Yamouchi v Kishimoto - [2002] NTSC 36

Yamouchi v Kishimoto [2002] NTSC 36
PARTIES:TOYATAKE YAMOUCHI

v
CHIZYKO KISHIMOTO

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:32/98 (9812964)
DELIVERED:  7 June 2002
HEARING DATES:  23, 24, 27, 29, 30 and 31 May 2002
JUDGMENT OF:  THOMAS J
CATCHWORDS:

PROCEDURE – Supreme Court Procedure – taking of evidence abroad – application for letter of request seeking permission from Japanese authorities for Japanese witnesses to give evidence via video link to the Supreme Court of the Northern Territory of Australia – application for letter of request seeking consent of competent judicial authority to take evidence of Japanese witnesses on commission – application refused.
Supreme Court Rules 1994 (NT) O.41, O.41.13, O.41.01(1)(b)
Evidence Act 1994 (NT), s 49E, s 50
Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970, Department of Foreign Affairs & Trade Canberra, Australian Treaty Series 1992 No. 37, (Hague Convention)
REPRESENTATION:
Counsel:
Appellant:S. Walsh QC and S. Gearin
Respondent:  J. Reeves QC and B. O’Loughlin
Solicitors:
Appellant:K. Hardy
Respondent:  R. Bennett
Judgment category classification:        C
Judgment ID Number:  tho200206
Number of pages:  9

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Yamouchi v Kishimoto [2002] NTSC 36
No. 32/98 (9812964)

BETWEEN:
TOYATAKE YAMOUCHI

Appellant
AND:
CHIZYKO KISHIMOTO

Respondent

CORAM: THOMAS J
REASONS FOR JUDGMENT
(Delivered 7 June 2002)

This is an application made by Mr Walsh QC on behalf of the plaintiff for an order pursuant to Order 41.01(1)(b) of the Rules for a letter of request to issue from this Court.
The application relied on the supporting affidavit of Kate Julia Hardy sworn 25 March 2002 and affidavits of Ai Inoue sworn 7 May and 10 May 2002. Affidavit of Hideki Shimizu sworn 7 May 2002 and affidavit of Roger Phillip Bennett sworn 13 May 2002.
The application refers to four witnesses who are residents of Japan. The plaintiff seeks to have the evidence of the respective witnesses given in this trial by way of video link between Japan and the Supreme Court of the Northern Territory of Australia.
In the alternative the letter of request seeks the consent of the competent judicial authority to take evidence on commission allowing for representation on behalf of the plaintiff and the defendant including examination in chief, cross examination and re-examination and that such evidence be reduced to writing with proper identification of any documents produced at the hearing and requesting transmission of this material to the Supreme Court of the Northern Territory of Australia.
However, the primary purpose of the letter of request is to seek permission from the relevant authority in Japan for the evidence of Japanese witnesses to be given via video link to the Supreme Court of the Northern Territory.
Order 41.01(1)(b) of the Supreme Court Rules provides as follows:
“41.01 Order for witness examination
(1) The Court may, for the purposes of a proceeding, make an order for –
…..
(b)…

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.

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Details

Case: [2002] NTSC 36
Decision Date: 7 June 2002

CaseChat Overview and Summary

In the case of Yamouchi v Kishimoto, the applicant sought a letter of request for permission from Japanese authorities to allow Japanese witnesses to provide evidence via video link to the Supreme Court of the Northern Territory. The application also sought consent from the competent judicial authority to take evidence from the witnesses on commission. The application was refused. The evidence in support of the application was deemed insufficient, and the court required more information regarding the relevant Japanese laws and procedures governing the taking of evidence by video transmission from Japan to Australia.

The legal issues before the court involved determining whether evidence could be taken from Japanese witnesses by video link and if the court had the necessary authority to issue a letter of request for such evidence. The applicant was required to demonstrate the appropriate authorities in Japan and the correct procedures for obtaining evidence by video link. Additionally, the court had to consider the potential prejudice that might arise from the use of video link evidence and whether the letter of request was the appropriate method for seeking such evidence.

The court found that there was insufficient evidence to support the application, and the applicant had not properly laid the foundation for an order for a letter of request. The court agreed with the submissions that the applicant should produce evidence of the appropriate authorities in Japan and the correct procedure before making an order for a letter of request. The court also acknowledged that the letter of request may not be the correct procedure for seeking evidence by video link, and it may not be necessary to involve a court or judicial authority in Japan if the video facilities are in places other than a court and the Japanese Government permits Japanese residents to give evidence via video link up.

The court refused the application for a letter of request seeking permission from Japanese authorities for Japanese witnesses to give evidence via video link and for consent of competent judicial authority to take evidence on commission. The applicant was required to provide further information regarding the relevant Japanese laws and procedures governing the taking of evidence by video transmission from Japan to Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I consider there is insufficient evidence in support of this application for a letter of request to issue. This Court should be informed by the party making the application as to any relevant law in Japan which may govern the taking of evidence by video transmission from Japan to the Northern Territory of Australia. The information sheet from the Commonwealth Attorney General’s Office (Annexure KJH2 to the affidavit of Kate Julia Hardy sworn 25 March 2002) states inter alia:“Other methods for the taking of evidenceThe Japanese Ministry of Justice advised in March 1999 that evidence cannot be taken on commission in Japan by an Australian, in any circumstances. Evidence can only be taken by a Japanese court acting on a letter of request from the Australian court that has been transmitted through diplomatic channels. Also, evidence cannot be taken by video link.”If this information is correct then evidence cannot be taken by video link. If there have been any changes since March 1999 or it does not apply in civil cases where the witnesses are willing to give evidence by video transmission then this Court should be properly informed as to the law in Japan and the appropriate procedure. Such information should be obtained from persons properly qualified to inform this Court as to the law in Japan and the correct procedure, if in fact there are provisions that enable witnesses in Japan to give evidence by way of video link up to the Northern Territory Supreme Court. I agree with the submissions made by Mr Reeves QC on behalf of the defendant that this application is premature and has not properly laid the foundation to support an order for the issue of a letter of request. I note that Form 41D in the Supreme Court Rules does not address the issue of taking evidence on video. I agree with the submission made by Mr Reeves QC, that the applicant should produce evidence as to what the appropriate authorities in Japan advise can be done, before this Court makes an order for a letter of request to “an appropriate judicial authority”. It may ultimately be appropriate to issue a letter of request to “an appropriate judicial authority”. However, with respect to giving of evidence by video link up it may not be necessary to involve a Court or judicial authority in Japan if the video facilities are in places other than a court and the Japanese Government permit Japanese residents to give evidence via video link up wherever that facility may be located. I agree with Mr Reeves’ submission that it is for the applicant to inform this Court as to the law that gives this Court the power to make orders which would enable witnesses to give evidence by video link up from Japan, rather than the source of that power be ascertained through the “letter of request” system. Subject to arguments on the question of prejudice, the letter of request can be used to enable evidence to be taken on commission in Japan. It is not at all clear that a “letter of request” is the correct procedure with respect to seeking that such evidence be given by way of video link.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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