STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd
[2010] FCA 1002
FEDERAL COURT OF AUSTRALIA
STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd
[2010] FCA 1002
Citation: STX Pan Ocean Co Ltd v Bowen Basin Coal Group Pty Ltd [2010] FCA 1002 Parties: STX PAN OCEAN CO., LTD v BOWEN BASIN COAL GROUP PTY LTD (ACN 141 187 760), DAVID JOHN THOMSON and BEACH BUILDING AND CIVIL GROUP PTY LTD (ACN 081 893 414) File number: NSD 561 of 2010 Judge: RARES J Date of judgment: 3 September 2010 Catchwords: EVIDENCE – oath or affirmation – whether affidavit attested before a notary public in accordance with South Korean law amounts to an oath or affirmation in a similar form to the Schedule to s 21(4) of the Evidence Act 1995 (Cth) – sufficient acknowledgment of the gravity and importance of the truth being told required to amount to an affirmation
Held: the attestation is in a form sufficient to comply with s 21(4) of the Evidence Act 1995 (Cth)
Legislation: Evidence Act 1995 (Cth) s 21
Federal Court of Australia Act 1976 (Cth) s 45Cases cited: R v Governor of Pentonville Prison; Ex parte Singh [1981] 3 All ER 23 followed
Reg. v Governor of Pentonville Prison; Ex parte Passingham [1983] 2 AC 464 referred to
R v Climas (1997) 74 SASR 411 appliedDate of hearing: 3 September 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 15 Counsel for the Plaintiff: P King Solicitor for the Plaintiff: Hicksons Counsel for the Second Defendant: A Morris QC Solicitor for Second Defendant: Worcester & Co
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 561 of 2010
BETWEEN: STX PAN OCEAN CO., LTD
PlaintiffAND: BOWEN BASIN COAL GROUP PTY LTD (ACN 141 187 760)
First DefendantDAVID JOHN THOMSON
Second DefendantBEACH BUILDING AND CIVIL GROUP PTY LTD (ACN 081 893 414)
Third Defendant
JUDGE:
RARES J
DATE OF ORDER:
3 SEPTEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The affidavit made by Jung-Hyun Ahn on 19 July 2010 in South Korea may be read, subject to the taking of any proper objections, at the resumption of the trial on 13 October 2010, provided that Mr Ahn is available for cross-examination on that occasion, unless Mr Thomson notifies that he is no longer required for that purpose.
2.The costs:
(a)thrown away by the necessity to raise the objection to the said affidavit at the directions hearing on 20 August 2010 be paid by the plaintiff;
(b)of the objection to the admissibility of the same affidavit be paid by the second defendant.
(c)in orders 2(a) and (b) may be set off.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 561 of 2010
BETWEEN: STX PAN OCEAN CO., LTD
PlaintiffAND: BOWEN BASIN COAL GROUP PTY LTD (ACN 141 187 760)
First DefendantDAVID JOHN THOMSON
Second DefendantBEACH BUILDING AND CIVIL GROUP PTY LTD (ACN 081 893 414)
Third Defendant
JUDGE:
RARES J
DATE:
3 SEPTEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
The issue I must determine is whether a document that appears to be an affidavit attested before a notary public in the Republic of South Korea has been sworn or affirmed by its maker so as to be admissible as evidence.
When this matter was before me at the time of the trial in early July 2010, the plaintiff, STX Pan Ocean Co Limited, was granted leave to re-open to adduce evidence limited to the issue of the quantum of damages which it claimed against the second defendant, David Thomson. Mr Thomson was a director and shareholder of the first defendant, Bowen Basin Coal Group Pty Limited, against whom, on 1 July 2010, I had entered judgment on the writ for $US2,483,296.25. The nature of STX’s claim was for damages for being induced to enter into charterparties of two vessels by Mr Thomson’s alleged misrepresentations and for consequential losses. The damages hearing has been fixed for 13 October 2010.
