Appointment of Examiners Outside NSW: Procedures for Practitioners

This Practice Note commences 17 August 2005.

Introduction

The purpose of this Practice Note is to set out the procedures to be followed when an examiner is to be appointed by the Court to take evidence outside NSW.

Making an application

An application to appoint a judge or master as examiner for the purpose of taking evidence interstate or overseas is made by notice of motion under the UCPR and SCR.

The notice of motion will address the following matters: • that a judge, master or other officer of the court be appointed an examiner pursuant to the rules; 

• that witnesses (usually named), be examined before a judge of the court in a specified place (in another state or overseas); 
• that the parties (if appropriate) arrange accommodation for the conduct of each examination and for transcription facilities;
• that the costs and expenses of, and incidental to, the examinations be borne in the first instance equally by the parties, and subject to any order of the trial judge, be treated as part of the general costs of the proceedings; 
• specifying that the examination order is conditional upon the payment into Court of an amount, to be subsequently determined, as provision for expenses of the examiner and staff in relation to the examination, when so ordered by the Court; and
• such other orders as are appropriate.

If the evidence is to be taken overseas, the supporting affidavit should address the following issues:

• whether or not each witness is an Australian citizen; and
•  whether or not each witness is to give evidence voluntarily. 

The application is referred to the relevant chief judge who will consult with the Chief Justice. If both judges concur, the orders will be made and the chief judge will nominate a judicial officer to be appointed examiner in the proceedings.