Billis v McLernon - [2019] WASC 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   BILLIS -v- McLERNON [2019] WASC 156
CORAM:   KENNETH MARTIN J
HEARD:   3 MAY 2019
DELIVERED          :   13 MAY 2019
FILE NO/S:   CIV 2439 of 2018
BETWEEN:   ANTHONY BILLIS
Plaintiff
AND
TERENCE JOHN McLERNON
Defendant

Catchwords:

Practice and procedure - Taking of evidence abroad - Application for court to issue letter of request to foreign judicial authority - Evidence Act 1906 (WA) s 110(2) considered - Interests of justice - Order for letter to issue subject to a final inquiry

Legislation:

Evidence Act 1906 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Prima facie application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr G Mukherji
Defendant	:	In person

Solicitors:

Plaintiff	:	Tindall Gask Bentley Lawyers
Defendant	:	In person

Case(s) referred to in decision(s):

Novotny v Todd [2002] WASCA 79

KENNETH MARTIN J:

(This judgment was delivered extemporaneously on 3 May 2019 and has been edited from the transcript.)

I am dealing with the plaintiff's application made by a chamber summons on 2 May 2019. I have given leave for the chamber summons to be made returnable on 3 May 2019.
By his application, the plaintiff seeks to rely upon s 110(1)(c) of the Evidence Act 1906 (WA) in order to have the court issue a letter of request to the judicial authorities of the United States of America to take or cause to be taken evidence, including the provision of documents from a proper officer of the international corporation Google LLC, pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters (Hague Evidence Convention).

Legislative background

The particular provisions of s 110(1)(c) of the Evidence Act provides:
In any civil or criminal proceedings before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, on the application of a party to the proceeding, make, in relation to a person outside the State, an order -
...
(c)for the issue of a request to the judicial authorities of a place outside the State to take, or cause to be taken, the evidence of the person.
Section 110(2) of the Evidence Act is also relevant to this application because it provides that:
In determining whether it is in the interests of justice to make an order under subsection (1) in relation to the taking of evidence of a person, the matters to which the court shall have regard include the following -
(a)whether the person is willing or able to come to Western Australia to give evidence in the proceeding;
(b)whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c)whether, having regard to the interests of justice to the proceeding, justice will be better served by granting or refusing the order.
In Novotny v Todd [2002] WASCA 79, McLure J (as her Honour then was) made the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Billis v McLernon

Details

AGLC: Billis v McLernon [2019] WASC 156
Case: [2019] WASC 156
Decision Date: 13 MAY 2019

CaseChat Overview and Summary

The parties to the case were Billis and McLernon. The nature of the dispute was whether the court should issue a letter of request to a foreign judicial authority to obtain evidence from abroad. The case was heard in the Supreme Court of Western Australia. The plaintiff sought an order for the court to issue a letter of request under section 110(2) of the Evidence Act 1906 (WA) to a court in France to obtain evidence from witnesses residing there. The defendant opposed the application on the grounds that the evidence was not necessary or relevant to the proceedings and that obtaining it would be an undue burden on the French court.

The legal issues before the court were whether the interests of justice required the evidence to be obtained and whether the order should be made subject to a final inquiry. The court considered the relevant statutory provisions and case law on the taking of evidence abroad. The court held that the interests of justice required the evidence to be obtained, but that the order should be made subject to a final inquiry. The court found that there was a real possibility that the evidence would be material and that it was necessary to determine whether the evidence was indeed relevant and necessary to the proceedings. The court also found that the order should be made subject to a final inquiry to ensure that the interests of justice were properly balanced with the potential burden on the French court.

The court made an order that a letter of request be issued to the French court, but that the letter should be subject to a final inquiry before it was sent. The court held that this approach would allow the parties to make submissions on the necessity and relevance of the evidence and would ensure that the interests of justice were properly balanced with the potential burden on the French court. The court also noted that the order was not a final determination of the application and that the parties would have an opportunity to make further submissions at the final inquiry.

The final orders of the court were that a letter of request be issued to the French court, subject to a final inquiry. The court held that this approach would allow the parties to make submissions on the necessity and relevance of the evidence and would ensure that the interests of justice were properly balanced with the potential burden on the French court. The court also noted that the order was not a final determination of the application and that the parties would have an opportunity to make further submissions at the final inquiry.

Orders