Lewandowski v Siubiak

[2020] NZHC 2861

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV 2020-442-39

[2020] NZHC 2861

IN THE MATTER OF

civil proceedings commenced in District

Court in Gorzów Wielkopolski, the Republic of Poland

AND

IN THE MATTER OF

a letter of request for the examination in New Zealand of ANDRZEJ

LEWANDOWSKI and CHRISTIANE

LEWANDOWSKI of 11c Weka Street, Nelson, New Zealand

BETWEEN

ANDRZEJ LEWANDOWSKI

Plaintiff

AND

ŁUKASZ SIUBIAK

Defendant

Teleconference:	28 October 2020 at 3.15 pm
Counsel:	D Jones and J Watson for Solicitor-General
Judgment:	30 October 2020

JUDGMENT OF MALLON J

[1]    The Solicitor-General makes an originating application seeking orders to effect a Letter of Request dated 18 October 2018 received from the District Court at Gorzów Wielkopolski in the Republic of Poland. The Letter of Request is in Polish and a certified translation accompanies it. The Letter of Request asks for the court to arrange for the evidence of Andrzej Lewandowski and Christiane Lewandowski to be taken under oath. A list of questions they are to be asked accompanies the Letter of Request.

LEWANDOWSKI v SIUBIAK [2020] NZHC 2861 [30 October 2020]

The evidence is to be recorded, read or shown to the witnesses so they may attest to its authenticity, and sent to the District Court in Gorzów Wielkopolski.

[2]    The Letter of Request relates to a civil proceeding in the District Court in Gorzów Wielkopolski. The claim is brought by Andrzej Lewandowski against Łukasz Siubiak for the payment of PLN 235,000. Mr Lewandowski claims that he financed the construction of a building on Mr Siubiak’s land and the purchase of another plot of land by Mr Siubiak. PLN 235,000 is claimed as reimbursement of that expenditure. Mr Siubiak denies the claim. The questions to be asked of Andrzej Lewandowski and Christiane Lewandowski relate to the claim and Mr Siubiak’s response to it.

[3]    The Letter of Request advises that Andrzej Lewandowski and Christiane Lewandowski, who are German citizens, now live in Nelson, New Zealand. They are German citizens.

[4]    The Letter of Request is over two years old. Crown Law advises that it was not received by their office until earlier this year. They have confirmed that the Polish proceeding remains on foot, the Letter of Request remains current, and Andrzej Lewandowski and Christiane Lewandowski are willing to give evidence in accordance with the Letter of Request and wish to give their evidence as soon as possible. They will require a German interpreter to be present when they do so.

[5]    Permission is sought to commence this proceeding as an originating application under r 19.5 of the High Court Rules 2016. This permission is granted. The nature of the application makes it an appropriate one for the originating procedure.

[6]    Sections 184 and 185 of the Evidence Act 2006 allow this Court to give effect to an application for assistance in obtaining evidence for civil proceedings in another court if satisfied the application is made to implement a request issued by or on behalf of  a  requesting  court  (a  court  exercising  jurisdiction  in  a  country  outside   New Zealand), any requirements prescribed in the rules and regulations made under  s 200 are satisfied, and the evidence to which the application relates is to be obtained for the purposes of civil proceedings instituted before the requesting court. I am satisfied that each of these requirements are met. The request is from the District Court

in Gorzów Wielkopolski, presented by the Embassy of the Republic of Poland. To date, no such rules or regulations have been made under s 200. The evidence relates to the civil proceeding before the District Court in Gorzów Wielkopolski.

[7]The following orders are made:

(a)the Registrar of the Court is appointed Examiner for the purpose of the Letter of Request;

(b)Andrzej Lewandowski and Christiane Lewandowski shall attend before the Examiner at the Registry of the High Court at Nelson on a day and at a time as the Examiner may appoint and as may be notified in writing by the Examiner to the witnesses;

(c)the Examiner shall have power to adjourn from time to time;

(d)the witnesses shall submit to being examined orally on oath or affirmation on the questions and matters specifically or generally referred to in the Letter of Request;

(e)Crown Law are to arrange for counsel to be in attendance at the examination to assist in the examination process. This assistance is to include:

(i)advising the witnesses that there are penalties for making a false statement after making an oath or affirmation;

(ii)to read out each of the questions in the Letter of Request for the witness then to respond to;

(iii)otherwise assist as may be required.

(f)the examination of the witnesses is to be conducted according to the practice followed by a Registrar under order of this Court, subject to ss 184-187 of the Evidence Act 2006;

(g)the Examiner shall:

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

(ii)have them read the certified English translation of the Letter of Request and accompanying papers;

(iii)obtain the services of a German-to-English interpreter at the examination;

(iv)arrange for the evidence to be taken, recorded and the English translation transcribed;

(v)make five copies of the transcript;

(vi)read or have read to the witnesses the transcript with the assistance of the German translator;

(vii)obtain the signature of the witnesses on the transcript and the copies in the Examiner’s presence; and

(viii)certify the transcript and the copies.

(h)the witnesses shall receive expenses as may be payable to them under s 185(6) of the Evidence Act 2006; and

(i)leave is reserved to the Solicitor-General to make further applications relating to the Letter of Request as may be advised or for directions from this Court.

[8]    Given the time period that has elapsed since the date of the Letter of Request, the Registry is asked to arrange for the examination to take place as soon as possible.

Mallon J