Taking Evidence in New Zealand for use in Overseas Proceedings

Generally

New Zealand is not a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Instead, the Evidence Act 2006 provides the statutory basis for the New Zealand courts to obtain evidence for civil proceedings in a foreign court.

The process is commenced by a letter of request from the overseas court to the High Court of New Zealand, for it to obtain evidence for use in the overseas proceeding (formerly called a letter rogatory). The letter of request should set out the information sought and the basis that the overseas court has to believe that the person in New Zealand will have information or documents in their control that are required in the overseas proceeding.

In order for a New Zealand court to have jurisdiction to order that evidence be taken here for use in an overseas proceeding, the application must meet the requirements of the Evidence Act. Those requirements include that the request is from a court in an overseas jurisdiction for the purpose of a civil proceeding that has been instituted or is contemplated in that overseas court. While the Act does not impose formal requirements on the letter of request, case law says that it should be in English and specify:¹

The authority requesting its execution and the authority requested to execute it.
The names and addresses of the parties to the proceeding and their representatives.
The nature of the proceeding to which the evidence relates.
The evidence to be obtained or other judicial act to be performed.

As appropriate, the letter should also specify:

The name and address of the person to be examined.
The question to be put to the persons to be examined or a statement of the subject matter about which they are to be examined.
The documents or other property to be inspected.
Any requirement that the evidence be given or oath or affirmation and any special form to be used.

The High Court can make orders as considered appropriate to give effect to the request, including for:

The examination of witnesses, orally or in writing;
The production of documents;
The inspection, photographing, preservation, custody or detention of any property;
The medical examination of any person; or
The taking and testing of samples of blood from any person.

An order cannot require steps to be taken which could not be required to be taken for obtaining evidence in civil proceedings in the High Court, but evidence can be taken other than on oath if that is what is requested by the overseas court.²An order also cannot require a person to state what documents relevant to the proceeding that they have or to produce documents other than particular documents specified in the order as appearing to the court as likely to be in the person’s custody or control and relevant to the proceedings.³

In determining whether or not to exercise the power, a New Zealand court will leave determining relevance to the requesting overseas court.⁴It will attempt to balance the legitimate requirements of the foreign court against the burden placed on the intended witness.⁵The principle of comity will be important, but the court will seek to protect intended witnesses from any oppressive request.⁶

Requests will only be approved to the extent that they relate to evidence that could be compelled in a civil proceeding in New Zealand.⁷ The procedure cannot be used to facilitate an investigatory inquiry or equivalent to general discovery.⁸

When making an application for evidence to be taken in New Zealand, the important matters to note are:

Requests from foreign courts will be treated with sympathy and respect – questions of relevance will be deferred to the overseas court and judicial and international comity require compliance with such requests as far as New Zealand law permits.
Courts will be wary of requests which amount to general discovery. The request must be in the nature of subpoena duces tecum – requiring production to the court, rather than to the applying party.
Specificity in the request is required – the procedure is for eliciting information for trial, not an investigatory inquiry.
The steps sought to be included in an order must be those that could be taken in obtaining evidence for a civil proceeding in New Zealand.
A person cannot be compelled to be a witness to give evidence that could not be compelled in civil proceedings in New Zealand or in civil proceedings in the territory in which the requesting court has jurisdiction.
Orders cannot be made that will be binding on the Crown or a person in their capacity as officer or servant of the Crown.

Australian proceedings

Under the Trans-Tasman Proceedings Act 2010, people in New Zealand may appear remotely in Australian proceedings.

‍Endnotes

¹ Certain underwriters at Lloyd’s London and WürttemberhgischeVersichberung AG v Boles [2015] NZHC 1361 at [5]-[9].

² Section 185(3) and (4).

³ Section 185(5).

⁴ See Republic of Kazakhstan v Mega [2016] NZHC 1898 at [42]. See also http://www.internationallawoffice.com/Newsletters/Litigation/New-Zealand/Wilson-Harle/Cloud-storage-operator-ordered-to-disclose-user-details-for-use-in-foreign-proceeding.

⁵ Republic of Kazakhstan v Mega [2016]NZHC 1898, at [45].

⁶ At [45].

⁷ Section 186.

⁸ See Republic of Kazakhstan v Mega [2016] NZHC 1898at [47].

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