Ozkan v Ozkan

[2015] NZHC 890

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000146 [2015] NZHC 890

IN THE MATTER OF

Docket No. 2013/732 before Karşıyaka 4,

Family Court, Turkey

IN THE MATTER OF

a letter of request for the examination in
New Zealand of SHANE SUTTON of

2/62 Bowhill Road, New Brighton, Christchurch

BETWEEN

KERRY JAYNE ӦZKAN Plaintiff

AND

VEDAT ӦZKAN Defendant

(Determined on the papers)
Counsel	H Carrad for Solicitor-General
Judgment:	1 May 2015

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

as to taking evidence upon letter of request

Background

[1]      The Solicitor-General has received through the Embassy of the Republic of

Turkey in New Zealand a letter of request in the name of Judge Halil Kayahan of the

4th Family Court of Karşıyaka, Turkey (the Turkish Court).  The Solicitor applies for directions giving effect to the letter of request.

Originating application

[2]      The   Solicitor   seeks   permission   to   commence   this   proceeding   as   an originating application under r 19.5 High Court Rules.

ӦZKAN v ӦZKAN [2015] NZHC 890 [1 May 2015]

[3]      I am satisfied that it is in the interests of justice that such permission be granted.

[4]      I order that the Solicitor is permitted to commence this proceeding as an originating application.

Letters of request – the statutory regime

[5]      The   Evidence  Act   2006,   through   ss   184   to   187,   provides   for   the implementation of requests issued by a foreign Court.

[6]      Section 185(1) of the Act empowers the High Court to order any provision for the taking of evidence in New Zealand which it considers appropriate for giving effect to the request to which the application relates be made.

[7]      Section 184 of the Act prescribes when the powers conferred by s 185(1) of the Act may be exercised:

Evidence for use in civil proceedings overseas

184Application to High Court for assistance in obtaining evidence for civil proceedings in another court

The High Court or a Judge may exercise the powers conferred by section 185(1) if an application is made to the High Court or a Judge for an order for evidence to be obtained in New Zealand and the court or Judge is satisfied—

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

(b)       that  any  requirements  prescribed  in  rules  or  regulations made under section 200 as to the form of the application and the manner in which it must be made are satisfied; and

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

[8]      While  s  184(b)  of  the  Act  requires  the  Court  to  be  satisfied  that  any requirements described in rules or regulations made under section 200 as to the form

of the application and the manner in which it must be made are satisfied, no such rules or regulations have to date been made.

[9]      By s 185(2) an order under s 185(1) may be made in relation to a number of matters including the examination of witnesses, either orally or in writing at any agreed time or at any specified time and place.1

[10]     Section 186 of the Act preserves certain privileges of witnesses.

The request in this case

[11]     The Turkish Court requests the New Zealand judicial authorities to take the evidence of Shane Sutton, a resident of Christchurch, and to provide to the Turkish Court a certified copy of the interrogation of Mr Sutton.  The request is made under the hand  of Judge Kayahan  in Turkish  and  dated 17  March  2014.   A certified translation has been provided with the letter of request.

[12]     The evidence is requested as being relevant to a proceeding brought by the plaintiff against her husband.  The plaintiff seeks an injunction to prevent the sale by the defendant of a flat which has been registered in the name of the defendant and a declaration as to family property.

[13]     Judge Kayahan has set out in the letter of request the claims of the defendant in reply to the plaintiff ’s claim.

[14]     It  appears  from  the  letter  of  request  that  the  Turkish  Court  has  an understanding of the particular evidence Mr Sutton may be able to provide.   The attorney has explained to Judge Kayahan that:

Shane Sutton will testify that:

·    the plaintiff doesn’t demand any right from the flat mentioned in the case;

·    my client [the defendant] paid the money which was sent to his account

1      Evidence Act 2006, s 185(2)(a).

·    the plaintiff purchased a car in New Zealand with this money;

·    they [the plaintiff and the defendant] rented a house there;

·    my client [the defendant] works in New Zealand;

·    the plaintiff resides in New Zealand and has companies there; and

·    the plaintiff comes to Turkey only for holidays.

[15]     I note that the subject matter of Mr Sutton’s evidence, and particularly the first two items, may not be altogether clear in terms of the translation provided.  It will be for the Registrar to elicit as clearly as possible the particular evidence Mr Sutton can provide in relation to each item of subject matter.

The Solicitor’s application

[16]     The Solicitor’s application is supported by an affidavit of Gillian Gillies, an

assistant Crown Counsel employed by the Crown Law Office.

[17]     In addition to producing the letter of request, Ms Gillies deposes that it does not appear that the letter of request  is intended to be carried into effect by an application to the Court made by an agent in New Zealand of a party to the Turkish proceeding.

[18]     Ms  Gillies  deposes  that  Mr  Sutton,  upon  being  contacted  by  her,  has indicated that he is available to give evidence in Christchurch at the convenience of the Court except for the month of June 2015.  He requests at least two days’ notice.

The jurisdiction threshold

[19]     I turn to consider the threshold matters under s 184 of the Act:

·    s 184(a): – it is clear that an application has been made to implement a

·    s 184(b): – subs (b) is inapplicable as no rules or regulations have been made under s 200 of the Act; and

·    s  184(c):  –  the  requested  evidence  is  for  the  purposes  of  “civil proceedings”, as that term is defined by s 182 of the Act to mean any proceeding other than a criminal proceeding.   The letter of request establishes that the plaintiff has commenced proceedings in the Turkish Court.

Order to give effect to the letter of request

[20]     The Solicitor has by his originating application identified the terms of an order which he considers appropriate.   I am satisfied that the order applied for is, with minor amendments, appropriate.

Order

[21]     I order that:

(a)      The Registrar or a Deputy-Registrar of this Court at Christchurch be appointed Examiner for the purpose of the letter of request; and

(b)Shane Sutton (“the witness”) shall  attend before the Examiner  on Tuesday, 19 May 2015 at 10.00 am at the Registry of the High Court at Christchurch to be notified in writing by the Examiner to the witness; and

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

(d)The witness shall submit to being examined orally on affirmation or on oath on questions and matters specifically or generally referred to in the letter of request; and

(e)      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 this Honourable Court, subject to the express provisions of ss 184-187 (inclusive) of the Evidence Act 2006; and

(f)       In particular, the Examiner shall:

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

(ii)read or have read to the witness the certified translation in the English language of the letter of request along with the accompanying papers (‘the papers”) so that all of the certified translation in the English language of the letter of request and of the papers is read by or to the witness;

(iii)take down in writing the evidence of the witness, including confirmation of any further evidence;

(iv)     provide five copies of the deposition;

(v)      read or have read to the witness the deposition;

(vi)     cause the witness to sign the deposition including the copies in

the Examiner’s presence;

(vii)cause the witness to sign the copy of the letter of request and the accompanying papers; and

(viii)certify the deposition and copies so taken and the documents so signed;

(g)The witness shall receive expenses as may be payable to the witness in accordance with s 185(6) of the Evidence Act 2006 to be provided by the Solicitor-General; and

(h)Leave is reserved to the Solicitor-General to make such further application relating to the letter of request as he may be advised to make or for such other directions as the Court considers just.

Associate Judge Osborne

Solicitors:

Crown Law, Wellington