Application by 24/7 Customer, Inc (No 3)

HER HONOUR: In 2017 I made orders under s 32 and s 33 of the Evidence on Commission Act 1995 (NSW) in relation to the proposed examination of Elizabeth Anne Parkin, giving effect to letters of request issued by the Honourable Kandis A Westmore, a US magistrate judge, United States District Court for the Northern District of California United States of America, for the purpose of proceedings brought in that court by Life Person Inc: see Application by 24/7 Customer, Inc [2017] NSWSC 1609 and Application by 24/7 Customer, Inc (No 2) [2017] NSWSC 1708

The Honourable Kandis A Westmore has issued a further letter of request of 3 May 2018, requesting judicial assistance in vacating the orders earlier made as to the oral examination of Ms Parkin.

24/7 Inc has now applied ex parte by motion seeking that the Court exercise its powers under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) to revoke its earlier orders.

While r 52 of the Uniform Civil Procedural Rules governs applications made under s 33 of the Evidence on Commission Act, neither that Act nor Pt 52 deal expressly with an application such as this, for the vacation of orders earlier made by the Court. Rule 52 relevantly provides:

I accept that in the circumstances the application which has been brought by motion satisfies the requirements of Part 52, and that it is the Court's general powers which arise to be exercised on this further application under the Evidence on Commission Act, to have the earlier examination orders revoked.

The application is supported by an affidavit sworn by Ms Bell, one of 24/7 Customer Inc solicitors, to which is annexed relevant documents, including the US Court's further May 2018 letter of request. There Ms Bell explains the circumstances in which the examination of Ms Parkin came to be unnecessary, with the result the application for the further letter which the US court issued.

Affidavits sworn by another 24/7 Customer Inc solicitor, Mr Pagent, in November and December 2017 shed further light on those circumstances, which it is unnecessary to explain.

The application has been made ex parte, but also in evidence is correspondence from Ms Parkin's solicitor, indicating that she consents to the application and does not wish to be heard. There is a similar communication from Life Person Inc, the other party to the US proceedings and from Ms Parkin's former employer, SingTel Optus Pty Limited, who also had an interest in the orders which the Court earlier made in relation to Ms Parkin's examination.

Rule 36.15.2 empowers the Court to set aside an order if the parties to the proceedings consent. Otherwise the Court has power to set the orders aside under r 36.15.3, the circumstances not falling within the exceptions specified in paragraphs (a) or (b).

As the proceedings were commenced and pursued ex parte, 24/7 Customer Inc is the only party, but the evidence establishes that the other party to the US proceedings, as well as the subject of the Court's earlier orders, Ms Parkin both consent to the making of the order sought.

In all of those circumstances I am satisfied that the Court's power should be exercised in order to give effect to the US court's further request.

Accordingly I order that the orders made on 23 November and 7 December 2017 be set aside.