Attorney General for Western Australia v May
[2024] WASC 182
•16 MAY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- MAY [2024] WASC 182
CORAM: STRK J
HEARD: 24 APRIL 2024
DETERMINED : 24 APRIL 2024
PUBLISHED : 16 MAY 2024
FILE NO/S: CIV 1429 of 2024
EX PARTE
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Applicant
AND
JAMES MICHAEL MAY
First Respondent
JENNIFER DAWN MAY
Second Respondent
Catchwords:
Evidence - Letter of request from a foreign court for assistance in obtaining evidence - Evidence Act 1906 (WA) s 116 and s 117 - Turns on own facts
Legislation:
Evidence Act 1906 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | E Heywood |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
Solicitors:
| Applicant | : | State Solicitor's Office |
| First Respondent | : | No appearance |
| Second Respondent | : | No appearance |
Case(s) referred to in decision(s):
Application of Securities and Exchange Commission of USA under Evidence on Commission Act 1995 (NSW) (No 2) [2020] NSWSC 1500
Attorney General for Western Australia v Fletcher [2023] WASC 346
British American Tobacco (Investments) Ltd v Sharon Y Eubanks for the United States of America [2004] NSWCA 158
STRK J:
(This judgment was delivered extemporaneously on 24 April 2024 and has been edited from the transcript to include complete references and so as to correct infelicities of language.)
A Letter of Request for International Judicial Assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters was issued by the Regional Court in Prague of the Czech Republic on 23 August 2023 (the Letter of Request).
In furtherance of the Letter of Request, by an ex parte application made by an originating motion filed on 18 April 2024 (the Application), the Attorney General for the State of Western Australia, on instructions from the Commonwealth Attorney General, applied for orders pursuant to s 116 and s 117 of the Evidence Act 1906 (WA) for the examination of James Michael May and Jennifer Dawn May, for the purpose of a proceeding known as case number 28 Co 30/2023 in the Regional Court in Prague (the Prague proceeding).
The Application was supported by the affidavit of Patricia Anna Femia affirmed on 17 April 2024, to which Ms Femia attached three documents, marked 'A' to 'C'. Ms Femia is an Assistant State Counsel employed by the State Solicitor for the State of Western Australia, who acts as solicitor for the Attorney General for the State of Western Australia. The Application was accompanied by a certificate of urgency and a minute of proposed orders.
At the hearing of the Application, counsel read Ms Femia's affidavit. Among other things, Ms Femia deposed that the Application was made with the consent of the Attorney General of the State of Western Australia; and to her belief that the Regional Court in Prague was desirous of obtaining evidence from each of the respondents in relation to a matter in that court. Among other things, Ms Femia attached to her affidavit a true copy of the Letter of Request in the Czech language, and a copy of the Letter of Request which had been translated into the English language.
From the affidavit of Ms Femia, I understood that the Prague proceeding concerns the division of matrimonial property of former spouses Ms Lucie Boková, the applicant in the Prague proceeding, and Mr Jonathan William May, the respondent in the Prague proceeding; the proposed witnesses (that is, the respondents to the proceeding before this court) are the parents of Mr Jonathan May; and the subject matter of the examination will be matters relating to the property acquired during the marriage of Ms Lucie Boková and Mr Jonathan May.
The Letter of Request, signed by the Chairing Judge, JUDr. Martina Štolbová, disclosed that it is intended that the proposed witnesses be questioned via videoconference by an officer of the Regional Court in Prague, that court having arranged for (and had agreed to meet the costs of) an interpreter. Further, it is intended that the instruction of the proposed witnesses as to their obligations under Czech law will be ensured by them being instructed during the videoconference.
Among other things, in the event that the videoconference cannot be held for technical or other reasons, the Regional Court in Prague has requested that a competent Australian court question the proposed witnesses on the 11 issues set out by the Chairing Judge in the Letter of Request, which appear to be questions relating to the property acquired during the marriage of Ms Lucie Boková and Mr Jonathan May.
