Application of Monier Inc [2009] NSWSC 986

Application of Monier Inc [2009] NSWSC 986

The subpoena did not specify 'particular documents' as required by s 33(6)(b) of the Evidence on Commission Act 1995, instead seeking classes or categories, and could not be remoulded by the Court without fundamentally changing the nature of the foreign court's request. Therefore, the subpoena must be set aside.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Application to Set Aside Subpoena for Production of Documents Under the Evidence on Commission Act 1995, on Request From a Foreign Court / Ruling on Notice of Motion to Set Aside Subpoena
Outcome
Boral's application to set aside the subpoena succeeded.
Legal Topics
['production of Documents' 'letters of Request' 'particularity of Subpoena' 'hague Convention on Evidence' 'oppression in Discovery']
['civil Procedure' 'international Legal Assistance'] ['production of Documents' 'letters of Request' 'particularity of Subpoena' 'hague Convention on Evidence' 'oppression in Discovery']

Case Brief

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Procedural Posture

Application to Set Aside Subpoena for Production of Documents Under the Evidence on Commission Act 1995, on Request From a Foreign Court / Ruling on Notice of Motion to Set Aside Subpoena

Legal Issues

  1. 1 ["Whether the subpoena issued at the request of a foreign court satisfies the requirement of specifying 'particular documents' under s 33(6)(b) of the Evidence on Commission Act 1995" 'Whether the subpoena amounts to a fishing expedition rather than obtaining evidence for trial' 'Whether the subpoena is oppressive to Boral']

Ratio Decidendi

The subpoena did not specify 'particular documents' as required by s 33(6)(b) of the Evidence on Commission Act 1995, instead seeking classes or categories, and could not be remoulded by the Court without fundamentally changing the nature of the foreign court's request. Therefore, the subpoena must be set aside.

Court Disposition

Boral's application to set aside the subpoena succeeded.

Orders

  • ['Orders 1 to 6 made by Kirby J on 24 June 2009 are discharged.' 'The subpoena to produce documents issued to Boral at the request of Monier on 24 June 2009 is set aside.' "Monier is to pay Boral's costs of the notice of motion."]