Erceg v Erceg - [2014] NZHC 2601

ORDER THAT FILE NOT BE SEARCHED WITHOUT LEAVE OF A JUDGE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-006213 [2014] NZHC 2601

UNDER Part 18 of the High Court Rules

IN THE MATTER

of the Estate of the late Michael Anthony
Erceg

AND

IN THE MATTER

of the Erceg Family Trust

BETWEEN

MILLIE MARTHA ERCEG Plaintiff

AND

LYNETTE THERESE ERCEG and DARRYL EDWARD GREGORY First Defendants

LYNETTE THERESE ERCEG Second Defendant

Hearing: 10 October 2014

Appearances:

G Illingworth QC and D G Collecutt for Plaintiff
A R Galbraith QC and J Anderson for Defendants

Judgment:

22 October 2014

JUDGMENT OF VENNING J Re: Mode of Evidence

This judgment was delivered by me on 22 October 2014 at 4.45 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Simpson Dowsett Mackie, Auckland
Wilson Harle, Auckland
Hucker & Associates, Auckland

Copy to: G Illingworth QC, Auckland
A R Galbraith QC, Auckland
D G Collecutt, Auckland
J F Anderson, Auckland

ERCEG v ERCEG & Anor [2014] NZHC 2601 [22 October 2014]

[1] The plaintiff applies for an order that the evidence of Ivan Erceg be given by way of video link. The application is opposed by the defendants.

Background

[2] The background to these proceedings has been set out in earlier interlocutory applications. It is unnecessary to repeat it for the purposes of this application. There is a substantive fixture scheduled for hearing (two weeks) commencing on 9
February 2015.

[3] The plaintiff applies for an order that the evidence of Ivan Erceg be given by way of video link. The application is advanced on the basis that Ivan Erceg is an important witness in the proceeding, he is permanently resident outside New Zealand, is unwilling to travel to New Zealand for trial “under present circumstances” and that the plaintiff will suffer extreme prejudice if she is unable to adduce the evidence of Ivan Erceg.

[4] The application proposed that Ivan Erceg give evidence by video link from

Italy. He regards Italy as his primary place of residence.

[5] The defendants oppose the application. They accept Ivan Erceg is an important witness but submit that supports the need for his evidence to be given in person in New Zealand. His veracity and credibility as a witness will be a primary evidential issue.

[6] The defendants argue the reasons advanced by the plaintiff for Ivan Erceg’s reluctance to return to New Zealand are not compelling and do not outweigh the importance of his presence. They consider that Ivan Erceg is effectively driving the proceeding and will be the person who most benefits from any success by the plaintiff in this proceeding.

[7] The defendants also raised a number of procedural issues relating to the application, namely:

(a) that it was made in the abstract;

(b) that there was no suggested protocol;

(c) there were practical issues as to the effect of the time difference between Italy where it was suggested the evidence would be given, and…

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.

Continue reading Erceg v Erceg

Details

AGLC: Erceg v Erceg [2014] NZHC 2601
Case: [2014] NZHC 2601
Decision Date: 22 October 2014

CaseChat Overview and Summary

The case before the Auckland Registry of the High Court is between Millie Martha Erceg, the plaintiff, and Lynette Therese Erceg and Darryl Edward Gregory, the first defendants, with Lynette Therese Erceg also appearing as the second defendant. The primary dispute revolves around the estate of the late Michael Anthony Erceg and the Erceg Family Trust. The plaintiff seeks to admit the evidence of Ivan Erceg, a key witness, via video link from either San Francisco or Los Angeles, USA, due to his unwillingness to return to New Zealand under the present circumstances, primarily because of an outstanding arrest warrant issued by the Inland Revenue Department. The defendants oppose this application, arguing that the witness's presence in court is crucial for the fairness of the proceedings.

The legal issues before the court include whether the court has the authority to permit a witness to give evidence via video link under the Evidence Act 2006 and High Court Rules, and whether there are sufficient grounds to permit such an arrangement in this case. The court must balance the statutory preference for oral evidence given in person against the circumstances that justify an alternative method. The court also considers the necessity to ensure the fairness of the proceedings and the views of the witness.

In deciding the application, the court acknowledged the principle that the adversarial system of justice relies on the assessment of witnesses' evidence on crucial matters of fact, tested by cross-examination in the courtroom. However, the court recognised that modern technology allows for the accommodation of situations where a witness cannot be present in person. The court found that there was a real risk that Ivan Erceg would be arrested if he returned to New Zealand, and granted the application on the condition that the evidence be given by video link from either San Francisco or Los Angeles, following a specific protocol that ensures the fairness and integrity of the proceedings. The court also ordered that all costs associated with the video link are to be borne by the plaintiff.

The court's decision highlights the balance between the traditional principles of the adversarial system and the practical considerations posed by modern technology and international travel. The court granted the application on the basis that the risk of arrest posed a significant barrier to the witness's attendance, and the refusal to allow video link evidence would unfairly disadvantage the plaintiff in pursuing her claim.

Orders