Certain Underwriters at Lloyd's London v Boles

[2015] NZHC 1361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001027 [2015] NZHC 1361

BETWEEN

CERTAIN UNDERWRITERS AT

LLOYD'S LONDON AND WÜRTTEMBERHGISCHE VERSICHBERUNG A.G. Applicant

AND

FREDERIC BOLES Respondent

Hearing:	(On the papers)
Counsel:	James Nolen for the Applicant
Judgment:	16 June 2015

JUDGMENT OF MOORE J

This judgment was delivered by me on 16 June 2015 at 2:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

CERTAIN UNDERWRITERS AT LLOYD'S LONDON AND WÜRTTEMBERHGISCHE VERSICHBERUNG A.G. v BOLES [2015] NZHC 1361 [16 June 2015]

[1]      The applicant has applied pursuant to s 184 of the Evidence Act 2006 (“the Act”)  for  an  examination  order  to  allow  the  evidence  of  Mr  Frederic  Boles,  a New Zealand resident, to be taken for the purposes of an overseas proceeding.

[2]      Before making an order under s 184 of the Act, I must be satisfied that:

(a)      the application is made to implement a request issued by or on behalf of a requesting Court; and

(b)      any requirements prescribed in the rules or regulations made under s

200 as to the form of the application and the manner in which it is made are satisfied; and

(c)      the evidence to which the application relates is to be obtained for the purposes of civil proceedings which have either been instituted before the requesting Court or whose institution before that Court is contemplated.

[3]      In a Minute of 15 May 2015, I recorded that I was satisfied as to the matters required  by ss  184(a)  and  (c).    However,  given  that  no  rules  have  been  made pursuant to s 200 of the Act, it was unclear whether s 184(b) had been or could be satisfied.  For that reason, I requested further submissions on this point.1

[4]      Those submissions have now been received.  In them, Mr Nolen has helpfully set out the relationship between Hague Convention2  and s 184 of the Act.   He submits that for the purposes of s 184(b) of the Act, it will be sufficient for there to have been substantial compliance with the requirements of the Hague Convention in

order for the application to be granted.

1      Certain Underwriters at Lloyd’s London and Wurttemberhgische Verischberung AG v Boles HC Auckland CIV-2015-404-1027, 15 May 2015.

2      Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (signed 18 March

1970, entered into force 7 October 1972).

[5]      The Hague Convention sets out a requirement for evidence which is to be used in judicial proceedings to be requested by means of a formal Letter of Request. That letter is to specify:3

(a)       the authority requesting its execution and the authority requested to execute it;

(b)the names of addresses of the parties to the proceedings and their representatives;

(c)       the nature of the proceedings to which the evidence relates; and

(d)      the evidence to be obtained or other judicial act to be performed. [6]  As appropriate, such letters must also specify:4

(a)       the name and addresses of persons to be examined;

(b)the questions to be put the persons to be examined or a statement of the subject matter about which they are to be examined;

(c)       the documents or other property to be inspected; and

(d)any requirement that the evidence be given on that or affirmation and any special form to be used.

[7]      The request must also be in English.5

[8]      The Letter of Request in the present case specifies that the request is made by the Superior Court of Washington for King County and refers to the High Court of New Zealand as the likely requested authority.  It gives the names of the parties, but not their addresses, although this material is contained in other documents which

have been provided to the Court together with the letter.  It also sets out the nature of

3      Article 3.

4      Article 3.

5      Article 4.

the  proceedings,  the  evidence  requested  and  the  relevant  topics  as  well  as  the relevant details for Mr Boles and a request that the evidence be taken under oath.

[9]      The   only   question   then   is   whether   substantial   compliance   with   the Convention is sufficient for the purposes of the Act and, in particular, whether it is sufficient for the required information to be contained in multiple documents.

[10]     In the absence of any regulations or rules under s 200, I am satisfied that substantial compliance with the Convention will be sufficient.  In the present case, all of the information required by the Convention is before the Court.  The fact that this information is contained in several documents has no prejudicial effect and, as a result, I am satisfied that the request should be granted.

[11]     I therefore order that:

(a)       leave is granted to bring this proceeding by originating application;

(b)the respondent is to appear before the High Court at Auckland on a day to be fixed by the Registrar and notified to the respondent at least

10 working days beforehand;

(c)      a transcript of the respondent’s evidence is to be made which, along with   any   documents   produced   by   the   respondent,   is   to   be authenticated under the seal of the High Court;

(d)the transcript and other documents are to be transmitted along with a copy of this order to the Superior Court of Washington in a sealed envelope addressed to King Country Superior Court, Clerk for the Honourable Kenneth Schubert, King County Courthouse, 516 Third Avenue, Seattle, Washington 98104, United States of America; and

(e)      the applicant is to meet all costs incurred in the attendance of the respondent as a witness and all costs of the Registrar in preparing and sending the sealed copies to the United States.

[12]     I also direct that this order and any further orders made pursuant to this application  be  served  on  the  applicant,  the  respondent  and  Safeco  Insurance

Company of Illinois.

Moore J

Solicitors:
Lowndes, Auckland