Supreme Court New South Wales

• Medium Neutral Citation: Application of Attorney General of New South Wales [2013] NSWSC 807
• Hearing dates: 12 June 2013
• Decision date: 12 June 2013
• Jurisdiction: Common Law
• Before: Slattery J

Decision

Leave to issue a subpoena granted.

• Catchwords: PROCEDURE - operation of Uniform Civil Procedure Rules 2005 r 52.1 - application to issue a subpoena under Evidence on Commission Act 1995 on request from the Superior Court of the County of Los Angeles, California - some delay in the application coming before the Court - requested documents relate to events which occurred over 34 years ago - search time must be allowed to subpoenaed party - production of documents by the date requested by the foreign court not practicable - alternative methods of reducing delays in the administration of the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters discussed - HELD: leave to issue a subpoena granted, date for the return of the subpoena in three weeks.
• Legislation Cited: Evidence on Commission Act 1995, s 32, s 33; Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters; Uniform Civil Procedure Rules 2005 r 52.
• Cases Cited: Re Cordova v Philips Roxane Laboratories Inc [1984] 2 NSWLR 327; First American Corporation v Sheikh Zayad Al-Nahyan [1998] 4 All ER 439; Application of Monier Inc [2009] NSWSC 986, (2009) 76 NSWLR 158; Re Fairfax Financial Holdings Limited and Anor [2011] NSWSC 223; Vitarich Laboratories v Alan Chen [2012] NSWSC 746.
• Texts Cited: S. Stuart Clark and Ch Harris, Obtaining Evidence in Australia for Use in the United States and other Hague Convention Countries, 73 Def. Counsel J, 235-2006
• Category: Procedural and other rulings
• Parties: Attorney General of New South Wales
• Representation: Counsel: D. Tynan; Solicitors: Crown Solicitor
• File Number(s): 2013/174518

EX TEMPORE Judgment

1 The Attorney-General in and for the State of New South Wales applies under the Evidence on Commission Act 1995 ("the Act"), ss 32 and 33, for orders to give effect to a letter of request from the Superior Court of the County of Los Angeles, in the State of California, in the United States of America.

2 I have decided to make the orders sought by issuing a subpoena to Westpac Banking Corporation Limited. But because of the slightly unusual circumstances of this case, and the time by which the documents are required, I will give an account of what has occurred for the assistance not only of the parties here, but of the requesting Court in the United States.

3 On 2 May this year Judge Malcolm H Mackey of the Superior Court of the County of Los Angeles sealed a request addressed to the Attorney-General's Department of the Commonwealth of Australia, under the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters (the Hague Convention).

4 The request sought the production of certain documents from Westpac Banking Corporation by 14 June 2013. But this matter is being heard before me today on 12 June 2013. I have decided that it is not possible to comply strictly with the time requirements of the request. Production of the documents by 14 June is now not practicable. But I will nevertheless exercise the court's power to issue a subpoena for the production of the documents requested.

5 The case in California relates to events that are said to have taken place a long time ago. The proceedings in the Superior Court of Los Angeles, Al Dix v Wells Fargo Bank NA (California Superior Court case BC466927) involve an allegation that in 1979 an employee of Wells Fargo Bank diverted to himself certain oil contract commissions payable to Mr Dix and sent from Westpac Bank ("Westpac") in Australia to Wells Fargo Bank in the USA in May that year. It is alleged: the Wells Fargo employee deposited those commissions into a separate account for his own personal use, and that when Mr Dix asked the bank about his commissions, he was told that the funds had never been sent to Wells Fargo. Wells Fargo contends in the US proceedings that the entity making the payment pursuant to the oil contract never sent the funds to Wells Fargo.

6 The parties to the US proceedings need to be in a position to ascertain whether there is evidence of transmission of the funds, or telexes authorising the transmission of funds, between Westpac and Wells Fargo Bank in May 1979, for use in a summary judgment contest scheduled for August this year, and possibly for a trial in October this year.

7 What is sought has been set out precisely in the letter of request, as the Hague Convention requires. The request seeks the following:

(1) Key-tested Telex sent from Westpac Bank to the attention of William Stowell, Vice President or "Sherry", Trust Department, Wells Fargo Bank, Beverly Hills Main Office, Trust Account No. 14/104122, sent between May 1, 1979 and June 1, 1979; and

(2) Wells Fargo's response to the key-tested telex, sent back to Westpac Bank.

8 It is apparent from this description that these documents were created approximately 34 years ago. It will no doubt take a little time for Westpac to locate the documents, given that 34 year gap, if they still exist. I should observe as a matter of Australian history that in 1979 Westpac was known as the Bank of New South Wales, and had a somewhat different corporate structure to what it does now.

9 The Court has power to make these orders under the Act ss 32 and 33. I am satisfied that an application has been made to the Supreme Court under s 32 in pursuance of a request on behalf of a Court exercising jurisdiction in a place outside this State, namely a Court in the State of California in the United States of America.