BACKGROUND
During the course of the trial, Mr Thomson had objected to a document that he said purported to be an affidavit made by Jung-Hyun Ahn in South Korea. This affidavit, on its face, did not appear to have been sworn or affirmed by Mr Ahn at all, the jurat on the third page of the text of the affidavit being blank. A notarial certificate was attached to that affidavit. It was in a form that identified Mr Ahn as having personally appeared before the notary, admitted his subscription to the affidavit, placed his chop (i.e. a type of seal) on it, and having attested it before the notary. Initially, Mr Thomson objected to the admissibility of this affidavit because, on its face, it did not appear to have been verified on oath or by affirmation in accordance with s 21 of the Evidence Act 1995 (Cth). This objection was taken without any prior notice during the hearing. There was no opportunity for STX to remedy it since Mr Ahn had not been required for cross-examination. I indicated that if Mr Thomson maintained the objection I would uphold it, but I also said that I would adjourn the trial and permit STX to call Mr Ahn and order costs against Mr Thomson on an indemnity basis for the failure to identify the objection in a timely way so as to avoid this necessity. At that point the objection was withdrawn and Mr Ahn’s affidavit was read without relevant objection.
I made orders for the adducing of additional evidence on damages on 6 July 2010. As a result a further affidavit of Mr Ahn has been filed that bore a notarial certificate dated 19 July 2010 in the same form as the earlier one. When the matter came before me on 20 August 2010, Mr Thomson objected to this latest affidavit as being inadmissible and to any attempt by STX to lead further evidence in support of its damages claim. I accepted the argument put by Mr Thomson that it was unsatisfactory that the very deficiency that had been highlighted at the trial, had appeared to have been left unaddressed when Mr Ahn’s affidavit of 19 July 2010 was filed and served. After hearing the parties, I ordered that STX have leave to file and serve on or before 27 August 2010 an affidavit, or affidavits, deposing as to whether the manner of execution of Mr Ahn’s affidavit of 19 July 2010 by him, amounted to verification of its contents as true for the purposes of the law of the Republic of South Korea.
ATTESTATION IN SOUTH KOREA
As a consequence of my order of 20 August 2010, today STX read, without objection, an affidavit of Kim Young Ju sworn before an Australian Consular officer in Seoul, South Korea on 27 August 2010. Ms Kim is a lawyer who has been in practice since 2003. She has been in the employ of STX since April 2010, but was previously employed by third party lawyers as a commercial lawyer familiar with the law of international commerce. She considered the form of notarisation of three affidavits of Mr Ahn of 11 June, 6 and 19 July 2010 and explained the following.
The law of South Korea requires a person executing a document to do so by placing his signature and chop on each page of a statement or affidavit. The chop must also be placed on any attachment to the statement or affidavit and on the first page of any annexure. South Korean law also requires a notarial certificate to be attached to the statement or affidavit and signed by the notary public with his or her chop. The certificate must state that the person executing the document had appeared before the notary public, had admitted or acknowledged the subscription or acceptance of the statement or affidavit and had attested to that fact, and the signatory had then to sign the statement or affidavit before the notary public. Under the law of South Korea it is not necessary to swear an oath upon religious conviction or otherwise for the making of a valid statement or affidavit. Ms Kim said:
“‘Attest’ under the laws of South Korea means that the notary public asks the person executing the statement or affidavit or other document, to read it in his or her presence and to admit or state the truth of it and then sign and stamp or chop the document in the presence of the notary public.”
She said that South Korean law accepted as admissible and valid any statement that had been read over, signed, and verified by a chop. In her opinion, each of the affidavits which Mr Ahn had signed and put his chop on that had been attested by a notary public, had been verified in accordance with and under South Korean law and would be admissible in evidence in civil proceedings in a court of law in that country in that form.
MR THOMSON’S ARGUMENT
Mr Thomson accepts that each of Mr Ahn’s affidavits has been validly attested under South Korean law in the sense that a notary public has verified validly the documents to which their certificates were attached. But he argued that this process did not amount to a verification of the affidavits for the purposes of s 21 of the Evidence Act or s 45 of the Federal Court of Australia Act 1976 (Cth).
CONSIDERATION
Relevantly, s 21 of the Evidence Act provides:
“(1)A witness in a proceedings must either take an oath or make an affirmation before giving evidence.
