New Zealand’s Evidence Act 2006 contains provisions relating to evidence to be used in civil proceedings overseas.  Sections 184 to 187 contain the relevant procedure.  Section 184 sets out when the New Zealand courts will have jurisdiction and the requirements for an application and s 185 contains the discretion or power to order that evidence be taken in New Zealand.  Section 186 contains the privilege of witnesses (the evidence they cannot be compelled to give) and s 187 ensures orders cannot be binding on the Crown.

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.  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, 3 requirements must be met by an application under s 184:

1. It must be seeking assistance from a requesting court in an overseas jurisdiction;
2. It must meet prescribed requirements as to form and manner; [1] and
3. It must relate to the obtaining of “evidence” for the purpose of a civil proceeding which has been instituted or is contemplated in the overseas court.

Once jurisdiction is established under s 184 by an application that meets the requirements, the next question is whether the New Zealand High Court should exercise the s 185 power to give effect to the overseas court’s request.  Section 185 sets out that the High Court may order the taking of evidence in New Zealand as considered appropriate to give effect to the request to which an application requests.[2] Such an order can include provision for:[3]

• 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.[4]  An 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.[5]

In determining whether or not to exercise the power under s 185, a New Zealand court will leave determining relevance to the requesting overseas court.[6]  It will attempt to balance the legitimate requirements of the foreign court against the burden placed on the intended witness.[7]  The principle of comity will be important, but the court will seek to protect intended witnesses from any oppressive request.[8] 

Requests will only be approved to the extent that they relate to evidence that could be compelled in a civil proceeding in New Zealand.[9]  The procedure cannot be used to facilitate an investigatory inquiry or equivalent to general discovery.[10]

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.

Footnotes:

[1] Section 184 refers to compliance with prescribed requirements for applications set out in rules or regulations made under s 200, however no such rules or regulations have been made.  Instead, substantial compliance with the Hague Convention on Evidence Abroad (to which New Zealand is not a party) is required:  Certain underwriters at Lloyd’s London and Wurttemberhgische Versichberung AG v Boles [2015] NZHC 1361 at [5]-[9].

[2] Section 185(1).

[3] Section 185(2).

[4] Section 185(3) and (4).

[5] Section 185(5).

[6] 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.

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

[8] At [45].

[9] Section 186.

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