10 I am also satisfied from the text of the request that the evidence to which the application relates is to be obtained for the purposes of those proceedings and not for some impermissible investigatory purpose: cf. Re Cordova v Philips Roxane Laboratories Inc [1984] 2 NSWLR 327, at 333 and First American Corporation v Sheikh Zayad Al-Nahyan [1998] 4 AllER 439, at 448. Section 32 of the Act is therefore satisfied.

11 The Court has power under s 33(1) of the Act to make an order "to make provision for obtaining evidence in the State as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made".

12 This is a request for two documents. The "appropriate order" is one for the issuing of a subpoena for the production of documents to Westpac. Such a course is specifically authorised by the Act in s 33(3)(b).

13 I am also satisfied, as s 33(4) of the Act requires, that the steps to be taken would be steps that could be taken for the purposes of proceedings in this Court, were they to be commenced here.

14 However, in deciding what is an "appropriate" order to give effect to the request, I am not prepared to issue a subpoena returnable in two days' time, on 14 June 2013. It would not be possible for Westpac to comply with a subpoena within that tight timeframe.

15 Why it has taken quite so long for an order signed in California on 2 May 2013 to reach this court on 12 June 2013 is not entirely clear. But the material provided to the court by Mr Tynan on behalf of the Attorney-General, assists in understanding what has happened. The short chronology seems to be this; after the request was signed in the United States by Judge Mackey it was transmitted by the lawyers acting for Mr Dix, Mr Moses Lebovits of Daniels, Fine, Schonbuch and Lebovits, LLP. That request was apparently received by the Attorney-General's Department in Canberra on 23 May 2013. It was then transmitted on 28 May 2013 to the Attorney-General of New South Wales, where it was received on 29 May 2013.

16 The application was made very shortly afterwards. No criticism can be made, it seems to me, of any Australian authority in respect of the speed with which action has taken place on this request. The summons in these proceedings was filed on 6 June 2013 and was returnable before me today, 12 June 2013.

17 With this history all I can do is set a suitable date which would give Westpac enough time to respond. The subpoena should be made returnable for 5 July 2013. Adjusting the date to one later than that requested lies well within the court's power to make an "appropriate" order under the Act s 33.

18 But there is an alternative procedure to avoid the delays that have occurred here. Uniform Civil Procedure Rule 2005 r 52.1 provides for a mechanism that may be used under the Act when giving effect to the Hague Convention, as follows:

(1) Proceedings for an order under section 33 of the Evidence on Commission Act 1995 in relation to a matter pending before a requesting court may be commenced in the Supreme Court:

(a) by a person nominated for that purpose by the requesting court, or

(b) if no person is so nominated, by the Attorney General.

(2) In proceedings for such an order, no person is required to be joined as a defendant.

(3) If proceedings for such an order have been commenced in relation to a matter pending before a requesting court, any other application for such an order in relation to the same matter is to be made by notice of motion in the proceedings.

(4) Rules 52.2-52.5 have effect unless the Supreme Court otherwise orders.

19 It is not necessary for the Attorney General to commence the proceedings. Where documents are required urgently it is open for example to nominate a local legal practitioner to commence proceedings under the Act. Some authors have identified this as a common practice in Australia jurisdictions: S. Stuart Clark and Christina Harris, Obtaining Evidence in Australia for Use in the United States and other Hague Convention Countries, 73 Def. Counsel J, 235-2006. There are many recent examples of persons other than the Attorney General commencing proceedings under the Hague Convention in this State. Three of these are Application of Monier Inc [2009] NSWSC 986, (2009) 76 NSWLR 158, Re Fairfax Financial Holdings Limited and Anor [2011] NSWSC 223 and Vitarich Laboratories v Alan Chen [2012] NSWSC 746.

20 Accordingly I will make the following orders:

(1) That the plaintiff has leave to issue and serve a subpoena to produce to the proper officer, Westpac Bank in the form annexed to the affidavit of Rosa O'Connor affirmed 6 June 2013 at Annexure B which subpoena may be made returnable on 5 July 2013.

(2) That any documents produced pursuant to the subpoena referred to in order 1 be certified by a Registrar of this Court as documents produced by Westpac Bank in these proceedings.

(3) That at the time of service of the subpoena issued pursuant to order 1 above, Westpac Bank also be served with copies of:

(a) the Summons;

(b) The affidavit if Rosa O'Connor affirmed 6 June 2013;

(c) These orders of the Court.

(4) Amend the summons by changing in order 2 the date "21 December 2012" to "6 June 2013", and dispense with any requirement for the Attorney-General to file an amended summons to reflect this change.

(5) The matter will be returnable in the ordinary Registrar's list on 5 July 2013.

Decision last updated: 19 June 2013