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• Nature And Scope Of The Convention
• Current Situation At New Zealand Law
• Recommendation

6 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters

NATURE AND SCOPE OF THE CONVENTION

74 THE HAGUE CONVENTION on the Taking of Evidence Abroad in Civil or Commercial Matters was concluded on 18 March 1970. The following countries have ratified or acceded to the Convention:

Member States: Argentina, Australia, China, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Israel, Italy, Latvia, Luxembourg, Mexico, Monaco, Netherlands, Norway, Poland, Portugal, Slovakia, Spain, Sweden, Switzerland, United Kingdom, United States, Venezuela

Non-member States: Barbados, Singapore, South Africa

75 The purpose of the Convention was to establish a structure for obtaining evidence which would be acceptable to both common law and civil law systems, despite their inherent differences regarding the taking of evidence. Within the adversarial system of common law countries, the parties to a dispute have the duty to obtain the evidence they need to support their contentions. However, under the inquisitorial system adopted in civil law countries, it is the court that decides what evidence is necessary and orders its production.⁶⁷ A direct request for evidence from a party in a civil law country may risk offending that country’s concept of judicial sovereignty.⁶⁸

76 The Convention establishes two different methods for obtaining evidence abroad:

• letters of request, which ask the court in the State where the evidence or witness is located (the court addressed) to make the necessary orders (covered in articles 1–14); and
• taking of evidence by diplomatic officers, consular agents or commissioners, who are appointed by the court to take a deposition in the State where proceedings have been issued (the State of origin) (covered in articles 15–22).

77 The Convention applies to “civil and commercial matters”. This phrase was considered by the House of Lords in Re State of Norway⁶⁹ which involved a request that an English resident be examined in relation to litigation in Norway over a deceased person’s tax assessment. While a general principle of international law is that the penal or revenue law of one State will not be enforced in another,⁷⁰ the majority of the House of Lords concluded that to provide evidence for use in foreign proceedings is not to “enforce” the foreign law in England.⁷¹ Whether proceedings were a “civil or commercial matter” depended on the classification of those proceedings according to the law of the requesting court and the court to which the request was made.⁷²

78 The decision in Re State of Norway was referred to in Re [A] Films Ltd,⁷³ in which Judge Barber considered whether an inquiry under section 18 of the Inland Revenue Department Act 1974 was a “proceeding” for the purposes of section 55 of the District Courts Act 1947. Section 55(1) provides:

The District Court may, on application made in accordance with the rules, issue a commission, request, or order to examine witnesses abroad for the purpose of any proceedings.

The Judge concluded that this section did apply to a section 18 inquiry. The District Courts Act 1947 contemplated a wide range of District Court civil proceedings other than the basic jurisdiction specified in the Act, and a section 18 enquiry fell within that extended civil jurisdiction.⁷⁴

79 The Convention enables parties to request that particular procedures for taking evidence be adopted in order to ensure that the resulting evidence is admissible in the State of origin (articles 9 and 21). Nevertheless, as Kennett notes, the Convention is used infrequently, for two main reasons.⁷⁵ The first is the long delays involved when making requests for international judicial assistance.⁷⁶ The second reason is misunderstanding about the function and timing of pre-trial discovery of documents. In contrast to common law procedures for pre-trial discovery, the basic pattern in civil law countries is that the parties’ lawyers are required to attend a hearing at an early stage (perhaps a month after proceedings are commenced) so the court can determine whether the evidence is sufficient for a final hearing to take place. If not, the judge will decide what evidence is desirable to enable the case to be determined.⁷⁷

80 Kennett concludes that neither the Brussels Convention nor the Hague Evidence Convention is adapted to modern litigation techniques which rely heavily on provisional and protective measures.⁷⁸ She also observes that technology has developed since the Evidence Convention was negotiated and that cross-examination of witnesses via a television link is now permissible under Garcin v Amerindo Investment Advisors Ltd.⁷⁹ In Plumley v Ellis⁸⁰ Barker J noted that sections 19–23 of the Evidence Amendment Act 1994 permit a witness located in Australia to be compelled to give evidence by video-link or telephone conference.

