Application by Attorney General in and for the State of New South Wales

This matter comes before me today by way of a summons filed on 27 May 2025, seeking orders pursuant to ss 32, 33(1) and 33(3)(b) of the Evidence on Commission Act 1995 (NSW).

Mr Tynan of counsel appears for the plaintiff. The application is made ex parte. Mr Tynan provided concise and very helpful submissions as to the reason that the orders were sought and the basis on which the orders should be made according to the plaintiff.

As set out in the summons, the plaintiff seeks orders that the Commonwealth Bank and ING Bank produce account statements for accounts, products, and investments held in the name of Anna Hassan, as of 6 May 2021. The reason that the plaintiff seeks these orders is that the Attorney General has received a request for international judicial assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.

In support of the application, the plaintiff relies on the affidavit of Rebecca Sui Ming Lim Ku, dated 26 May 2025. Annexed to the affidavit is the request for international assistance as well as the proposed subpoenas prepared by the plaintiff about which the plaintiff seeks orders.

As submitted by Mr Tynan, in considering whether I should make the orders, regard must be had to the principles set out in British American Tobacco Australia Services Limited v Eubanks for the United States of America (2004) 60 NSWLR 483; [2004] NSWCA 158 (“British American Tobacco”).

The principles which are to be applied are set out at [42] of that judgment as follows:

Mr Tynan directs my attention particularly to items 1, 2, 3, 4, 6, 9 and 12, being matters which are relevant to this application. As observed in British American Tobacco, the purpose of the Convention is to enable a foreign Court to obtain assistance from a New South Wales Court in the conduct of proceedings in that foreign jurisdiction.

Having said that, this Court must determine whether the orders should be made. The Court will view the request benevolently but must also ensure that the application is being made for a legitimate request. Any order made by this Court cannot depart substantially from the terms of the letter of request, but there is a limitation on what orders this Court can make. Specifically, this Court should not make orders that it would not ordinarily make in litigation conducted in this Court.

That is particularly significant in this matter, as in the letter of request from the Prague District Court, the Court seeks that both the Commonwealth Bank and the ING Bank attend for examination and produce documents comprising “all and any other products or services/stroke claims or liabilities, if any, which ING may know about and which were owned by the testator as of the date of her death and have to be handed over to the heir.”

The litigation in the District Court in Prague is to determine the extent of the property owned by a testator, Ms Hassan, for the benefit of the heir. As said in the letter of request, the nature and purpose of the proceedings is the assessment of property owned so that a ruling is to be made in what is described as ‘the inheritance matter’. However, as Mr Tynan submits, it is not permissible to request that a corporation attend for examination. Only individuals can be required to attend for examination.

Further, the scope of the request for documents is so broad that it would be considered oppressive, and this Court would not ordinarily make an order in those terms. However, Mr Tynan says that having considered the matter and having regard to his advice, the plaintiff has determined that the request can be met by means of a subpoena on both the Commonwealth Bank and the ING Bank in conventional terms; that is, a subpoena requiring both banks to produce copies of bank account statements held during the relevant period in the name of Ms Hassan.

Whilst I accept what is said in British American Tobacco, it is not the function of this Court to depart substantially from the terms of the letter of request. I also consider that any letter of request must be considered beneficially and be interpreted in such a way such that it can be given effect through procedures and principles which would be applied in New South Wales. This Court would not require a corporation to attend for examination and this Court would not issue a subpoena in the broad terms set out in the letter of request. It would, however, issue subpoenas in the terms set out in the proposed subpoenas prepared by the plaintiff.

In these circumstances, I am satisfied that at least part of the letter of request can be given effect to, albeit not the whole of the letter of request. The fact that I decline to make an order requiring the corporations to attend for examination does not mean that I should merely dismiss the application. Rather, I should give effect to the letter of request in accordance with the laws of New South Wales.

In the circumstances, I consider that I should make the orders sought in the summons and as set out in the proposed order prepared by the plaintiff. I make the following orders: