Saito Offshore Pty Limited v Wing Hung Printing Company Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-4621 [2013] NZHC 1183

BETWEEN SAITO OFFSHORE PTY LIMITED Plaintiff

ANDWING HUNG PRINTING COMPANY LIMITED
First Defendant

ANDADAPT IDENTIFICATION, LLC Second Defendant

ANDSHORE TO SHORE BV Third Defendant

Hearing: 21 May 2013

Counsel: S J Mills QC and R J Hollyman for Plaintiff
J Hodder QC and L Fraser for Defendants

Judgment: 21 May 2013

Reasons: 22 May 2013

REASONS FOR JUDGMENT OF KATZ J

Solicitors:
Davenports West, Henderson, Auckland
Chapman Tripp, Auckland

Counsel:
S J Mills QC, Auckland
R J Hollyman, Auckland

SAITO OFFSHORE PTY LIMITED V WING HUNG PRINTING COMPANY LIMITED HC AK CIV-2008-
404-4621 [21 May 2013]

Introduction

[1] These proceedings have been set down for a nine day hearing commencing next Monday, 27 May 2013.

[2] Saito Offshore Pty Limited (“Saito”) was formed to offer “source marked” labels and tags for use by its customers based in New Zealand, Australia and the Pacific Islands. Saito alleges that the defendants engaged in a deliberate and ultimately successful plan to acquire the New Zealand and Australian based customers of Saito. Saito says that in doing this the defendants breached both contractual and other legal obligations owed to it. Saito’s case is that John Lau, who will be giving evidence for the defendants at trial, was instrumental in this plan. Mr Lau was a director of Saito, as was another of the defendants’ witnesses, Howard Kurdin.

[3] The defendants sought orders in relation to the evidence at trial of both Mr Lau and Mr Kurdin. In particular an order was sought that Mr Kurdin be permitted to give evidence by video link from Ohio, United States. In addition, a direction was sought that Mr Lau’s evidence be timetabled to be heard (in person) on
31 May 2013. The orders sought by the defendants were opposed by Saito.

[4] In addition, Saito made an oral application at the hearing for an order permitting one of its expert witnesses, Michael Moreau, to give evidence by video link from Chiang Mai, Thailand. That application was not opposed by the defendants.

[5] At the conclusion of the hearing I made orders directing that the evidence of both Mr Kurdin and Mr Moreau were to be given via video link, on the terms set out at [40] below. I also directed that Mr Lau’s evidence be heard on 31 May 2013. The reasons for those orders are set out below.

Application regarding Mr Kurdin’s evidence

Evidence by video link – legal principles

[6] Rule 9.51 of the High Court Rules provides that the ordinary way of giving evidence will be orally at the trial, unless a Court directs otherwise. The commentary on r 9.51 notes that “[n]owadays remote video link is the most common alternative means of giving evidence in civil cases”.1

[7] Sections 103 and 105 of the Evidence Act 2006 provide the jurisdictional basis for the Court to order the giving of evidence via alternative means, including by video link. Section 103 enables…

CaseChat Overview and Summary

Saito Offshore Pty Limited commenced proceedings against Wing Hung Printing Company Limited, alleging breaches of contractual and other legal obligations. Saito claims that the defendants engaged in a plan to acquire Saito's customers based in New Zealand and Australia, with John Lau, a former director of Saito, playing a pivotal role. The defendants sought orders to allow Howard Kurdin to give evidence via video link from Ohio, USA, and to schedule Lau's evidence on a specific date. Saito opposed these applications and also sought to allow its expert witness, Michael Moreau, to testify via video link from Chiang Mai, Thailand. The court had to decide whether the defendants could give evidence via video link and whether the applications for scheduling and expert evidence were justified.

The court found that the defendants could give evidence via video link. The legal principles allow for alternative means of giving evidence, including video links, to promote the just determination of proceedings. The court balanced the inconvenience to the defendants against the need for a fair trial, considering the expense, stress, and inconvenience to the witnesses, the potential impact on the court's ability to assess credibility, and any unfairness arising from the timing of cross-examination. The court concluded that the defendants should not incur the expense and inconvenience of bringing Kurdin to New Zealand for the trial. The court also allowed Lau to give evidence on a specific date, despite concerns from Saito about the length of cross-examination, to avoid unnecessary business disruption for Lau. The court granted Saito's application for Moreau to give evidence via video link as it was unopposed. The court made orders for Kurdin and Moreau to give evidence via video link, Lau's evidence to be heard on a specific date, and Lau's witness statement to be taken as read.

The court's orders were that Howard Joseph Kurdin would give evidence via video link from Ohio, USA, on 4 June 2013, and Michael Moreau would give evidence via video link from Chiang Mai, Thailand. Lau's evidence would be heard on 31 May 2013, and his witness statement would be taken as read. Costs of the application were reserved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established