Part 4 Taking of evidence for foreign and Australian Courts
In this Part:Australian court means a person or body authorised to exercise an adjudicative function:
(a) whether on behalf of a court or otherwise, and(b) whether or not the person or body is empowered to require the answering of questions or the production of documents.proceedings means:
(a) proceedings in any civil or commercial matter, or(b) proceedings in or before a court in relation to the commission of an offence or an alleged offence.property includes any land, chattel or other corporeal property of any description.
request includes any commission, order or other process issued by or on behalf of a requesting court.
requesting court means a court or tribunal by or on whose behalf a request is issued, as referred to in section 32.
32 Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court
(1) The following provisions of this Part apply if an application is made to the Supreme Court for an order for evidence to be obtained in the State and the Court is satisfied:(a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside the State, and(b) that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.(2) This Part does not apply in respect of proceedings relating to the commission of an offence or an alleged offence unless the requesting court is a court of a place in Australia or of New Zealand.
33 Power of the Supreme Court to give effect to application for assistance
(1) The Supreme Court has power, if an application is made under section 32, by order to make such provision for obtaining evidence in the State as may appear to the Court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made.(2) An order under this section may require a specified person to take such steps as the Court may consider appropriate for that purpose.(3) Without limiting the generality of subsections (1) and (2), an order under this section may, in particular, make provision as follows:(a) for the examination of witnesses, either orally or in writing,(b) for the production of documents,(c) for the inspection, photographing, preservation, custody or detention of any property,(d) for the taking of samples of any property and the carrying out of any experiments on or with any property,(e) for the medical examination of any person,(f) without limiting paragraph (e), for the taking and testing of samples of blood from any person.(4) An order under this section is not to require any particular steps to be taken unless they are steps that can be required to be taken by way of obtaining evidence for the purposes of proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates).(5) Subsection (4) does not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath if this is asked for by the requesting court.(6) An order under this section must not require a person:(a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person’s possession, custody or power, or(b) to produce any documents other than particular documents specified in the order and appearing to the court making the order to be, or likely to be, in the person’s possession, custody or power.(7) A person who, because of an order under this section, is required to attend at any place is entitled to similar conduct money and payment for expenses and loss of time on attendance as is a witness in proceedings before the Supreme Court.
(1) A person must not be compelled by virtue of an order under section 33 to give any evidence which the person could not be compelled to give:(a) in similar proceedings in the State, or(b) in similar proceedings in the place in which the requesting court exercises jurisdiction.(2) Subsection (1) (b) does not apply unless the claim of the person in question to be exempt from giving evidence is either:(a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled), or(b) conceded by the applicant for the order.(3) If such a claim by any person is not so supported or conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but that evidence is not to be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.(4) In this section, references to giving evidence include references to answering any question and to producing any document, and the reference in subsection (3) to the transmission of evidence given by a person is to be construed accordingly.
This Part is not intended to exclude or limit the operation of any law of the State that provides for the taking of evidence in the State for the purpose of a proceeding outside the State.
(1) The power to make rules under the Supreme Court Act 1970 extends to the making of rules for or with respect to:(a) the manner in which an application under section 32 is to be made, and(b) the circumstances in which an order can be made under section 33, and(c) the manner in which any reference mentioned in section 34 (3) is to be made.(2) Any such rules may include such incidental, supplementary and consequential provisions as are necessary or convenient.