1995
1995
2023-12-05
act
publicgeneral
act.reprint
act-2016-048
allinforce
act-1995-026
22589685-0680-484e-a338-cb91cc50f359
dd21d0fd-24ba-4fe4-925b-54eddeb26fdb
none
Does not include amendments
by—
Industrial Relations
Amendment Act 2023 No 41 (not
commenced)
An Act in relation to the taking of evidence
outside the State for the purposes of proceedings in the State and in relation
to the taking of evidence in the State for the purposes of proceedings outside
the State.
Part 1Preliminary
1Name of Act
This Act is the Evidence on
Commission Act 1995.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
Expressions used in this Act that are defined in
the Evidence Act 1995 have the meanings set
out in that Act.
Part 2Examination of witnesses abroad
Division 1Preliminary
4Definitions
In this Part:
examination includes any
proceeding for the taking of evidence of a person conducted by the judicial
authorities of a foreign country in relation to a letter of request issued as
a result of an order made by a court under this Part.
inferior court means a court of
the State (other than a superior court) except when exercising federal
jurisdiction.
superior court means:
(a)
the Supreme Court, and
(b)
the Land and Environment Court,
and
(c), (d)
(e)
the Dust Diseases Tribunal of New South Wales,
and
(f)
the District Court,
except when exercising federal
jurisdiction.
s 4: Am 1996 No 121,
Sch 4.21 [1]; 2001 No 108, Sch 2; 2002 No 23, Sch 1.2 [1]; 2016 No 48, Sch
2.18 [1].
5References to evidence taken in an
examination
A reference in this Part to evidence taken in an
examination includes a reference to:
(a)
a document produced at the examination,
and
(b)
answers made to any written interrogatories
presented at the examination, whether the answers are made in writing or are
made orally and put in writing.
Division 2Proceedings
in superior courts
6Orders for taking evidence abroad
(1)
In any proceeding before a superior court, the
court may, if it appears in the interests of justice to do so, on the
application of a party to the proceeding, make an order relating to a person
outside Australia:
(a)
for examination of the person on oath or
affirmation at any place outside Australia before a judge of the court, an
officer of the court or such other person as the court may appoint,
or
(b)
for issue of a commission for examination of the
person on oath or affirmation at any place outside Australia,
or
(c)
for issue of a letter of request to the judicial
authorities of a foreign country to take the evidence of a person or cause it
to be taken.
(2)
In deciding whether it is in the interests of
justice to make such an order, the matters to which the superior court is to
have regard include the following:
(a)
whether the person is willing or able to come to
the State to give evidence in the proceeding,
(b)
whether the person will be able to give evidence
material to any issue to be tried in the proceeding,
(c)
whether, having regard to the interests of the
parties to the proceeding, justice will be better served by making or refusing
to make the order.
7Directions and requests relating to
orders
(1)
If a superior court makes an order of the kind
referred to in section 6 (1) (a) or (b), the court may, at the time of making
the order or at a later time, give such directions as it thinks just relating
to the procedure to be followed in relation to the examination, including
directions about:
(a)
the time, place and manner of the examination,
and
(b)
any other matter that the court thinks
relevant.
(2)
If a superior court makes an order of the kind
referred to in section 6 (1) (c), the court may include in the order a request
about any matter relating to taking that evidence, including any of the
following matters:
(a)
examination, cross-examination or re-examination
of the person, whether the person’s evidence is given orally, on
affidavit or otherwise,
(b)
attendance of the Australian legal practitioner
representing each party to the proceeding in question and participation of
those persons in the examination in appropriate
circumstances,
(c)
any matter prescribed by the
regulations.
s 7: Am 2009 No 56,
Sch 3.4.
8Use of evidence taken in an examination
(1)
The superior court may, on such terms (if any) as
it thinks fit, permit a party to the proceeding to tender as evidence in the
proceeding:
(a)
a person’s evidence taken in an examination
held as a result of an order made under section 6, or
(b)
a record of that
evidence.
(2)
Evidence of a person so tendered is not
admissible if:
(a)
it appears to the court’s satisfaction at
the hearing of the proceeding that the person is in the State and is able to
attend the hearing, or
(b)
the evidence would not have been admissible had
it been adduced at the hearing of the proceeding.
Division 3Proceedings
in inferior courts
9Orders for taking evidence abroad
A superior court may, on the application of a
party to a proceeding before an inferior court, exercise the same power to
make an order of the kind referred to in Division 2 for the purpose of that
proceeding as the superior court has under that Division for the purpose of a
proceeding in the superior court.
10Use of evidence taken in an
examination
(1)
The superior court may, on such terms (if any) as
it thinks fit, permit a party to the proceeding to tender as evidence in the
proceeding:
(a)
a person’s evidence taken in an examination
held as a result of an order made under section 9, or
(b)
a record of that
evidence.
