Gathering Evidence in Aid of Foreign Litigation Guide |
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New Zealand |
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(Asia Pacific)
Firm
Simpson Grierson
Contributors
Ben Upton |
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| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes, but only in certain circumstances and particular requirements need to be satisfied (see |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | New Zealand is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), but the local, statutory, rules (contained in the Evidence Act 2006 ("Evidence Act")) are broadly consistent with the provisions of that convention. Civil proceedings The Evidence Act contains provisions relating to evidence to be used in civil proceedings overseas. Sections 184 to 187 record the relevant procedure. Section 184 sets out when the New Zealand courts will have jurisdiction and the requirements for an application. Section 185 contains the discretion or power to order that evidence be taken in New Zealand. Section 186 addresses the privilege of witnesses (the evidence they cannot be compelled to give). Note, however, that such orders cannot bind the Crown (i.e. the Government/Executive). Criminal proceedings The Evidence Act contains provisions in relation to evidence to be used in criminal proceedings overseas. Sections 190 to 198 record the relevant procedure. Section 192 and 194 set out when the New Zealand courts will have jurisdiction and the requirements for an application. There is also provision for foreign country requests in the Mutual Assistance in Criminal Matters Act 1992 ("Mutual Assistance Act"). Under that regime, a foreign country may request the Attorney General (the Government’s chief law officer) to assist in arranging the taking of certain evidence in New Zealand. Australian proceedings There are special provisions that apply in the case of Australian proceedings, in both the civil and criminal courts. This is because New Zealand and Australia are closemgeographically, and have entered into accords that allow both courts in each country to operate more closely. The answers below do not address those provisions which are quite specialised. Reference should be had to Sections 150 to 181 Evidence Act. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Civil proceedings A court in New Zealand has the power to order the taking of evidence or the doing of specific things (in order to collect evidence) if it is satisfied that:
Criminal proceedings The High Court of New Zealand has the power to order the taking of evidence or the doing of specific things (in order to collect evidence) in the same manner as does a civil court, and the same rules outlined above apply (see above). The rules, however, provide for requests to be made through processes other than through the Letter of Request process. That is, requests can be made through another document issued by the foreign court, the presentation of a certificate of a foreign representative, or, indeed, any other process that the High Court may accept. In that respect, the criminal request process is slightly more flexible than that of the civil courts. (see Section 192 Evidence Act). |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | Civil proceedings Section 185 Evidence Act sets out that provided a proper application under Section 184 is made (see above), a court may order the taking of evidence in New Zealand as is considered appropriate to give effect to the request to which an application relates. This can include an order requiring a specified person to do any specified thing that the court considers appropriate for that purpose. Such an order can include, without limitation, provision for:
The section makes clear that a New Zealand court will not make an order that requires something to be done that a New Zealand court would not otherwise order in the course of a civil proceeding in New Zealand. Note also that the section makes clear that a New Zealand court will not make orders to assist in discovery for overseas courts. That rule also applies to oral testimony, where the courts have made clear that a request should not be acceded to if the intention is to obtain information, rather than evidence for use at trial. Criminal proceedings Similar to civil proceedings, provided a proper application is made, a court may order the taking of evidence in New Zealand. This can include an order requiring a specified person to do any specified thing that the court considers appropriate for that purpose. Such an order can include provisions for:
Section 31(1) Mutual Assistance Act also provides that a foreign country may request the Attorney General to assist in arranging:
These sections also make it clear that the New Zealand High Court will not make an order that requires something to be done that the New Zealand High Court would not otherwise order in the course of a criminal proceeding in New Zealand. |
| Who bears the burden of showing whether any privileges apply? | Civil proceedings A person in New Zealand cannot be compelled to give evidence under a Section 185 order where that person cannot be compelled to give that evidence in a New Zealand civil proceeding or in civil proceedings in the country or territory in which the requesting court exercises jurisdiction. The person who claims to be exempt from giving the evidence bears the burden of establishing this. He/she can do so either by reference to the request itself (which may record that right to claim such an exemption) or by reference to a concession by the applicant that he/she can claim exemption. If the New Zealand court is not satisfied that the claimed exemption applies, then it remains possible for the New Zealand court to collect the evidence and to ask the foreign (requesting) court to determine whether the claimed exemption applies. Only if the requesting court upholds the exemption, will any collected evidence not be transmitted or sent by the New Zealand court. There is a further exemption to the compulsion to give evidence under Section 185 Evidence Act. This is where the evidence to be given would be prejudicial to the security of New Zealand. In such a case, a certificate must be presented by the Attorney General of New Zealand, confirming that this is the case. Such a certificate is conclusive and cannot be challenged. (See Section 186 Evidence Act) Criminal proceedings A person cannot be compelled to give evidence that the person could not be compelled to give in criminal proceedings in New Zealand, or if the giving of that evidence would infringe the jurisdiction of New Zealand or would otherwise be prejudicial to the security or sovereignty of New