indirect step in enforcing United States penal law; discretionary grounds remained to be argued.

Orders

  • ['Ruling of law in accordance with paragraph [25].']