Pearce, A.G. v Senator the Honourable John Hutton

The applicants, Mr. and Mrs. Pearce, sought an order for a letter of request to be sent to the judicial authorities of Hong Kong to obtain evidence from Herbert Adamczyk, the managing director of German Motors Ltd of Hong Kong. The respondents opposed the application. The application had been delayed for a considerable time, and the principal difficulty was that the respondents might well need evidence from Hong Kong. The applicants had attempted to obtain evidence from Hong Kong but failed. They then sought an adjournment to enable investigations to be pursued in Hong Kong. The application for a letter of request was revived on the eve of the resumption of the hearing of the principal proceeding. The court was required to determine whether it was reasonable to allow the application for a letter of request. The court considered the expense and delay that would be involved in obtaining the evidence from Hong Kong. It also considered the evidence of Messrs. Hume and Fitzpatrick, which went further than dealing with the six vehicles in question. If Mr. Pearce's evidence was correct, the evidence of Messrs. Hume and Fitzpatrick could not be correct, as Mr. Pearce did not have any of the vehicles reserved in Hong Kong. The court held that it had power to make the order sought, and that there was no relevant treaty permitting the issue of a letter of request. The court considered the general considerations that arise in exercising the discretion to dispense with the rules of evidence. It concluded that the evidence of Messrs. Hume and Fitzpatrick should be admitted with respect to the examination of documents in Hong Kong and the circumstances surrounding this, in the proceedings for relief brought by Mr. and Mrs. Pearce. It would be relevant at least to the question of the information available to the respondents, if not to the other point. The court made an order that compliance with the rules of evidence be dispensed with to such extent as is necessary to admit the evidence of Messrs. Hume and Fitzpatrick with respect to the examination of documents in Hong Kong, as set out in detail in the affidavit of Mr. Fitzpatrick filed on 18 June 1985. It further directed that the evidence of Messrs. Hume and Fitzpatrick, the subject of its order, was for the present admitted only on the issue of the information available to the respondents with respect to the vehicles. The court reserved for further consideration the question whether it shall be admitted on the issue of whether the vehicles were in fact unlawfully imported.