HIGH COURT OF SOLOMON ISLANDS
Civil Case No. 164 of 1994
REEF PACIFIC TRADING LIMITED (The Company)
and JOANN MARIE MEINERS
v
pan lang="EN-GB" style="font-size: 12.0pt; font-family: Times New Roman">
PRICE WACE WATERHOUSE (The Firm),
RICHARD ANTHONY BARBER (Partner) and
WILLIAM DOUGLAS McLUSKEY (Partner)
lass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
High Court of Solomon Islands
(Muria CJ)
Civil Case No. 164 of 1994
lass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
Hea 7 April 1998
Judgment: 14 May 1998
>
Mrs. J. Meiners of the plaintiffs
Ms. E. M. O'Reilly for thor the defendants
JUDGMENT
MURIA CJ:
On 14 May 1998, I announced the Court�s decision on this application. I
said I would publish the details of the
Court�s reasons for doing so.
The followings are those reasons.
Ms. O�Reilly made pplication, relying on the the provision of Order 39,
Rule 10 of the High Court (Civil Procedure) Rules, 1964. That
Rule provides:
�The Court may in is cause or mattematter where it shall appear
necessary for the purposes of justice, make any order for examination
upon oath before the Court or an officer of the Court or any other
person, and at any place, of any witness or person
and may empower any
parties to any such cause or matter to give such deposition in evidence
therein on such terms,
if any as the Court may direct.�
ass="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
I feel it would be necessary to briefly set out the circumstances of
this case before proceeding further to deal
with the issues raised in
the application The plaintiffs, by their writ of summons, claim against
the defendants,
among other things, damages for breach of duty,
deprivation, negligence, wrongful possession, fraud and breach of
statutory duty arising out of the appointment of the second and third
defendants as Official Receivers and Special
Managers and later, as
liquidators of the plaintiff company. It was alleged that the second and
third defendants
procured their appointment by the High Court as
Official Receivers and Special Managers and, later as liquidators,
through fraud. Allegations have also been raised that the defendants�
appointment were void for irregularity being
in breach of the provisions
of the companies Act. By their Counter-Claim, the defendants claimed an
indemnity
allegedly entered into with the plaintiffs pursuant to their
appointment as liquidators.
Having realised that this Ccannot sit in Australia, Coa, Counsel for the
defendants now seeks an order to have
the trial judge sit as an examiner
instead in Brisbane, Australia for the purpose of taking the evidence of
the
Australian witnesses in this action. In support of the application,
Counsel relied on the affidavits of Peter Andrew Smith,
Richard Anthony
Barber and William Douglas McCluskey. The argument as contained in the
affidavits of the second
and third defendants is basically that they are
concerned and fearful for their liberty, and that of their former and
present staff, being at risk if they or any of them were to travel to
Solomon Islands to give evidence at the
trial of this action. The basis
for that contention are deposed to in Mr. Smith�s affidavit affirmed on
the 9
December 1997 and filed on the 15 December 1997 where it is stated
at paragraph 23 that in view of the history of the litigation
arising
out of the receivership of the plaintiff company, together with some
threat of possible investigation
by the Director of Public Prosecutions
of breaches of the Companies Act, the second and third defendants were
not prepared to come to Solomon Islands to give evidence at the trial of
this action. In paragraph 24 of his affidavit, Mr. Smith stated that
James Barley, Graeme Price and Jane Capelli were
not prepared to come to
Solomon Islands to give evidence at the trial of this action but that
they were prepared
to give evidence in Australia. Mrs. Capelli was said
to be due to have her baby in April 1998 and so not be able to travel
before then. Mr. Smith further deposed that he was unable to obtain
instruction as to whether the other witnesses
were willing to travel to
Solomon Islands to give evidence at the trial of this action. There are
witnesses also
in Australia whom Mr. Smith said would be available to be
called by the plaintiffs if their evidence were to be taken in
Australia.
The principles to be applied ins such as this are well setl settled.
First of all, Order 39, rule 10 (above) as
pointed out earlier, is not
limited to the taking of evidence in this country but it also applies to
where parties
seek to have evidence of witnesses taken outside Solomon
Islands. Principally, the Court exercises its power under the
rule
for the purposes of justice and done so entirely as a matter of
discretion of the Court. Secondly, the cases in this area of the law
have
also pointed out that where application is made under the rule, the
Court must consider the interest, not only of the party
applying but of
all the parties in the case. Thus, Baggallay L.J., said in Berdan-v-
Greenwood
(1882) 20 ChD 764n at 765:
�for urposes of justice does nots not mean in the interest of either
party to the litigation but in the interest
of all the parties to the
litigation.�
<
That was a case of a plaintiff seeking a commission to n to take his evidence
abroad on the ground that he was ill
and his life would be in danger if
he were to travel across the English Channel. He was not able to
substantiate
that round and the Court refused to grant him the
commission. However, I feel it is worth noting what Baggallay L.J., also
said in that case (p.765):
�But we must regard the interest of justice, the interesterest of the
defendants as well as that of the Plaintiff,
and of course we must
consider the nature of the issues which are raised in the pleadings.�
and the learned Law Lord to point out that:
The basic rules relating to the granting of an order for evidence to be
taken abroad had also been expressed in
Ross v- Woodford [1893] UKLawRpCh 143; [1894] 1
Ch 38 where it was stated that before allowing evidence to be taken
abroad the Court must be satisfied that the application is
made in good
faith and not made for the purposes of delay and embarrassment In other
words, the Court must consider
whether the application is an honest one.
The Court also pointed out that in exercising the discretion of the
Court to grant or refuse an order to take evidence abroad, the Court
will not regard the case of a defendant with the
same strictness as the
case of the plaintiff who has chosen his own forum. In the present case
the defendants
are the ones seeking an order to have their evidence and
those of their witnesses taken abroad. It will be noted that not
only
that the defendants are defending the claims brought against them but
that they are also bringing counter-claims
against the plaintiffs
relying on the pleadings as contained in their Defence. In such a case
they are, in my
view, in exactly the same position as the plaintiffs
are, in terms of the principles stated in Ross -v- Woodford.
hen we have the case of New -v- Burns [1894] QBD
104 where the Court held that where a person resident abroad is sued in
England, he has a prima facie right to a commission to take his
evidence in the country where he lives. To that general principle there
must
also be exception, particularly when the Court has to have regard
for justice, the interest of both the defendants and
the plaintiffs and
the nature of the issues disclosed in the pleadings. It is in this
regard that I, with respect,
prefer the reasoning of the High Court of
Australia in Willis -v- Trequair [1906] HCA 32; (1906) 3 CLR 912. That was a
case seeking to have one of the defendants� evidence taken in South
Africa. The main ground relied
on by the defendants/appellants was that
the defendant concerned was a material witness and they were not able to
secure his attendance in the Court in Australia. In the course of its
judgment the High Court considered and agreed
with the law as laid down
in Williams -v-Mutual Life Association of Australasia [1904] NSWStRp 117; (1904) 4
S.R. (N.S.W.) 677 where the Chief Justice said:
�I am however, prepared todown this principle, that ahat as soon as a
plaintiff or defendant shows to the satisfaction
of the Court that a
witness is out of the jurisdiction of the Court, and that his evidence
is material, and that
the Court has no power to enforce his attendance,
the Court or Judge is bound to exercise its discretion, unless the other
side can establish to the satisfaction of the Court that the witness can
and will attend.�
In the same case Mr. Justice G. B. Simpson whose comments the High Court
also referred to, said:
�I agree as to what the Chie Chief Justice has said as to the state of the
law. If a witness is a material witness,
and is out of the jurisdiction
of the Court, and his evidence cannot be obtained by the issue of any
process
out of the Court, then a commission ought to issue.�
To that statement of the law, the High Court agreed, with a slight
modification added to it. In the course of
delivering the judgment of
the Court, Griffith C.J. said:
�We agree with that stat of the law with this modifmodification that the
party asking for the commission should
establish to the satisfaction of
the court that he cannot procure the attendance of the witness. That is
the
general rule, to which, however, there may possibly be exceptions.�
<
The other case to which reference was also made by the the High Court was
the case of Lawson -v-Vacuum Brake Co. [1884] UKLawRpCh 164; 27 Ch. D. 137. The witness
in that case was a person whose evidence was said to be material in an
allegation of conspiracy which
he was said to have entered against the
plaintiff and had since left the country. It was argued that his
evidence
could not be procured in England. After giving his reasons as
to why such a witness should be examined in Court, Cotton L.J.
said:
�If, however, it could be shown that he c he could not be induced to come
here, or that the plaintiff could not
reasonably be expected to bring
him here. I think it would be right to give leave to examine him abroad,
and
it would be for the Court or the jury at the trial to determine how
far the weight of his evidence was affected by their
not having seen or
heard him. But I think in a case of this sort, where it is
important that the witness should be examined in Court, a heavy burden
lies on the party who wishes to examine him abroad, to show clearly that
he cannot be reasonably expected to come here.�
Another Judge in that case, Lindley L.J., said that he could not
grant the commission to take evidence abroad for the purposes of
justice in view of the pleadings in the case.
see the Courts, in the various cases discussed, not only cnly considered
the material importance of the evidence
of the witness and that of his
residence abroad as factors to be taken into account in the exercise of
their
discretion to grant or refuse orders to take evidence abroad but
that they also consider factors such as the nature of
the case giving
rise to the need to have the witness subject to the test of strict
cross-examination in Court
and the ability of the party seeking the
order to procure the attendance of the witness to give evidence at the
trial. There is also the need to ascertain whether there is a question
to be tried: In reBoyse; Crofton v Crofton (1881-1882) 20 Ch
D.760. In this connection I need only refer to another case, Coch -v-
Allcock & Co. [1888] UKLawRpKQB 86; 21 QBD, 1 which was also referred to by the High Court
of Australia in the Willis-v-Trequair Case. In the former,
after considering the circumstances of the case, the Court intimated
that for the order to
be made for evidence to be taken abroad, the Court
has to be satisfied that there is good reason why the witness cannot
be
examined in the jurisdiction of the trial Court. In the course of his
Judgment, Field J. after referring to
Lawson -v-Vaccum Brake Co.,
said:
class="Mss="MsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
�It is almost a matter of course in ordinaryinary cases that if a party
swears that the evidence of the witnesses
whom he seeks to examine is
material a commission will be granted. There is this important
exception, that if
the party himself wants be examined and the
circumstances are such as to make it apparent that it is important that
the evidence proposed to be given should be subject to the test of
strict cross-examination, and for that purpose
his presence in Court
necessary, that, in the discretion of the Judge, may be a ground for
refusing an order
for a commission.�
Wills J. also, after referring to Lawson -v- Vav- Vacuum Brake Co.,
had this to say:
�The decision proceeded upod upon the ground that the witness whom it
was sought to examine had been a party to the transactions which the
plaintiff
was seeking to impeach on the ground of fraud� If ever there
could be a case for refusing to examine a witness upon commission,
it
would be that one in which such a person was the principal witness, and
in such a case, therefore, if the
plaintiff desired to have him examined
on commission, it lay upon him to make out that it was impossible to
bring
him to this country.�
As it can be seen, the High Court explained the previous cases and found
that there was no conflict between those
cases and the rule it stated in
Willis -v- Trequair. With respect, I agree. In my humble view,
Willis -v- Trequair has shed a more practical consideration
of the notion of justice under the rule and expressed in the words,
for the purposes of justice. Further in my humble view also,
Willis -v- Trequair envisioned the practical possibility of
procuring the attendance of witnesses in view of today�s modes of
travelling
and the means of the applicants to secure that attendance.
class="Mss="MsoNormal" style="margin-top: 1; margin-bottom: 1">
In the present case, there is no te that the persons named amed are
material witnesses and that they reside abroad.
Among those witnesses
are the two defendants against whom allegations of fraud and breaches of
the Companies Act are brought The other witnesses are equally important
to rebut those allegations. The defendants counter-claim by way of
an
indemnity which no doubt depends very much on the allegation of fraud
brought against them. As to the possibility
of bringing the witnesses,
particularly, the defendants themselves, no evidence had been adduced to
show that
it is impossible to secure the attendance of the defendants or
that of their witnesses to give evidence at the trial. The
only evidence
produced is that of the defendants� unwillingness to travel to Solomon
Islands to give evidence
at the trial of this action because of fear of
criminal investigation and in view of the past history of the litigation
in this matter involving the plaintiffs and the defendants. It lay upon
the defendants to make out that it is
impossible to bring themselves and
their witnesses to this country. The reasons given by the
defendants/applicants
in this case for not wanting to come to Solomon
Islands to give evidence are, in my view, not sufficient to satisfy this
Court that it is impossible to bring them and their witnesses to this
country. This is a case where the presence
of the defendants and their
witnesses is necessary. As such, in my judgement, this is a case in
which an order
for evidence to be taken abroad ought to be refused. I
bear in mind that this Court cannot enforce the attendance of the
defendants and his witnesses as they are out of the Jurisdiction of this
Court but on the authorities, this is
a case in which the Court can
properly exercise its discretion to refuse the order sought.
If I am wrong on that, and for the sakergument, Order 39, rule 10,e 10,
does not empower this Court or the trial
judge to go and sit outside the
jurisdiction of the Court, either as a Court or as an examiner. The
practice
envisaged under the rule is for this Court to make an order
empowering an examination of witnesses to be done outside its
Jurisdiction by any other person. Where such order is made, a request to
that effect is issued under rule 11
of Order 39 and forwarded to the
relevant authorities in the Jurisdiction where the witnesses reside. The
examination
of the witnesses thereafter follows as provided for under
the rules. All the authorities relied on by the defendants applicants
support that practice. None of those authorities support the case prayed
for the defendants/applicants to have
the trial judge in this action in
the High Court of Solomon Islands to go and sit as an examiner abroad
and then
return to this country and continue hearing the action as trial
judge. As the trial judge in this action, I am not prepared
to assume
the role of an examiner sitting abroad outside my jurisdiction. The
application by the defendants/applicants
in this case is based on the
misconception of the rule relied upon.
For all the reasons stated the order sought by the defendants/applicants
cannot be granted and must be refused.
(Sir John Muria)
Chief Justice
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1998/27.html
