Uniform Civil Procedure Rules 2005
Part 24 Taking evidence otherwise than at trial
24.1 Application of Part
This Part applies to proceedings in the Supreme Court or the District Court.
24.2 Construction of certain references
(cf SCR Part 27, rule 1)
In this Part, a reference to the Evidence on Commission Act 1995, or to a provision of that Act, includes a reference to the Foreign Evidence Act 1994 of the Commonwealth, or to the corresponding provision of that Act.
24.3 Order for examination of witness
(cf SCR Part 27, rule 1A; DCR Part 25, rule 1)
(1) For the purposes of any proceedings, the court may make an order for the examination of a person, otherwise than at trial, at any place—(a) in New South Wales, or(b) outside New South Wales, but in Australia, or(c) outside Australia.(2) An order under this rule—(a) must nominate the person by whom the examination is to be conducted (the examiner), and(b) may specify the time at which, or within which, the examination is to be conducted.
24.4 Judicial officer or court officer as examiner
(cf SCR Part 27, rule 1C; DCR Part 25, rule 3)
(1) A judicial officer or other officer of the court may not act as an examiner otherwise than with the concurrence of the senior judicial officer.(2) An applicant for an order for a person’s examination, outside New South Wales, by a judicial officer or other officer of the court may request the proposed examiner to certify the amount which in his or her opinion should be paid into court as provision for expenses of the examination.(3) Such an order may be expressed to be conditional on the payment into court, by such person and within such time as the court may specify, of not less than the amount certified in accordance with subrule (2).(4) If satisfied that the amount paid or payable into court is or may be insufficient to provide for the expenses of the examination, the court, on application of the registrar—(a) may make an order directing the party on whose application the order for examination was made to pay into court such further amount, and within such time, as the court may specify, and(b) may make an order—(i) staying the proceedings, so far as they concern the whole or any part of any claim for relief by that party, oruntil such payment is made.(ii) suspending the operation of the order for examination,(5) The registrar must apply so much of the amount paid into court as may from time to time be required for the purpose in the payment, to or at the direction of the examiner, of—(a) expenses incurred in relation to the examination, or(b) advances for expenses to be incurred in relation to the examination.(6) Any amount paid under subrule (5) that is not required for expenses in relation to the examination must be repaid into court.(7) After the conclusion of the examination, on the examiner certifying that no expenses in relation to the examination remain unpaid or unrecouped from the money in court, the registrar must, subject to any order of the court, refund to the person by whom the money was paid into court (and, if more than one, in the same proportions as their respective payments into court) any money remaining in court.
24.5 Letter of request
(cf SCR Part 27, rule 2; DCR Part 25, rule 5)
(1) After an order is made under section 6(1)(c) or 20(1)(c) of the Evidence on Commission Act 1995 for the issue of a letter of request, or an order of the same kind is made under section 9 or 23 of that Act, the party obtaining the order—(a) must lodge with the principal registrar—(i) a form of the appropriate letter of request, and(ii) the interrogatories (if any) and cross-interrogatories (if any) to accompany the letter of request, and(iii) if the letter of request is to be issued to the judicial authorities of a country in which English is not an official language appropriate to the place where the evidence is to be taken, and unless the court orders otherwise, a translation of the documents referred to in subparagraphs (i) and (ii) into an official language of that country appropriate to that place, and(b) must file—(i) a copy of each of the documents referred to in paragraph (a), and(ii) an undertaking by the party obtaining the order, or his or her solicitor, to pay all expenses incurred by the court, or by any person at the request of the court, in respect of the letter of request.(2) A translation filed under subrule (1)(a) must be certified by the person making it to be a correct translation, and the certificate must state the person’s full name and address and the office or qualification by reason of which the person so certifies.
24.6 Evidence otherwise than on oath
(cf SCR Part 27, rule 2B; DCR Part 25, rule 7)
Unless the court orders otherwise—(a) a person may be examined outside Australia, otherwise than on oath, under an order under rule 24.3(1)(c), andif the person is examined or the evidence is taken in accordance with the procedure of the country concerned.(b) evidence of a person may be taken outside Australia, otherwise than on oath, under an order under section 6(1)(c) or 20(1)(c) of the Evidence on Commission Act 1995, or under an order of the same kind made under section 9 or 23 of that Act,
24.7 Documents for examiner
(cf SCR Part 27, rule 3; DCR Part 25, rule 8)
(1) The party obtaining an order for examination before an examiner must furnish the examiner with copies of such of the documents in the proceedings as are necessary to inform the examiner of the issues to which the examination is to relate.(2) If the documents in the proceedings are not sufficient to inform the examiner of the issues to which the examination is to relate, the court may, in the order for examination or in a later order, state the issues to which the examination is to relate.(3) This rule does not apply if the examiner is a judicial officer of the court by which the order for examination was made.
24.8 Appointment for examination
(cf SCR Part 27, rule 4; DCR Part 25, rule 9)
(1) The examiner is to appoint a place (and, subject to the order for examination, a time) for the examination.(2) The time appointed by the examiner must be as soon as practicable after the making of the order, having regard to all the circumstances (including the convenience of the person to be examined).(3) The examiner must give notice of an appointment under this rule to the party obtaining the order and, not less than 3 days before the time appointed, that party must give notice of the appointment to each other party.
24.9 Conduct of examination
(cf SCR Part 27, rule 5; DCR Part 25, rule 10)
(1) The examiner must permit the parties to attend the examination, together with their barristers and solicitors.(2) Subject to this Part, the proceedings before the examiner are to be in accordance with the procedure of the court.(3) Unless the court orders otherwise—(a) a person who is examined before an examiner may be cross-examined and re-examined, and(b) the examination, cross-examination and re-examination of such a person are to be conducted in the same way as at a trial.(4) The examiner may put any question to a person being examined—(a) as to the meaning of any answer made by that person, or(b) as to any matter arising in the course of the examination.(5) The examiner may adjourn the examination from time to time or from place to place.
