Re Application of the Attorney General of NSW

By summons filed on 28 November 2025, the Attorney General seeks orders pursuant to s 33 of the Evidence on Commission Act 1995 (NSW) (“the Act”) for the examination of Ms Faten Sallan and Ms Ayse Karaoglu.

The application is made in pursuance of a request dated 29 August 2022 by the 15th Family Court of Izmir of the Republic of Turkiye (“the requesting Court”). The request was made in connection with divorce proceedings pending in the requesting Court between Yunus Cinar, as claimant, and Nevim Cinar, as respondent.

The Attorney General relies on an affidavit of Sumen Kumareswaran, affirmed on 28 November 2025. Mr Kumareswaran is an employed solicitor at the Crown Solicitor’s Office.

Sections 32 and 33 contained in Part 4 of the Act provide as follows:

Part 4 of the Act was enacted to implement into the law of New South Wales the provisions of the Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters 847 UNTS 231 of 1970 (“the Convention”): see British American Tobacco (Investments) Limited v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158 at [16] and [21] (“Eubanks”). I observe that the requesting letter refers to the wrong Hague Convention, but nothing turns on that, and it may, indeed, be a translation error.

The Attorney General properly points to five well-established principles to be applied to such an application. They are as follows:

The Court must be satisfied in each of the matters specified in s 32(1)(a) and (b) before the balance of the provisions of Part 4 of the Act can apply. Section 32(1)(b) requires the Court to be satisfied 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”. This mirrors the language used throughout the Convention and also the language in the similar Act in the United Kingdom upon which Part 4 was modelled.

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 and that the British case law should generally be followed in Australia”: at [41].

A question might arise as to whether or not family law matters are civil in nature. In Secretary of the Attorney General’s Department v Evans (2010) 245 FLR 381, Coates FM stated at 387 that:

In any event, it appears that a broad meaning of the phrase “civil or commercial” should be entertained (see In Re Norway’s Application (No 1 and 2) [1990] 1 AC 723 at 800). Indeed, in Europe it is accepted that divorce and child custody proceedings are civil proceedings for the purposes of the Convention.

Section 32(2) provides that Part 4 does not apply in respect of proceedings relating to the commission of an offence, unless the requesting Court is a Court of a place in Australia or New Zealand. Notwithstanding that certain of the questions proposed by the letter of request might arguably amount to criminal conduct in Australia, the proceedings in the requesting Court are not proceedings relating to the commission of an offence for the purpose of s 32(2).

The letter of request appears at annexure A to Mr Kumareswaran’s affidavit under cover of a letter from the Turkish Vice-Consul of 20 April 2023. It is apparent from the letters from the Commonwealth Attorney General’s department of 1 July 2024 that this request has been taken as being made pursuant to the Convention.

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

The proceedings in the requesting Court are proceedings for the purposes of s 32(1)(b). The request states that the respondent asked for the hearing of her witnesses residing in Australia in order to prove her allegations. The request then identifies two individuals, Faten Sallan and Ayse Karaoglu as the persons to be examined before specifying a series of questions to be asked of each of them. It is clear from the nature of those questions that the respondent seeks to establish incidents of mistreatment at the hand of her husband through the evidence requested to be taken from the two named witnesses.

Mr Kumareswaran’s affidavit annexes correspondence subsequent to the request by which steps were taken to confirm that the proceedings in the requesting Court remain on foot and that the evidence is still requested to be taken. Most recently, on 24 October 2025 the requesting Court confirmed that the request is still ongoing and that the hearing date would be postponed to 17 February 2026. I note that the request has been taken by the Commonwealth Attorney General’s Department as a request made under the Convention.

I am satisfied that each of the criteria in s 32 of the Act is satisfied.

By way of the summons, the Attorney General seeks that a registrar of the Court be appointed as examiner to conduct the examinations of the two witnesses. Registrars have delegated power to conduct an examination under rule 24.9 of the Uniform Civil Procedural Rules 2005 (NSW), and to sign any transcript under rule 24.14. There is no reason why the examination in this case ought not to be conducted by a registrar.

The summons otherwise seeks procedural orders so as to allow a date for the examinations to be fixed and a subpoena to attend to be served on each of the witnesses. Draft forms of those subpoenas appear as annexures to Mr Kumareswaran’s affidavit.

I observe that the orders that are sought are substantially similar to orders made by Wright J in In the Application of Her Majesty’s Attorney General in and for the State of New South Wales under s 32 of the Evidence on Commission Act 1995 (NSW) [2020] NSWSC 817 and by Garling J in Re Application of Attorney General of New South Wales [2024] NSWSC 765.

In all of the circumstances, I make the orders as sought by the Attorney General in the short minutes of order which have been provided to me as follows: