Bonke v Halsbeck

[2024] NZHC 426

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-242

[2024] NZHC 426

IN THE MATTER

of civil proceedings in the Regensburg District Court

AND

IN THE MATTER

of a letter of request for the examination in New Zealand of Elijah Wallwork

BETWEEN

ROLAND BONKE

Plaintiff

AND

AND

EVA HASLBECK

First Defendant

ALLIANZ INSURANCE GROUP

Second Defendant

Counsel:

A Bloomfield and O Kiel for Solicitor-General

Judgment:

(On the papers)

4 March 2024

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 4 March 2024 at 11:15 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

Solicitors:           Crown Law, Wellington Copy to:      E Wallwork

BONKE v HASLBECK [2024] NZHC 426 [4 March 2024]

[1]                 This is an originating application on notice by the Solicitor-General for directions giving effect to a Letter of Request from the Regensburg District Court in Germany.

[2]The Letter of Request asks that:

(a)Elijah Wallwork be summonsed as a witness and questioned regarding certain assertions by the plaintiff in the case of Bonke v Haslbeck and anor as set out in an Evidence Order dated 8 June 2021, having regard to that Order’s attachments; and

(b)after completion of the requested hearing, the witness’s statement be sent to the Regensburg District Court.

[3]                 Mr Wallwork has been contacted by Crown Law office. He has confirmed receipt of the application and supporting documents. He has expressed some reluctance about being involved in this matter, although he has indicated the application will nonetheless proceed. He has indicated an intention to take legal advice about the substantive matters on which he is being asked to give evidence.

[4]                 The application is to be called for the first time in the Duty Judge list on Monday, 4 March 2024 in the High Court at Auckland.

[5]                 By memorandum dated 29 February 2024, Crown counsel advises that the Solicitor-General has nothing further to add and submits that the application can be decided on the papers without the need for any appearance in Court. Therefore, Crown seek that the list call be vacated and the application be determined on the papers, with the Registry to correspond directly with Mr Wallwork about the time and place for receiving his evidence.

[6]                 The procedure taking for evidence for use in civil proceedings overseas is set out in ss 184–186 of the Evidence Act 2006.

[7]                 Having carefully considered the matter, I am of the view that it is appropriate to deal with the application on the papers. The appearance in the Duty Judge list on Monday, 4 March 2024 is accordingly vacated and appearances of counsel excused.

[8]                 I am further satisfied from the material filed by the Solicitor-General that the orders sought by her are appropriate. There will, therefore, be orders as follows:

(a)permission is granted to commence this proceeding as an originating application under r 19.5 of the High Court Rules 2016;

(b)the Registrar of the High Court at Auckland is appointed Examiner for the purpose of the Letter of Request;

(c)Elijah Wallwork (the witness) is to attend before the Examiner on a day and at a time at the Registry of the High Court at Auckland as the Examiner may appoint and as may be notified in writing by the Examiner to the witness;

(d)the Examiner is to have power to adjourn from time to time;

(e)the witness is to submit to being examined orally, on affirmation or on oath, on questions and matters specifically or generally referred in the Letter of Request and Evidence Order;

(f)insofar as no special manner of examination is requested, the examination of the witness shall be conducted according to the practice for the time being followed by a Registrar under order of the Court, subject to the express provisions of ss 184–187 (inclusive) of the Evidence Act 2006;

(g)in particular, the Examiner shall:

(i)administer an oath or affirmation to the witness;

(ii)read to, or have read to, or have the witness read the certified translation in the English language of the Letter of Request along with the Evidence Order, so that all of the certified translations in the English language of the Letter of Request and Evidence Order are read to or by the witness;

(iii)take down in writing the evidence of the witness;

(iv)make five copies of the evidence of the witness;

(v)read to, or have read to, the witness their evidence;

(vi)cause the witness to sign their evidence, including the copies in the Examiner’s presence;

(vii)cause the witness to sign the copy of the Letter of Request and Evidence Order; and

(viii)certify the evidence of the witness and copies so taken and the documents so signed.

(h)the witness shall receive expenses as may be payable to the witness in accordance with s 185(6) of the Evidence Act 2006; and

(i)leave is reserved to the Solicitor-General to make such further application relating to the Letter of Request as she may be advised or for such other directions as the Court considers to be just.

Woolford J