24.10 Examination of additional persons
(cf SCR Part 27, rule 6; DCR Part 25, rule 11)
(1) On the application of a party to the proceedings, an examiner who is a judicial officer of the court may examine any person not named or provided for in the order for examination.(2) With the written consent of each party to the proceedings, an examiner who is not a judicial officer of the court may examine any person not named or provided for in the order for examination and, if he or she does so, must annex those consents to the transcript of that person’s evidence.
(cf SCR Part 27, rule 7; DCR Part 25, rule 12)
(1) If a party objects to a question put to a person being examined, or a person being examined objects to answering such a question or to producing any document or thing—(a) the examiner must state to the parties his or her opinion, but must not decide, on the validity of the objection, and(b) the question, the ground for the objection, the examiner’s opinion on the objection and the answer (if any) of the person being examined must be set out in the transcript of that person’s evidence or in a statement attached to the transcript, and(c) the court may, on motion by any party, decide the validity of the objection, and(d) if the court decides against the objector, the court may order the objector to pay the costs occasioned by the objection.(2) This rule does not apply if the examiner is a judicial officer of the court.
24.12 Recording of evidence generally
(cf SCR Part 27, rule 8; DCR Part 25, rule 13)
The evidence taken at an examination must be recorded in writing (whether longhand or shorthand) or by some other method (whether mechanical, electronic or otherwise) that is capable of making a permanent record of the evidence.
24.13 Audio-visual recording of evidence
(cf SCR Part 27, rule 8A; DCR Part 25, rule 14)
The court or the examiner may give directions for the making of an audio-visual recording of the proceedings on an examination.
24.14 Authentication and filing
(cf SCR Part 27, rule 9; DCR Part 25, rule 15)
(1) A transcript of the evidence recorded in relation to an examination must be prepared and the person who prepares the transcript must certify that it is a correct transcript of the evidence so recorded.(2) The examiner must sign the transcript of the evidence and any document that constitutes an audio-visual recording under rule 24.13.(3) The examiner must certify on the transcript, or on a separate document annexed to the transcript, as to the time occupied in the examination and as to the fees received by the examiner in respect of the examination.(4) The examiner must send the transcript of the evidence, and any document that constitutes an audio-visual recording under rule 24.13, to the registrar and the registrar must file them in the proceedings.(5) Unless the court orders otherwise, the examiner must send the exhibits to the registrar, and the registrar must deal with the exhibits in such manner as the court may direct.(6) Subrules (1), (3) and (4) do not apply if the examiner is a judicial officer of the court.
24.15 Special report
(cf SCR Part 27, rule 10; DCR Part 25, rule 16)
(1) The examiner may furnish to the court a special report with regard to any examination conducted by the examiner and with regard to the absence of any person from, or the conduct of any person at, the examination.(2) The court may direct such proceedings to be taken, or make such order, on the report as the court thinks fit.
24.16 Default of witness
(cf SCR Part 27, rule 11; DCR Part 25, rule 17)
(1) If a person, required by subpoena to attend before an examiner who is not a judicial officer of the court—(a) refuses to be sworn for the purposes of the examination, or(b) refuses to answer any lawful question, orthe examiner must, at the request of any party, give to that party a certificate, signed by the examiner, of the refusal.(c) refuses to produce any document or thing,(2) On the certificate being filed, and on motion by any party, the court—(a) may order the person to be sworn, or to answer the question or to produce the document or thing, as the case may be, and(b) may order the person to pay any costs occasioned by the refusal.
24.17 Order for payment of expenses
(cf SCR Part 27, rule 12; DCR Part 25, rule 18)
If a party fails to comply with an undertaking referred to in rule 24.5(1)(b)(ii) within 7 days after service on the party of notice of the amount of the expenses concerned, the court—(a) may order the party to pay the amount of the expenses to the registrar by a specified date, and(b) if the party fails to comply with that order by the specified date, may give such judgment, or make such order, as it thinks fit.
24.18 Perpetuation of testimony
(cf SCR Part 27, rule 13; DCR Part 25, rule 19)
(1) Witnesses may not be examined to perpetuate testimony unless proceedings to perpetuate that testimony have been commenced.(2) Any person may commence proceedings to perpetuate testimony that may be material for establishing any right or claim to any relief, which right or claim cannot be established before the happening of a future event.(3) If proceedings to perpetuate testimony touch any matter or thing in which the Crown may have an interest, the Attorney General may be made a defendant.(4) If, under subrule (3), the Attorney General is made a defendant to proceedings to perpetuate testimony, evidence taken in those proceedings is not inadmissible in other proceedings just because the Crown was not a party to the proceedings to perpetuate testimony.(5) Subrule (2) does not affect the right of any person to commence proceedings to perpetuate testimony in cases to which that subrule does not apply.
24.19 Operation of directions under Evidence on Commission Act 1995
(cf SCR Part 27, rule 2A; DCR Part 25, rule 6)
To the extent to which they deal with matters arising under the Evidence on Commission Act 1995, the provisions of this Part are subject to any directions given by a superior court under section 7 or 21 of that Act.
24.20 Witness expenses
(cf DCR Part 25, rule 21)
A witness attending before an examiner to be examined, or to produce a document, is entitled to payment of the same amount for conduct money expenses and loss of time as he or she would have been entitled to on attending to give evidence, or to produce a document, at the trial of the proceedings before the court.