Re Application of the Attorney General of NSW

By summons filed on 23 December 2025, the Attorney General applies for orders under s 33 of the Evidence on Commission Act 1995 (NSW) for the examination of Ms Sumru Kiratli.

The application is made in response to a request from the Seventh Civil Court of General Justice of Yalova of the Republic of Türkiye dated 24 November 2024. The request was made in connection with succession proceedings, pending in the requesting Court, between Demit Taskin and Serpil Deniz Yazgan as plaintiffs, and Beyhan Kiratli and Mustafa Saffei Kiratli as defendants.

In support of his application, the Attorney General read an affidavit of Darcy Munce, affirmed on 23 December 2025.

Central to this application are ss 32 and 33 of the Act, which relevantly provide:

As was noted by Spigelman CJ in British American Tobacco Investments Ltd v Eubanks (2004), 60 NSWLR 483 at [16]‑[21], Part 4 of the Act (in which ss 32 and 33 are found) was enacted to implement, as part of the domestic law of New South Wales, the provisions of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters of 1970.

The principles relevant to applications made under Part 4 are well established and have been summarised in submissions prepared by Mr Atkin, who appeared for the Attorney General:

The Court must be satisfied of each of the matters specified in s 32(1)(a) and (b) before the remaining provisions of Part 4 can apply.

Section 32(1)(b) requires the Court to be satisfied that that “the evidence to which the application relates is to be obtained for the purposes of proceedings…”. The term “proceeding” is relevantly defined in s 31 to include “proceedings in any civil or commercial matter”. That mirrors the language used throughout the Convention and the language in s 9(1) of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK) (the UK Act) on which Part 4 was modelled: Eubanks at [41]. In Eubanks, Spigelman CJ noted that this reinforced the “general principle that an international treaty of this character should be interpreted, wherever possible, in an internationally uniform way”, stating that “the British case law should generally be followed in Australia”.

The House of Lords has endorsed a broad meaning of the phrase “civil or commercial” in the UK Act as “conferring a very broad jurisdiction upon the courts in the United Kingdom to enable them to provide assistance for courts in other jurisdictions by obtaining evidence for them”: Re Norway’s Application (Nos 1 & 2) [1990] 1 AC 723 at 800. Lord Goff of Chieveley (with whom the other Law Lords agreed) accepted (at 799-802) that the phrase bore the same meaning which it had borne in s 1 of the Foreign Tribunals Evidence Act 1856 (19 & 20 Vict. C. 113), of which it was said (at 797):

The letter of request was provided under cover of a letter from the Turkish Vice‑Consul dated 6 May 2025. On its face, it purports to have been made in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 1965. As Mr Atkin has observed, this is a different international convention to that which is embodied by the Act. I am, however, satisfied that nothing turns on this fact.

As is made clear by a letter of 21 July 2025 from the Commonwealth Attorney General's Department to the relevant body in New South Wales (under the cover of which the letter request was forwarded), the request has been treated by the Commonwealth Attorney General's Department as a request made under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 1970. Evidently, the Attorney General of New South Wales has approached the letter of request in the same manner, as have I.

Under s 32 of the Act, there are two matters about which I must be satisfied in order to make the orders sought:

I will deal briefly with each of these issues.

I am satisfied that the Seventh Civil Court of General Justice of Yalova of the Republic of Türkiye has made a request and that that Court is exercising jurisdiction in a place outside of New South Wales. I am satisfied of this based on the form and content of the request and inferences that I have drawn from it.

The nature of the proceedings which are underway in the requesting Court are summarised at [5] of the letter of request as follows:

I am satisfied that the proceedings in the requesting Court are proceedings in a civil matter and are not criminal proceedings. The request sets out a number of questions to be asked of the witness at [9]. Those questions, on their face, would appear to be directed to circumstances in which a will was executed and property was transferred.

I am satisfied that this evidence is being sought for the purposes of the proceedings pending in the requesting Court, and that those proceedings remain on foot. In that respect, I note that as recently as 24 October 2025 a communication was received from the Turkish Consulate in Sydney which indicated that the evidence sought to be obtained through this application is required by the requesting Court on or before 14 April 2026.

In light of the above, I am satisfied that each of the criteria provided for in s 32 of the Act is satisfied.

Turning to the orders sought, Part 52 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) addresses applications for orders under s 33 of the Act. Rule 52.2 provides that:

The Attorney General has sought that a Registrar of the Court be appointed as examiner to conduct the examination. Registrars have delegated power to conduct an examination under r 24.9 of the UCPR and to sign and certify any transcript under r 24.14. I am satisfied that it is appropriate in this case for the examination to be conducted by a Registrar.

For the above reasons, I make the following orders: