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Baston v Secretary for Justice [1989] NRSC 3; [1980-1989] NLR (14 July 1989)

[1980-1989]
[Ed – No page no. in original]

IN THE SUPREME COURT OF NAURU

CIVIL ACTION NOS. 16, 17, 18 & 19 OF 1986

HENRY M.J. BASTON
ANTHONY L ALLEN
MAXWELL COOPER & OTHERS
GRAEME K PALLISTER
Plaintiffs

vs

SECRETARY FOR JUSTICE
Defendant

ORDER

I have considered the request of counsel for the plaintiffs on the taking of evidence by deposition in Melbourne of witnesses for the respective plaintiffs.

On further consideration of the matter, my attention is drawn to Order 33 Rule 2(1)(b) of the Civil Procedure Rules 1972 and to Form No. 24 of Appendix A thereof.

The Order made in these matters was a consent order on a motion for directions and no submissions were made by either Counsel for the plaintiffs or the Republic defendant as to matters which on my reading of the Rule, should have been addressed in relation to the jurisdiction to make the Order they sought. The rule makes it clear that such evidence by deposition cannot be taken unless Australia "allows a person in Australia to be examined before a person appointed by" this Court. I am advised that Australia has not given approval for the operation of Rule 2(1)(b). It has never been requested by Nauru for any approval. Such approval is a prerequisite to any Order made herein.

In the circumstances, I am satisfied the Order already made cannot stand. There is no jurisdiction for its operation. I am also satisfied that an order under the Rule cannot be made on a motion for directions. There shall be a specific motion directed to the Rule. The requisite approval of Australia must be first obtained. Presumably this would have to be obtained by the executive. It should also be noted that the current Order has not been drawn up and perfected by the signing and sealing thereof.

I conclude that if it is desired that evidence be taken in the manner sought by the parties, on application for any Order therefore must be considered "de novo".

GAVEN DONNE
CHIEF JUSTICE

14/7/89