Application by 24/7 Customer, Inc (No 3)

[2018] NSWSC 1065

Supreme Court

New South Wales

Medium Neutral Citation:	Application by 24/7 Customer, Inc (No 3) [2018] NSWSC 1065
Hearing dates:	9 July 2018
Date of orders:	09 July 2018
Decision date:	09 July 2018
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Orders sought made.
Catchwords:	EVIDENCE – Evidence on Commission Act 1995 – ex parte application – r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) – order seeking to revoke earlier orders – orders sought made
Legislation Cited:	Evidence on Commission Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Application by 24/7 Customer, Inc [2017] NSWSC 1609 Application by 24/7 Customer, Inc (No 2) [2017] NSWSC 1708
Category:	Procedural and other rulings
Parties:	24/7 Customer, Inc (Plaintiff)
Representation:	Counsel: Dr RCA Higgins SC (Plaintiff)   Solicitors: Corrs Chambers Westgarth (Plaintiff)
File Number(s):	2017/352952
Publication restriction:	Nil

EX TEMPORE Judgment

1. HER HONOUR: In 2017 I made orders under s 32 and s 33 of the Evidence on Commission Act 1995 (NSW) in relation to the proposed examination of Elizabeth Anne Parkin, giving effect to letters of request issued by the Honourable Kandis A Westmore, a US magistrate judge, United States District Court for the Northern District of California United States of America, for the purpose of proceedings brought in that court by Life Person Inc: see Application by 24/7 Customer, Inc [2017] NSWSC 1609 and Application by 24/7 Customer, Inc (No 2) [2017] NSWSC 1708

2. The Honourable Kandis A Westmore has issued a further letter of request of 3 May 2018, requesting judicial assistance in vacating the orders earlier made as to the oral examination of Ms Parkin.

3. 24/7 Inc has now applied ex parte by motion seeking that the Court exercise its powers under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) to revoke its earlier orders.

4. While r 52 of the Uniform Civil Procedural Rules governs applications made under s 33 of the Evidence on Commission Act, neither that Act nor Pt 52 deal expressly with an application such as this, for the vacation of orders earlier made by the Court. Rule 52 relevantly provides:

“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.”

5. I accept that in the circumstances the application which has been brought by motion satisfies the requirements of Part 52, and that it is the Court's general powers which arise to be exercised on this further application under the Evidence on Commission Act, to have the earlier examination orders revoked.

6. The application is supported by an affidavit sworn by Ms Bell, one of 24/7 Customer Inc solicitors, to which is annexed relevant documents, including the US Court's further May 2018 letter of request. There Ms Bell explains the circumstances in which the examination of Ms Parkin came to be unnecessary, with the result the application for the further letter which the US court issued.

7. Affidavits sworn by another 24/7 Customer Inc solicitor, Mr Pagent, in November and December 2017 shed further light on those circumstances, which it is unnecessary to explain.

8. The application has been made ex parte, but also in evidence is correspondence from Ms Parkin's solicitor, indicating that she consents to the application and does not wish to be heard. There is a similar communication from Life Person Inc, the other party to the US proceedings and from Ms Parkin's former employer, SingTel Optus Pty Limited, who also had an interest in the orders which the Court earlier made in relation to Ms Parkin's examination.

9. Rule 36.15.2 empowers the Court to set aside an order if the parties to the proceedings consent. Otherwise the Court has power to set the orders aside under r 36.15.3, the circumstances not falling within the exceptions specified in paragraphs (a) or (b).

10. As the proceedings were commenced and pursued ex parte, 24/7 Customer Inc is the only party, but the evidence establishes that the other party to the US proceedings, as well as the subject of the Court's earlier orders, Ms Parkin both consent to the making of the order sought.

11. In all of those circumstances I am satisfied that the Court's power should be exercised in order to give effect to the US court's further request.

Order

12. Accordingly I order that the orders made on 23 November and 7 December 2017 be set aside.

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