I also understood from Ms Femia's affidavit that the examination was intended to be conducted by legal counsel for the parties in the Prague proceeding, whom Ms Femia deposed was, in her opinion, a fit and proper person to conduct such examinations.
Disposition
The legislative framework pursuant to which the Letter of Request was issued, and the principles governing the exercise of power, were recently summarised by Acting Master McDonald in Attorney General for Western Australia v Fletcher [2023] WASC 346 at [18] to [42], which I gratefully adopt without repeating here.
Compliance with the Rules of the Supreme Court
Order 39 of the Rules of the Supreme Court 1971 (WA) concerns the taking of evidence for foreign and Australian courts, and the procedural requirements of this court with respect to an application made under s 116 of the Evidence Act are prescribed in O 39 r 2.
The Application was made in a form that satisfied the procedural requirements of the Rules of the Supreme Court. Further, the applicant moved for orders to be made pursuant to s 117 of the Evidence Act in the prescribed form.[1]
Compliance with the Evidence Act
[1] Rules of the Supreme Court O 39 r 3(1), Form No. 30.
In determining the Application, the court must determine whether it is satisfied of the matters set out in s 116(1) of the Evidence Act and, if so, whether orders should be made under s 117. That is, even if the requirements of s 116(1) are met, the court has a discretion whether (and in what terms) to make an order under s 117 of the Evidence Act.[2]
[2] Attorney General for Western Australia v Fletcher [64], citing Application of Securities and Exchange Commission of USA under Evidence on Commission Act 1995 (NSW) (No 2) [2020] NSWSC 1500 [126] and British American Tobacco (Investments) Ltd v Sharon Y Eubanks for the United States of America [2004] NSWCA 158 [14].
For the purposes of s 116(1)(a), I was satisfied that the Application was made in pursuance of a request issued by or on behalf of a court exercising jurisdiction in a place outside Western Australia. Further, I was satisfied pursuant to s 116(1)(b) that the evidence to which the Application relates was to be obtained for the purposes of the Prague proceeding, which proceeding had been instituted before the requesting court. Those criteria were clear from the Letter of Request itself.
Sections 117 to 118B of the Evidence Act do not apply in respect of proceedings in relation to the commission of an offence unless the requesting court is in Australia or New Zealand.[3] I was satisfied that the Prague proceeding did not relate to the commission of an offence.
[3] Evidence Act s 116(2).
The power in s 117 of the Evidence Act to make orders for the obtaining of evidence is subject to two prohibitions. First, an order under s 117 shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of proceedings in this court.[4] I accepted that the examination of witnesses with respect to matters relating to the property acquired during the marriage of Ms Lucie Boková and Mr Jonathan May, was a step that could be required to be taken by way of obtaining evidence for the purposes of a proceeding in this court.
[4] Evidence Act s 117(4).
The second limitation is specific to the production of documents,[5] and I was satisfied that by the Letter of Request, the Regional Court in Prague did not press for the production of documents.
[5] Evidence Act s 117(6)(b).
Conclusion and orders
In light of the evidence before the court, and having been satisfied that the Application had been made in pursuance of a request by the Regional Court in Prague exercising jurisdiction in the Czech Republic; and the evidence to which the Application related was to be obtained for the purposes of a proceeding instituted before the Regional Court in Prague, I made orders under s 117 of the Evidence Act, which are reproduced at sch A to these reasons.
The orders contemplate the examination of witnesses on 23 May 2024, and the relisting of the Application for directions on 10 May 2024. The relisting was to afford counsel for the applicant time to liaise with the Regional Court in Prague to obtain confirmation, among other things, as to the language spoken by the respondents, and that the interpreter secured by the Regional Court in Prague was appropriately qualified and independent, meeting the competency requirements set out in this Court's Consolidated Practice Directions PD 9.13 (Interpreting and Language Services Guidelines).
Sch A - Orders made on 24 April 2024
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SE
Associate to the Honourable Justice Strk
16 MAY 2024
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