(2)
Evidence of a person so tendered is not
admissible if:
(a)
it appears to the court’s satisfaction at
the hearing of the proceeding that the person is in the State and is able to
attend the hearing, or
(b)
the evidence would not have been admissible had
it been adduced at the hearing of the proceeding.
Division 4Subsequent
proceedings
11Directions for use in subsequent proceedings of evidence
taken abroad
(1)
If, under section 9, a superior court makes an
order in relation to a committal proceeding, it may include in the order a
direction that evidence taken outside Australia under the order may, subject
to this Division, be tendered in a proceeding that is:
(a)
a criminal proceeding that results from the
committal proceeding, or
(b)
a related civil
proceeding.
(2)
If, under section 6 or 9, a superior court makes
an order in relation to a criminal proceeding (other than a committal
proceeding), it may include in the order a direction that evidence taken
outside Australia under the order may, subject to this Division, be tendered
in a proceeding that is a related civil proceeding.
(3)
In this section:
related civil
proceeding, in relation to a criminal proceeding, means any
civil proceeding arising from the same subject-matter from which the criminal
proceeding arose, and, in particular, includes:
(a)
a proceeding under the Confiscation of Proceeds of Crime Act
1989, or
(b)
a proceeding for the recovery of tax, or of any
duty, levy or charge payable to the State.
12Use of evidence in subsequent
proceedings
(1)
This section applies to a proceeding to which a
direction included in an order under section 6 or 9
relates.
(2)
The court before which the proceeding takes place
may, on such terms (if any) as it thinks fit, permit a party to the proceeding
to tender as evidence in the proceeding:
(a)
a person’s evidence taken in an examination
held as a result of the order under section 6 or 9, or
(b)
a record of that
evidence.
(3)
A person’s evidence so tendered is not
admissible if:
(a)
it appears to the court’s satisfaction at
the hearing of the subsequent proceeding that the person is in Australia and
is able to attend the hearing, or
(b)
the evidence would not have been admissible had
it been adduced at the hearing of the subsequent
proceeding.
Division 5General
13Variation or revocation of orders
(1)
A superior court may vary or revoke an order made
by the court under section 6 or 9.
(2)
The power to vary such an order includes the
power to:
(a)
include in the order a direction under section
11, or
(b)
vary or revoke a direction under section 11 that
is included in the order.
(3)
If an order under section 6 or 9 that includes a
direction under section 11 is revoked, the direction under section 11 is taken
to have been revoked at the same time.
14Courts may exercise certain powers in
chambers
A court may exercise its power under this Part in
chambers.
15Operation of other laws
This Part is not intended to exclude or limit the
operation of any law of the State, or of any rule or regulation made under
such a law, that provides for the examination of witnesses outside Australia
for the purpose of a proceeding in the State.
16Rules of court
(1)
The power to make rules under an Act regulating
the practice and procedure of a superior court extends, for the purpose of
regulating proceedings brought under this Part in or before that court, to
making any rules prescribing all matters necessary or convenient to be
prescribed for carrying out or giving effect to this
Part.
(2)
In particular, rules may be made prescribing
matters for or with respect to the practice and procedure of the superior
court in proceedings for the making of an order under section 6 or
9.
(3)
Rules so made must not be inconsistent with this
Act or any regulation made under section 37.
(4)
This section does not affect any power to make
rules under any other law.
Part 3Examination of witnesses outside the State but within
Australia
Division 1Preliminary
17Application of this Part
This Part does not apply to an examination
outside Australia, and references in this Part to persons, acts, matters or
things outside the State are to be read as excluding those outside
Australia.
18Definitions
In this Part:
examination includes any
proceeding for the taking of evidence of a person conducted by the judicial
authorities of a place outside the State in relation to a letter of request
issued as a result of an order made by a court under this Part.
inferior court means a
court of the State (other than a superior court) except when exercising
federal jurisdiction.
judicial authority of a
place outside the State means a court or person prescribed as an appropriate
judicial authority for that place.
superior court
means:
(a)
the Supreme Court, and
(b)
the Land and Environment Court,
and
(c), (d)
(e)
the Dust Diseases Tribunal of New South Wales,
and
(f)
the District Court,
except when exercising federal
jurisdiction.
s 18: Am 1996 No 121,
Sch 4.21 [2]; 2002 No 23, Sch 1.2 [2]; 2002 No 53, Sch 2.13; 2016 No 48, Sch
2.18 [2].
19References to evidence taken in an
examination
A reference in this Part to evidence taken in an
examination includes a reference to:
(a)
a document produced at the examination,
and
(b)
answers made to any written interrogatories
presented at the examination, whether the answers are made in writing or are
made orally and put in writing.
