Attorney General of New South Wales v TBD [2016] NSWSC 601 (4 May 2016)

Last Updated: 11 May 2016

Supreme Court New South Wales

Case Name:	Attorney General of New South Wales v TBD
Medium Neutral Citation:	[2016] NSWSC 601
Hearing Date(s):	04 May 2016
Date of Orders:	4 May 2016
Decision Date:	4 May 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. That pursuant to s. 33(3) of the Evidence on Commission Act 1995 (NSW) the witness, Mr Andrew Krzysztonia ("the Witness") of 54 Farm Road, Springwood, New South Wales, 2777, be examined. 2. That the Registrar of this Honourable Court be appointed as Examiner to conduct the examination of the Witness under rule 52.2 of the Uniform Civil Procedure Rules 2005 (NSW). 3. That a copy of the summons filed by the Plaintiff on 22 April 2016, the affidavit in support sworn by Greg Arthell Lerone Garrett on 21 April 2016 and these orders be served on the Witness, together with a Subpoena to Attend to Give Evidence. 4. That the proceedings of the examination be transcribed and a copy of the transcription provided to the Plaintiff.
Catchwords:	EVIDENCE – evidence on commission - s 33 Evidence on Commission Act 1995 (NSW) – request from Polish Court – Subpoena to Attend to Give Evidence
Legislation Cited:	Evidence on Commission Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Attorney General of New South Wales (Plaintiff) TBD (Defendant)
Representation:	Mr A Hill (Plaintiff) No appearance for Defendant
File Number(s):	2016/124096
Publication Restriction:	None

EX TEMPORE JUDGMENT

1. By summons filed in the registry of the court on 22 April 2016 the plaintiff, the Attorney General in and for State of New South Wales, seeks an order pursuant to s 33 of the Evidence on Commission Act 1995 (NSW) for evidence to be taken on commission at the request of the Poznan District Court in the Republic of Poland in relation to the matter of Staniewicz v Krzysztonia.
2. Read in support of the application is an affidavit of Greg Arthell Lerone Garrett dated 21 April 2016 and filed on 22 April 2016 in the Registry of the Court. Mr Garrett is a solicitor employed in the Office of the Crown Solicitor for New South Wales and has carriage of this particular matter.
3. Mr Garrett deposes that the plaintiff has consented to proceedings being commenced for the purposes of examining the witness pursuant to a request received from the Poznan District Court in the Republic of Poland, and the Crown Solicitor appears for the plaintiff to endeavour to effect the request.
4. Annexed to Mr Garrett's affidavit is a request made by the Poznan District Court in Poland. The form of the request is consistent with that specified by Article 1 of the convention of 18 March 1970, on the taking of evidence abroad in a civil or commercial matter. The request is multilingual. It has not, regrettably, been entirely translated. The request is expressed in what I take to be the Polish language, in French and in English but as noted, not all of the document has been fully translated.
5. The taking of evidence on commission is governed by the Evidence on Commission Act. Section 33 gives this court power to give effect to an application for assistance from a court of a foreign jurisdiction. An application of this nature may be made and the court may grant it subject to the Court being satisfied of certain things.
6. For this court to grant the order sought by the Attorney the Court must be satisfied of those things set out at ss 32(1)(a) and 32(1)(b) of the Evidence on Commission Act; that is, the Court must be satisfied that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside the State and, secondly, that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting courts or whose institution before that court is contemplated.
7. From the evidence adduced by the Attorney I am satisfied that the application is made pursuant to a request issued by the Poznan District Court, that being a court exercising jurisdiction in the Republic of Poland, a place outside the State. I am also satisfied that the evidence to which the application relates is to be obtained for the purpose of proceedings which have been instituted before the District Court in Poznan, it being the requesting court.
8. The nature of the proceedings that are before the Poznan District Court are referred to in the annexure to Mr Garrett's affidavit under a heading "Kind and the Subject of the Proceedings." Regrettably, this is one part of the standard form which has not been translated into English and so the precise nature of the proceedings which have been instituted before that court is something to be gleaned from other evidence; that is, the list of questions which has been provided by the Poznan District Court.
9. The list of questions are those proposed be asked of the witness in evidence taken on commission. There is a certified translation of the list of questions translated from the Polish language into English by Ewa Barycka. The questions make it plain that the nature of the proceedings before the District Court in Poznan, Republic of Poland, are civil proceedings relating to the testamentary disposition of a testator Zbigniew Krzysztof. It is apparent that the witness Andrew Krzyszton has, or may have, evidence which could be given in response to the questions proposed to be asked of him relevant to testamentary proceedings before the District Court at Poznan.
10. Having considered the evidence of Mr Garrett and the annexures to his affidavit I am satisfied of each of those things set out in ss 32(1)(a) and 32(1)(b) and accordingly, I am prepared to make the order that the Attorney seeks.
11. The orders that I make are as follows:
    • (1) Pursuant to s 33(3) of the Evidence on Commission Act, the witness Mr Andrew Krzysztonia of 54 Farm Rd, Springwood in the State of New South Wales, be examined.
    • (2) That the registrar of this court be appointed as examiner to conduct the examination of the witness under Rule 52.2 of the Uniform Civil Procedure Rules 2005 (NSW).
    • (3) That a copy of the summons filed by the plaintiff on 22 April 2016, the affidavit in support sworn by Greg Arthell Lerone Garrett on 21 April 2016 and these orders be served on the witness together with a subpoena to attend to give evidence.
    • (4) That the proceedings of the examination be transcribed and a copy of the transcription provided to the plaintiff. I note that a copy of the subpoena it is proposed to serve upon the witness has been provided to court and it is in an appropriate form.
12. Accordingly I will sign the orders.
13. These orders may be taken out forthwith.

**********