Issues arising under foreign law

[2-6200] Filing of notice

A party who contends that an issue in proceedings in the Supreme Court is governed by foreign law must file and serve a “foreign law notice” setting out the relevant principles of foreign law and their application within six weeks: r 6.43(1)–(2).

A party served who disputes the principles of foreign law or their application must file and serve a “dispute as to foreign law notice” within eight weeks of service: r 6.43(3)–(4).

[2-6210] Orders

The Supreme Court may, on the application of one or more of the parties and with the consent of all the parties, order that proceedings be commenced in a foreign court in order to answer a question as to the principles of foreign law or their application: r 6.44(1).

The Supreme Court may on the application of one or more of the parties or of its own motion, order that the questions of foreign law be answered by a referee appointed in accordance with UCPR, Pt 20 Div 3: r 6.44(2). See Marshall v Fleming [2014] NSWCA 64.

See r 6.44(3) and (4) as to the content of the order to be made of directions that may be given.

[2-6220] Determination of issues arising in foreign court proceedings

Proceedings for determination of an issue of Australian law in respect of which the Supreme Court may exercise its jurisdiction and which is relevant to proceedings in a foreign court may be commenced by summons seeking a declaration of the answer to a question in the form determined by the foreign court.

[2-6230] Evidence obtained on commission for proceedings in another court or tribunal

A foreign court of tribunal may apply for an order for evidence to be obtained in NSW pursuant to Pt 4 of the Evidence on Commission Act 1995 (NSW) for the purposes of proceedings outside NSW. Conversely, the Act provides for the taking of evidence outside NSW for the purposes of proceedings in NSW. Part 4 enacts as a law of NSW the provisions of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 847 UNTS 231. Part 4 follows the terminology of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK) and has been adopted as uniform legislation in Australia.

If an application is made under s 32, the Supreme Court has power to make an order under s 33 for taking evidence on oath 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. The preconditions to the exercise of the court’s power are specified in s 32 of the Act. The order is not of an interlocutory nature.

The court may, under s 33(3), make an order:

(a) 

for the examination of witnesses, either orally or in writing,

(b) 

for the production of documents,

(c) 

for the inspection, photographing, preservation, custody or detention of any property,

(d) 

for the taking of samples of any property and the carrying out of any experiments on or with any property,

(e) 

for the medical examination of any person,

(f) 

without limiting para (e), for the taking and testing of samples of blood from any person.

The evidence permitted to be obtained under the Evidence on Commission Act in compliance with a request by a foreign court or tribunal is restricted to evidence for use in a trial, thereby excluding the obtaining of evidence which might lead to the procurement of evidence: British American Tobacco Australia Services Ltd v Eubanks for the United States of America (2004) 60 NSWLR 483 at [22]; [45].

Section 33(6), in general terms, prohibits an order being made requiring a person to provide discovery of documents: see further British American Tobacco Australia Services Ltd v Eubanks for the United States of America at [24]–[26]; Application by the Attorney General of NSW [2020] NSWSC 1007 at [5].

Legislation

  • Evidence on Commission Act 1995 (NSW), ss 32, 33

Rules

  • UCPR, rr 6.43(1)–(4), 6.44(1)–(4)