Division 2Proceedings
in superior courts
20Orders for taking evidence outside NSW
(1)
In any proceeding before a superior court, the
court may, if it appears in the interests of justice to do so, make an order
relating to a person outside the State:
(a)
for examination of the person on oath or
affirmation at any place outside the State before a judge of the court, an
officer of the court or such other person as the court may appoint,
or
(b)
for issue of a commission for examination of the
person on oath or affirmation at any place outside the State,
or
(c)
for issue of a letter of request to the judicial
authorities of a place outside the State to take the evidence of a person or
cause it to be taken.
(2)
In deciding whether it is in the interests of
justice to make such an order, the matters to which the superior court is to
have regard include the following:
(a)
whether the person is willing or able to come to
the State to give evidence in the proceeding,
(b)
whether the person will be able to give evidence
material to any issue to be tried in the proceeding,
(c)
whether, having regard to the interests of the
parties to the proceeding, justice will be better served by making or refusing
to make the order.
21Directions and requests relating to
orders
(1)
If the superior court makes an order of the kind
referred to in section 20 (1) (a) or (b), the court may, at the time of making
the order or at a later time, give such directions as it thinks just relating
to the procedure to be followed in relation to the examination, including
directions about:
(a)
the time, place and manner of the examination,
and
(b)
any other matter that the court thinks
relevant.
(2)
If the superior court makes an order of the kind
referred to in section 20 (1) (c), the court may include in the order a
request about any matter relating to taking that evidence, including any of
the following matters:
(a)
examination, cross-examination or re-examination
of the person, whether the person’s evidence is given orally, on
affidavit or otherwise,
(b)
attendance of the Australian legal practitioner
representing each party to the proceeding in question and participation of
those persons in the examination in appropriate
circumstances,
(c)
any matter prescribed by the
regulations.
s 21: Am 2009 No 56,
Sch 3.4.
22Use of evidence taken in an
examination
(1)
The superior court may, on such terms (if any) as
it thinks fit, permit a party to the proceeding to tender as evidence in the
proceeding:
(a)
a person’s evidence taken in an examination
held as a result of an order made under section 20, or
(b)
a record of that
evidence.
(2)
Evidence of a person so tendered is not
admissible if:
(a)
it appears to the court’s satisfaction at
the hearing of the proceeding that the person is in the State and is able to
attend the hearing, or
(b)
the evidence would not have been admissible had
it been adduced at the hearing of the proceeding.
Division 3Proceedings
in inferior courts
23Orders for taking evidence
A superior court may, on the application of a
party to a proceeding before an inferior court, exercise the same power to
make an order of the kind referred to in Division 2 for the purpose of that
proceeding as the superior court has under that Division for the purpose of a
proceeding in the superior court.
24Use of evidence taken in an
examination
(1)
The superior court may, on such terms (if any) as
it thinks fit, permit a party to the proceeding to tender as evidence in the
proceeding:
(a)
a person’s evidence taken in an
examination, or
(b)
a record of that
evidence.
(2)
Evidence of a person so tendered is not
admissible if:
(a)
it appears to the court’s satisfaction at
the hearing of the proceeding that the person is in the State and is able to
attend the hearing, or
(b)
the evidence would not have been admissible had
it been adduced at the hearing of the proceeding.
Division 4Subsequent
proceedings
25Directions for use in subsequent proceedings of evidence
taken abroad
(1)
If, under section 23, a superior court makes an
order in relation to a committal proceeding, it may include in the order a
direction that evidence taken outside the State under the order may, subject
to this Division, be tendered in a proceeding that is:
(a)
a criminal proceeding that results from the
committal proceeding, or
(b)
a related civil
proceeding.
(2)
If, under section 20 or 23, a superior court
makes an order in relation to a criminal proceeding (other than a committal
proceeding), it may include in the order a direction that evidence taken
outside the State under the order may, subject to this Division, be tendered
in a proceeding that is a related civil proceeding.
(3)
In this section:
related civil
proceeding, in relation to a criminal proceeding, means any
civil proceeding arising from the same subject-matter from which the criminal
proceeding arose, and, in particular, includes:
(a)
a proceeding under the Confiscation of Proceeds of Crime Act
1989, or
(b)
a proceeding for the recovery of tax, or of any
duty, levy or charge payable to the State.
26Use of evidence in subsequent
proceedings
(1)
This section applies to a proceeding to which a
direction included in an order under section 20 (1) or 23
relates.
(2)
The court before which the proceeding takes place
may, on such terms (if any) as it thinks fit, permit a party to the proceeding
to tender as evidence in the proceeding:
(a)
a person’s evidence taken in an examination
held as a result of the order under section 20 (1) or 23,
or
(b)
a record of that
evidence.
