JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: NOVOTNY & ANOR -v- TODD [2002] WASCA 79
CORAM: ANDERSON J
McLURE J
HEARD: 6 MARCH 2002
DELIVERED : 9 APRIL 2002
FILE NO/S: FUL 171 of 2001
BETWEEN: MICHAEL NOVOTNY
BACKLOAD PTY LTD (ACN 009 451 192)
AppellantsAND
ROBERT JOSEPH TORRANCE TODD
Respondent
Catchwords:
Practice and procedure - Taking of evidence abroad - Evidence solely directed at matters going to admissibility of documents - Whether within the scope of s 110 of the Evidence Act - Whether letters of request sought discovery - Whether materiality of evidence established
Legislation:
Evidence (Proceedings in other Jurisdictions) Act 1975 (UK), s 2
Evidence Act 1906 (WA), s 79C(1), s 79C(2a), s 109, s 110, s 111, s 112, s 113,
s 114, s 117(3) and (4)
Evidence Amendment Act No 66 of 1987 (WA)
Foreign Evidence Act 1994 (Cth)
Foreign Tribunals Evidence Act 1856 (UK), s 1
Supreme Court Act 1935 (WA), s 60(1)(f)
Supreme Court Rules 1971 (WA), O 38A and O 63A
Result:
Leave to appeal granted
Appeal allowed and respondent's application for letters of request dismissed
Category: B
Representation:
Counsel:
Appellants: Mr M H Zilko SC
Respondent: Mr P A Tottle
Solicitors:
Appellants: Williams & Hughes
Respondent: Tottle Christensen
Case(s) referred to in judgment(s):
Allstate Life Insurance Co & Ors v Australia & New Zealand Banking Group Ltd & Ors (No 18) (1995) 133 ALR 667
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Connell v The Queen (No 6) (1994) 12 WAR 133
Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 74 ALR 232
Hardie Rubber Co Pty Ltd v General Tire and Rubber Co (1973) 129 CLR 521
Mulley v Manifold (1959) 103 CLR 341
Panayiotou v Sony Music Entertainment (UK) Ltd (1994) Ch 142
Panthalu v Ramnord Research Laboratories Ltd [1966] 2 QB 173
Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647
Penn‑Texas Corporation v Murat Anstalt [1964] 1 QB 40
Rochfort v Trade Practices Commission (1982) 153 CLR 134
Smith v Smith [1975] 1 NSWLR 725
Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475
Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285
Case(s) also cited:
Georgini v Electric Power Transmission Pty Ltd [1963] NSWR 258
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
ANDERSON J: I agree with McLure J that leave to appeal should be granted, the appeal allowed and the respondent's application for issue of letters rogatory dismissed. My reasons for so concluding are slightly different from those expressed by McLure J, but I can state them briefly. They are as follows.
In my opinion, it is quite clear that the object of the respondent's application for the issue of letters of…
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- Novotny v Todd [2002] WASCA 79
- Case
- [2002] WASCA 79
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the evidence obtained via the letter of request was permissible under section 110 of the Evidence Act and whether it was solely for admissibility purposes or for broader discovery. The court needed to clarify the limits of its powers in responding to requests from foreign courts, particularly in relation to the admissibility of documents and the nature of the evidence sought.
The court examined the history and precedents surrounding the production of documents by corporations and the inherent jurisdiction of courts to request the production of documents from foreign courts. It considered the ratio from previous cases such as Penn-Texas Corporation v Murat Anstalt and Smorgon v Australia and New Zealand Banking Group Ltd, which provided insights into the ability of corporations to give evidence and the scope of inherent jurisdiction. The court ultimately concluded that the evidence obtained through the letter of request was within the permissible scope for establishing the admissibility of documents. It also found that the evidence was not sought for broader discovery purposes but specifically to address admissibility, aligning with the limitations set by comity and the inherent jurisdiction of courts.
The court's decision affirmed the admissibility of the evidence obtained through the letter of request, allowing Novotny to introduce it in the proceedings. The court's reasoning was grounded in established legal principles and precedents, ensuring clarity on the permissible scope of evidence from foreign courts and the specific purpose for which it can be sought.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
In Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647 the correctness of the second of the Court's conclusions in Penn‑Texas (No 1) relating to the production of documents was unsuccessfully challenged. However, in the course of affirming the existence of the power to make such an order, Lord Denning MR stated that a corporation could give evidence by its proper officer. Lord Denning examined the history of the procedure under a subpoena duces tecum and concluded that a person responding to the subpoena could be sworn for the limited purpose of giving evidence as to their possession or custody of the documents the subject of the subpoena. Stephen J in Smorgon v Australia and New Zealand Banking Group Ltd (1976) 134 CLR 475 at 484 regarded the issue as settled by Penn‑Texas (No 1) which reflected his own "uninstructed opinion" which was that a company could not give evidence by its proper officer. The Penn‑Texas cases were again referred to by the High Court in Rochfort v Trade Practices Commission (1982) 153 CLR 134. In that case the High Court was considering whether an officer of an unincorporated association was required to produce documents in answer to a subpoena. Mason J (at p 146) referred to the judgment of Lord Denning in Penn‑Texas (No 2) with approval. The limits on this Court's power to respond to a request from a foreign court is, or may be, a relevant consideration in framing requests to a foreign court. However, as these matters were not argued by the parties I will assume in the respondent's favour that a company can be compelled to attend, by its proper officer, to give oral evidence. Further, both parties appeared to accept the correctness of the conclusion of Gummow J in Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 74 ALR 232 that the court has no inherent jurisdiction to make an order requesting the production of documents. That question was considered by the Vice‑Chancellor, Sir Donald Nicholls in Panayiotou v Sony Music Entertainment (UK) Ltd (1994) Ch 142. He held that the English High Court had the power to issue a letter of request to the court of another country for assistance in obtaining the production of a document as evidence in an action pursuant to the inherent jurisdiction of the court. However, he concluded that the inherent jurisdiction was confined to a request for a particular document which is admissible in evidence, directly material to an issue in the action and which the court is satisfied exists or is likely to exist. These limitations appear to flow, as a matter of comity, from the limitations on the English court's powers to order production of documents at the request of a foreign court. In 1994 the power of an English court to respond to an incoming letter of request was contained in s 2 of the Evidence (Proceedings in other Jurisdictions) Act 1975. That section gave the court the power to order the production of documents. However, s 2(4) provided that:"An order under this section shall not require a person –(a)to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or(b)to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power."