Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 4 June 2020 at 06:35)
Part 52
Part 52 Taking evidence for foreign and Australian courts and tribunals
52.1   Procedure
(cf SCR Part 58, rule 1)
(1)  Proceedings for an order under section 33 of the Evidence on Commission Act 1995 in relation to a matter pending before a requesting court may be commenced in the Supreme Court—
(a)  by a person nominated for that purpose by the requesting court, or
(b)  if no person is so nominated, by the Attorney General.
(2)  In proceedings for such an order, no person is required to be joined as a defendant.
(3)  If proceedings for such an order have been commenced in relation to a matter pending before a requesting court, any other application for such an order in relation to the same matter is to be made by notice of motion in the proceedings.
(4)  Rules 52.2–52.5 have effect unless the Supreme Court otherwise orders.
52.2   Application of other rules regarding the taking of evidence
(cf SCR Part 58, rule 2)
Subject to this Part, rules 24.7–24.16 apply to an examination held pursuant to an order under this Part—
(a)  as if the matter pending before the requesting court were proceedings in the Supreme Court, and
(b)  as if the order had been made under rule 24.3 in proceedings in the Supreme Court, and
(c)  if a Judge, associate Judge or registrar is appointed under section 33 of the Evidence on Commission Act 1995, as if an order had been made under rule 24.3 for the examination of a person on oath before a Judge, associate Judge or registrar.
52.3   Attendance of applicant
(cf SCR Part 58, rule 3)
The person commencing proceedings under this Part may attend and take part in the examination.
52.4   Transcript of evidence and exhibits
(cf SCR Part 58, rule 4)
(1)  The provisions of rule 24.14(4) and (5) do not apply to an examination under this Part.
(2)  Subject to rule 52.6, the examiner must send the transcript of evidence and any document which constitutes a recording under rule 24.13 (which relates to videotape, etc) to the principal registrar of the Supreme Court.
(3)  An examiner who receives an exhibit on production by any person must, at the conclusion of the examination, return the exhibit to the person producing it unless that person consents to the retention of the exhibit.
(4)  If the examiner retains the exhibit, he or she must send it to the principal registrar of the Supreme Court together with the transcript of evidence.
52.5   Certificate
(cf SCR Part 58, rule 5)
On receipt of a transcript of evidence taken under this Part, a registrar of the Supreme Court—
(a)  must issue a certificate, sealed with the seal of the Supreme Court, annexing and identifying—
(i)  the request, and
(ii)  the order of the Court for examination, and
(iii)  the transcript of evidence, and
(iv)  any document that constitutes a recording under rule 24.13, and
(v)  any exhibits received from the examiner, and
(b)  must send the certificate and annexures to the Attorney General or, if the request was sent to the Supreme Court by some other person pursuant to a convention, to that other person.
52.6   Privilege of witness
(cf SCR Part 58, rule 6)
(1)  This rule applies if a claim by a witness to be exempt from giving any evidence on the ground specified in section 34(1)(b) of the Evidence on Commission Act 1995 is not supported or conceded as mentioned in section 34(2) of that Act.
(2)  The witness may be required to give the evidence to which the claim relates—
(a)  by the examiner, or
(b)  if the examiner does not so require, by the Supreme Court on the application of the person who obtained the order under section 33 of the Evidence on Commission Act 1995.
(3)  An application referred to in subrule (2)(b) need not be served on any person unless the Supreme Court otherwise orders.
(4)  The following provisions apply if the evidence is taken pursuant to such a requirement—
(a)  the evidence must be recorded in a transcript (the disputed transcript) that is separate to the transcript in which the rest of the witness’s evidence is recorded,
(b)  the transcript of evidence that is sent to the principal registrar of the Supreme Court must be accompanied by a statement, signed by the examiner, setting out the claim and the ground on which it was made,
(c)  on receipt of the statement, the principal registrar of the Supreme Court—
(i)  must retain the disputed transcript, and
(ii)  must send to the requesting court, together with the documents mentioned in rule 52.4, both the statement and a request to determine the claim,
(d)  on receiving notice of the requesting court’s determination of the claim, the principal registrar of the Supreme Court—
(i)  if the claim is rejected, must send the disputed transcript to the requesting court, or
(ii)  if the claim is upheld, must send the disputed transcript to the witness,
and, in either case, must cause notice of the determination to be given both to the witness and to the person who obtained the order under section 33 of the Evidence on Commission Act 1995.