(3)
A person’s evidence so tendered is not
admissible if:
(a)
it appears to the court’s satisfaction at
the hearing of the subsequent proceeding that the person is in Australia and
is able to attend the hearing, or
(b)
the evidence would not have been admissible had
it been adduced at the hearing of the subsequent
proceeding.
Division 5General
27Variation or revocation of orders
(1)
A superior court may vary or revoke an order made
by the court under section 20 or 23.
(2)
The power to vary such an order includes the
power to:
(a)
include in the order a direction under section
25, or
(b)
vary or revoke a direction under section 25 that
is included in the order.
(3)
If an order under section 20 or 23 that includes
a direction under section 25 is revoked, the direction under section 25 is
taken to have been revoked at the same time.
28Courts may exercise certain powers in
chambers
A court may exercise its power under this Part in
chambers.
29Operation of other laws
This Part is not intended to exclude or limit the
operation of any law of the State, or of any rule or regulation made under
such a law, that provides for the examination of witnesses outside the State
for the purpose of a proceeding in the State.
30Rules of court
(1)
The power to make rules under an Act regulating
the practice and procedure of a superior court extends, for the purpose of
regulating proceedings brought under this Part in or before that court, to
making any rules prescribing all matters necessary or convenient to be
prescribed for carrying out or giving effect to this
Part.
(2)
In particular, rules may be made prescribing
matters for or with respect to the practice and procedure of the superior
court in proceedings for the making of an order under section 20 or
23.
(3)
Rules so made must not be inconsistent with this
Act or any regulation made under section 37.
(4)
This section does not affect any power to make
rules under any other law.
Part 4Taking of evidence for foreign and Australian
Courts
31Definitions
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.
32Application 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.
33Power 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.
34Privilege of witnesses
(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.
35Operation of other laws
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.
36Rules of court
(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.
Part 5Miscellaneous
37Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, prescribing matters for or with respect to any
matter that by this Act is required or permitted to be prescribed or that is
necessary or convenient to be prescribed for carrying out or giving effect to
this Act.
(2)
In particular, regulations may be made for or
with respect to the practice and procedure of the Supreme Court, the Land and
Environment Court and the Dust Diseases Tribunal of New South Wales in
proceedings for the making of an order under this Act.
s 37: Am 1996 No 121,
Sch 4.21 [3]; 2002 No 23, Sch 1.2 [3]; 2016 No 48, Sch 2.18
[3].
Historical notes
Table of amending instruments
Evidence on Commission Act
1995 No 26. Assented to 19.6.1995. Date of commencement,
1.9.1995, sec 2 and Gazette No 102 of 25.8.1995, p 4355. This Act has been
amended as follows:
1996
No 121
Statute Law (Miscellaneous Provisions)
Act (No 2) 1996. Assented to 3.12.1996.
Date of commencement of Sch 4.21, 4 months after assent,
sec 2 (4).
2001
No 108
Courts Legislation Further
Amendment Act 2001. Assented to 14.12.2001.
Date of commencement, 18.1.2002, sec 2 and GG No 25 of
18.1.2002, p 179.
2002
No 23
Compensation Court Repeal
Act 2002. Assented to 21.6.2002.
Date of commencement of Sch 1.2, 1.1.2004, sec 2
(2).
No 53
Statute Law (Miscellaneous
Provisions) Act 2002. Assented to 4.7.2002.
Date of commencement of Sch 2.13, assent, sec 2
(2).
2009
No 56
Statute Law (Miscellaneous
Provisions) Act 2009. Assented to 1.7.2009.
Date of commencement of Sch 3, 17.7.2009, sec 2
(1).
2016
No 48
Industrial Relations
Amendment (Industrial Court) Act 2016. Assented to
18.10.2016.
Date of commencement of Sch 2, 8.12.2016, sec 2 (1) and
2016 (674) LW 15.11.2016.
Table of amendments
Sec 4
Am 1996 No 121, Sch 4.21
[1]; 2001 No 108, Sch 2; 2002 No 23, Sch 1.2 [1]; 2016 No 48, Sch 2.18
[1].
Sec 7
Am 2009 No 56, Sch
3.4.
Sec 18
Am 1996 No 121, Sch
4.21 [2]; 2002 No 23, Sch 1.2 [2]; 2002 No 53, Sch 2.13; 2016 No 48, Sch 2.18
[2].
Sec 21
Am 2009 No 56, Sch
3.4.
Sec 37
Am 1996 No 121, Sch
4.21 [3]; 2002 No 23, Sch 1.2 [3]; 2016 No 48, Sch 2.18
[3].