CURRENT SITUATION AT NEW ZEALAND LAW

81 Existing New Zealand law governing the circumstances in which evidence can be taken abroad in support of New Zealand proceedings is complicated and cumbersome. It is therefore costly for litigants to use, particularly in the context of increasing cross-border litigation.

82 What law is appropriate to apply depends upon the following considerations:

• the particular court in which the New Zealand proceedings are being taken. For example, the rules for proceedings brought in the High Court differ from those applied in District Court proceedings;
• the country in which it is proposed to take evidence in support of the
  New Zealand proceedings. For example, there are some common procedures involving Commonwealth countries and there are other rules which govern relations between New Zealand and other countries at a bilateral level. In other cases, no formal instruments apply at all; and
• the nature of the particular litigation. For example, different rules may apply to criminal proceedings or to taxation proceedings which do not apply, more generally, to civil proceedings.

83 In regard to High Court proceedings, the taking of evidence abroad is governed by the Evidence Act 1908 (sections 48–48J), Evidence Amendment Act (No 2) 1980, Evidence Amendment Act 1994 and High Court Rules (HCR) 1985. In the District Court, the issues are governed by the various Evidence Acts and by the District Courts Act 1947 (section 55). The Evidence Amendment Act 1994 makes particular provision for evidence to be given by video-link or telephone conference from Australia.⁸¹

84 The Law Commission has recently reported on an extensive review of the law of evidence.⁸² In that report, the Commission observed that scattered through a number of statutes were various provisions setting out the circumstances in which evidence may be obtained overseas for use in New Zealand, and obtained in New Zealand for use overseas. Specific reference was made to particular provisions in the Evidence Act 1908 and its amendments. The Commission recommended that these provisions be gathered together in a single statute but mentioned that another method of dealing with the problem would be to accede to this Convention on the Taking of Evidence Abroad. The Commission expressed the view that a separate review of these provisions was required as issues arose that were distinct from those addressed in the Commission’s proposed Evidence Code.⁸³

85 We do not propose to examine in detail the provisions governing the taking of evidence abroad in support of New Zealand proceedings. Rather, we set out the relevant provisions in appendix B and summarise below some of the practical difficulties that arise from the use of the provisions.

• While section 44 of the Evidence Amendment Act (No 2) 1980 confers on a New Zealand court the power to request a corresponding court in “a prescribed country” to make an order for the examination of a witness or the production of any specified document, no countries have, in fact, been prescribed under section 38 of that Act.
• Because the term “proceeding” is defined in section 2 of the District Courts Act 1947 as excluding interlocutory applications, there is a question of whether evidence for use in interlocutory applications can be sought in the District Court notwithstanding the wider definition of the term “proceeding” in, for example, the Evidence Amendment Act (No 2) 1980.⁸⁴
• While section 46(3) of the Evidence Amendment Act (No 2) 1980 provides that “Letters of Request shall be transmitted to and from an overseas Court through such channels as may be prescribed by rules of Court”, it appears that no procedure has been prescribed by either the HCR or the District Court Rules (DCR). Traditional methods of communication through diplomatic channels can be cumbersome. It should also be noted that HCR 371 and 372 provide a procedure for examination of a witness before an examiner.

RECOMMENDATION

86 The Commission recommends that the Ministry of Justice give serious consideration to adopting this Convention to supplement New Zealand’s law of evidence. A number of our significant trading partners are party to this Convention. Moreover, it is questionable whether New Zealand’s existing mechanisms for taking evidence abroad are workable and cost efficient.

87 In addition to the problems noted above, there are countries where a New Zealand judge or court officer cannot lawfully take evidence or administer an oath, and where the local courts will not provide assistance in the absence of a convention providing for this action. Even where it is possible for a New Zealand representative to take evidence in a foreign country, usually it will not be possible to compel witnesses to attend before that representative if they will not do so voluntarily, and there are no practical sanctions for perjury where an oath has been administered by a New Zealand representative. While it has been criticised for its lengthy procedures,⁸⁵ the Convention would go some way towards addressing these problems. Even if the Convention were not adopted, it would be desirable to consolidate the provisions relating to foreign evidence contained in the various statutes and the HCR.