Nanoteko Pty Ltd v Nanotech Industrial Solutions Inc

On 14 March 2022, Justice N Adams heard a notice of motion filed by the plaintiff, seeking a variety of orders under the Evidence on Commission Act 1995 (NSW). [1] The judgment sets out the relevant factual background and legal issues with her Honour’s customary clarity. I do not propose to repeat it.

Her Honour made all but one of the orders sought. The order that was not made was an order granting leave to the plaintiff to issue a subpoena to a named person and that proposed witness to be examined on commission to produce documents. The reason her Honour declined to grant leave was that the foreign court requesting assistance - that is, the United States District Court for the District of New Jersey - had not specifically requested that such a subpoena should issue.

Her Honour noted that that was probably an oversight but, even so, took the view that the statutory prerequisites were not fulfilled and, accordingly, the Court was not authorised to grant leave.

The plaintiff has now rectified that omission. A supplemental letter of request, as styled over the hand of The Honourable Judge Cathy L Waldor of the United States District Court for the District of New Jersey, was tendered this morning amongst a bundle of documents otherwise relevant to the Court’s authority, power and discretion under the Evidence on Commission Act. That request includes, at [4]:

And further, at [8] on p 6 in the next part of the order:

Based on this request, the documentation, the desirability of comity explained by N Adams J [2] and as authorised and required by the statute, specifically ss 32 and 33 of the Evidence on Commission Act, I am satisfied that the orders now sought should be made, and should be made as sought by the plaintiff ex parte.