Zealand. Judicial and international comity requires, however, that any request of a foreign court for evidence be treated with sympathy and respect and be complied with as far as New Zealand law permits. Therefore, if a person claims to be exempt from giving evidence, then that person bears the burden of establishing this. He/she can do so by showing that certain privileges apply. (see Section 195 Evidence Act) |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | Civil proceedings Provided the requirements of Section 184 are met, it does not need to be established that the evidence sought is evidence that would be permitted and/or admissible in the foreign court in which the action is pending. Note, however, that the requirements of Section 184 are such that the foreign (requesting) court must have reason to believe that a person or persons in New Zealand will have information or documents in their control that are required in the overseas proceeding. It follows from this that it would be rare for a foreign court to be requesting evidence that would not be permitted and/or admissible in that court, once received. Criminal proceedings The approach is the same as in civil proceedings (see above). |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | New Zealand civil and criminal processes do not permit the use of depositions (i.e. examination of witnesses as part of a discovery process). New Zealand does allow the examination of witnesses at trial for the purposes of obtaining evidence and it is possible to obtain an order (under Section 185 Evidence Act (civil), Section 192 Evidence Act (criminal)) for the oral examination of a witness. Such examinations can be conducted remotely. Sections 185(7) and 192(4) Evidence Act say that an order made for the examination of witnesses can be enforced in the same manner as if it were an order made by the High Court or judge in proceedings pending in New Zealand. The Courts (Remote Participation) Act 2010 allows for participation in proceedings remotely by Audio Visual Link ("AVL"). This includes the taking of evidence. There are prescribed rules around the use of AVL, which are intended to ensure that the use of AVL is consistent with fairness and in the interests of justice. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | No, except to the extent that there are provisions in the Evidence Act (discussed above) that prevent a foreign court from seeking evidence in New Zealand which would endanger national security. The Evidence Act also prevents a court from granting orders which would permit the gathering of evidence from someone who would otherwise not be compellable before a New Zealand court. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | New Zealand citizens are able to give evidence voluntarily in proceedings in a foreign jurisdiction. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Section 184 Evidence Act makes clear that the New Zealand courts do not have jurisdiction to issue orders in relation to private arbitration proceedings. In Re Intec USA LLC (2006) 18 PRNZ 222, an application was made to the High Court in New Zealand under the Evidence Act with a letter of request from the General Court of Justice of North Carolina seeking assistance in obtaining discovery for arbitration proceedings. The New Zealand court had no difficulty in deciding that arbitration was not a proceeding pending before the foreign court that had issued the request. It dismissed the application. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes, but only in certain circumstances and particular requirements need to be satisfied (see
below).
New Zealand is not a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), but the local, statutory, rules (contained in the Evidence Act 2006 ("Evidence Act")) are broadly consistent with the provisions of that convention.
Civil proceedings
The Evidence Act contains provisions relating to evidence to be used in civil proceedings overseas. Sections 184 to 187 record the relevant procedure. Section 184 sets out when the New Zealand courts will have jurisdiction and the requirements for an application. Section 185 contains the discretion or power to order that evidence be taken in New Zealand. Section 186 addresses the privilege of witnesses (the evidence they cannot be compelled to give). Note, however, that such orders cannot bind the Crown (i.e. the Government/Executive).
Criminal proceedings
The Evidence Act contains provisions in relation to evidence to be used in criminal proceedings overseas. Sections 190 to 198 record the relevant procedure. Section 192 and 194 set out when the New Zealand courts will have jurisdiction and the requirements for an application.
There is also provision for foreign country requests in the Mutual Assistance in Criminal Matters Act 1992 ("Mutual Assistance Act"). Under that regime, a foreign country may request the Attorney General (the Government’s chief law officer) to assist in arranging the taking of certain evidence in New Zealand.
Australian proceedings
There are special provisions that apply in the case of Australian proceedings, in both the civil and criminal courts. This is because New Zealand and Australia are closemgeographically, and have entered into accords that allow both courts in each country to operate more closely. The answers below do not address those provisions which are quite specialised. Reference should be had to Sections 150 to 181 Evidence Act.
Civil proceedings
A court in New Zealand has the power to order the taking of evidence or the doing of specific things (in order to collect evidence) if it is satisfied that:
- there is an application before it that is intended to implement a request that has been made by a foreign (requesting) court. This will usually require the existence of a Letter of Request from a foreign court to the New Zealand court setting out what information or assistance is sought and the basis for the foreign court having reason to believe that a person or persons in New Zealand will have information or documents in their control that are required in the overseas proceeding;
- all prescribed requirements as to form and manner are met (although at this time, there are no such requirements). Note, however, that it remains important that the Letter of Request (discussed above) sets out in a detailed and precise manner what the foreign court is actually requesting, so that the New Zealand court can understand precisely what is being asked of it without the need for clarification or argument in New Zealand; and
- the application relates to the obtaining of evidence for the purpose of a civil proceeding that has been instituted or is contemplated in the overseas court. (see Section 184 Evidence Act).