…
(4)The witness is to take the oath, or make the affirmation, in accordance with the appropriate form in the Schedule or in a similar form but such an affirmation has the same effect for all purposes as an oath.” (emphasis added)
The schedule to the Evidence Act provides, relevantly, that the forms of oath and affirmation by a witness are as follows:
“I swear … by Almighty God … the evidence I shall give … will be the truth, the whole truth and nothing but the truth.
I solemnly and sincerely declare and affirm … that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.”
The question, therefore, is whether the attestation before a notary public in accordance with the law of South Korea, as deposed to by Ms Kim, amounts to a witness taking an oath, or making an affirmation in a similar form to that in the Schedule to the Evidence Act. In R v Governor of Pentonville Prison; Ex parte Singh [1981] 3 All ER 23 at 27, Ackner LJ sitting in the Divisional Court of the Queens Bench Division, discussed what amounted to an affirmation for the purposes of the law of England. He said that no particular formula had to be used, but that the mere signature to a document or verbal acknowledgement that its contents were correct could not amount to an affirmation. He then answered the question as to where the line was to be drawn:
“The answer cannot be precise. It must be a matter of fact and degree dependent on the particular circumstances of the case. I do not consider that the affirmation need take place prior to the making of the statement. What is required, where the statement has been made, is its adoption in circumstances which recognise the gravity and importance of the truth being told on the particular occasion.” (emphasis added)
The emphasised formulation was adopted as correct and “as an appropriate criterion to apply to an affirmation taken otherwise than upon oath by a non-judicial officer of a foreign state” by Lord Diplock, with whose speech Lords Wilberforce, Keith of Kinkel and Brightman agreed in Reg. v Governor of Pentonville Prison; Ex parte Passingham [1983] 2 AC 464 at 471G-472A. His Lordship then went on to discuss the requirements of the extradition law in England at the time. In R v Climas (1997) 74 SASR 411 at 428 [111] Lander J, with whom Millhouse J stated his broad agreement, said that for the purpose of the Evidence Act 1929 (SA) an affirmation had to recognise the gravity and solemnity of the occasion on which the statement was made and the importance the person must attach to truthful evidence, referring to what Ackner LJ had said in the passage I have quoted.
I am satisfied that the attestation by Mr Ahn before a notary public in the manner described by Ms Kim amounts to his having made an affirmation in a similar form to that required in the Schedule to the Evidence Act in accordance with s 21(4). Mr Ahn had been asked before he executed the affidavit, by signing it and placing his chop on it, to read it, to admit or state its truth and then sign and stamp or chop it all in the presence of the notary. For the purposes of the law of South Korea, that would have been sufficient to render the evidence in the affidavit admissible as evidence of the truth of what was said in it. In my opinion, that amounted to a sufficient acknowledgement or adoption of the contents of the affidavit in circumstances that recognised the gravity and importance of the truth being told by Mr Ahn on the occasion of his making his appearance to attest it before the notary public.
For these reasons, I am satisfied that the form of the notarial certificate amounted to Mr Ahn having affirmed his affidavit sufficiently in the form required to comply with s 21(4). To the extent that there may be any departure from s 21(4), I am satisfied that, because Mr Ahn will be required for cross-examination, no prejudice will be suffered by Mr Thomson by my ruling that the affidavit is admissible and allowing it to be able to be tendered at the resumption of the hearing. I emphasise that I am not ruling on the admissibility of the various statements in the affidavit, beyond dealing with the issue of its form. The affidavit may be read subject to the taking of any proper objections at the resumption of the trial on 13 October 2010, provided that Mr Ahn is available for cross-examination on that occasion, unless Mr Thomson notifies that he is no longer required for that purpose.
Mr Thomson seeks costs. In my opinion, the appropriate order in the circumstances is that costs thrown away by the necessity to raise the objection at the directions hearing on 20 August 2010 should be paid by STX. The costs of taking the objection to Mr Ahn’s affidavit’s admissibility should be paid by Mr Thomson. Those costs may be set off.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 10 September 2010
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