Australia, July 24 -- New South Wales Land and Environment Court issued text of the following judgement on June 24:

1. 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).

2. 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.

3. 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.

4. 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.

5. 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").

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

"'(1) Comity requires this court to view a letter of request issued by a foreign court for the purpose of civil proceedings before it benevolently. It is our pleasure and duty to assist those courts and the parties to them in arriving at a fair and just determination of their civil litigation where we can properly do so.

(2) Nonetheless when an application for an order under the Act is disputed, the High Court must determine whether the order sought is one which it can or should properly make.

(3) The issue whether the order sought is for an illegitimate investigation rather than to obtain evidence to be adduced at trial is to be determined principally by reference to the terms of the letter of request and of the proposed order of this court. However, the court will consider the evidence before it as a whole.

(4) Particularly pertinent will be the stage at which the order is sought and the extent to which the party seeking the order is able to demonstrate that the information sought is relevant to issues in the foreign proceedings in the sense of being capable of being adduced at trial in support of those issues.

(5) The fact that testimony is sought as part of the discovery process in the United States proceedings is not of itself decisive. The fact that it is sought at the discovery stage is an indication that what is sought is discovery. However, the High Court has power to make an order for such testimony to be taken if it is limited to evidence to be adduced at trial. The court has a discretion to refuse to make an order at that stage even for such evidence to be taken on the grounds that it is premature, for example, and that the deposition of the proposed witness will be more efficiently and shortly taken, involving less inconvenience or intrusion into matters confidential to him or to other third parties, if it is taken at a later stage.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1982bdb7073809270e07e3c2)

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