Criminal proceedings
The High Court of New Zealand has the power to order the taking of evidence or the doing of specific things (in order to collect evidence) in the same manner as does a civil court, and the same rules outlined above apply (see above). The rules, however, provide for requests to be made through processes other than through the Letter of Request process. That is, requests can be made through another document issued by the foreign court, the presentation of a certificate of a foreign representative, or, indeed, any other process that the High Court may accept. In that respect, the criminal request process is slightly more flexible than that of the civil courts. (see Section 192 Evidence Act).
Civil proceedings
Section 185 Evidence Act sets out that provided a proper application under Section 184 is made (see above), a court may order the taking of evidence in New Zealand as is considered appropriate to give effect to the request to which an application relates. This can include an order requiring a specified person to do any specified thing that the court considers appropriate for that purpose. Such an order can include, without limitation, provision for:
- the examination of witnesses, orally or in writing;
- the production of documents;
- the inspection, photographing, preservation, custody or detention of any property;
- the taking of samples of any property and the carrying out of any experiments on or with any property;
- the medical examination of any person; or
- the taking and testing of samples of blood from any person.
The section makes clear that a New Zealand court will not make an order that requires something to be done that a New Zealand court would not otherwise order in the course of a civil proceeding in New Zealand. Note also that the section makes clear that a New Zealand court will not make orders to assist in discovery for overseas courts. That rule also applies to oral testimony, where the courts have made clear that a request should not be acceded to if the intention is to obtain information, rather than evidence for use at trial.
Criminal proceedings
Similar to civil proceedings, provided a proper application is made, a court may order the taking of evidence in New Zealand. This can include an order requiring a specified person to do any specified thing that the court considers appropriate for that purpose. Such an order can include provisions for:
- the examination of witnesses at the request of the overseas court;
- the production of documents; or
- the obtaining of an affidavit or declaration of any person (see Sections 192 to 194 Evidence Act).
Section 31(1) Mutual Assistance Act also provides that a foreign country may request the Attorney General to assist in arranging:
- the taking of evidence in New Zealand;
- the production of documents or other articles in New Zealand; or
- the undertaking of a forensic comparison and the production of a document specifying the result of that comparison.
These sections also make it clear that the New Zealand High Court will not make an order that requires something to be done that the New Zealand High Court would not otherwise order in the course of a criminal proceeding in New Zealand.
Civil proceedings
A person in New Zealand cannot be compelled to give evidence under a Section 185 order where that person cannot be compelled to give that evidence in a New Zealand civil proceeding or in civil proceedings in the country or territory in which the requesting court exercises jurisdiction. The person who claims to be exempt from giving the evidence bears the burden of establishing this. He/she can do so either by reference to the request itself (which may record that right to claim such an exemption) or by reference to a concession by the applicant that he/she can claim exemption.
If the New Zealand court is not satisfied that the claimed exemption applies, then it remains possible for the New Zealand court to collect the evidence and to ask the foreign (requesting) court to determine whether the claimed exemption applies. Only if the requesting court upholds the exemption, will any collected evidence not be transmitted or sent by the New Zealand court.
There is a further exemption to the compulsion to give evidence under Section 185 Evidence Act. This is where the evidence to be given would be prejudicial to the security of New Zealand. In such a case, a certificate must be presented by the Attorney General of New Zealand, confirming that this is the case. Such a certificate is conclusive and cannot be challenged. (See Section 186 Evidence Act)
Criminal proceedings
A person cannot be compelled to give evidence that the person could not be compelled to give in criminal proceedings in New Zealand, or if the giving of that evidence would infringe the jurisdiction of New Zealand or would otherwise be prejudicial to the security or sovereignty of New Zealand. Judicial and international comity requires, however, that any request of a foreign court for evidence be treated with sympathy and respect and be complied with as far as New Zealand law permits. Therefore, if a person claims to be exempt from giving evidence, then that person bears the burden of establishing this. He/she can do so by showing that certain privileges apply. (see Section 195 Evidence Act)
Civil proceedings
Provided the requirements of Section 184 are met, it does not need to be established that the evidence sought is evidence that would be permitted and/or admissible in the foreign court in which the action is pending. Note, however, that the requirements of Section 184 are such that the foreign (requesting) court must have reason to believe that a person or persons in New Zealand will have information or documents in their control that are required in the overseas proceeding. It follows from this that it would be rare for a foreign court to be requesting evidence that would not be permitted and/or admissible in that court, once received.
Criminal proceedings
The approach is the same as in civil proceedings (see above).
New Zealand civil and criminal processes do not permit the use of depositions (i.e. examination of witnesses as part of a discovery process). New Zealand does allow the examination of witnesses at trial for the purposes of obtaining evidence and it is possible to obtain an order (under Section 185 Evidence Act (civil), Section 192 Evidence Act (criminal)) for the oral examination of a witness.
Such examinations can be conducted remotely. Sections 185(7) and 192(4) Evidence Act say that an order made for the examination of witnesses can be enforced in the same manner as if it were an order made by the High Court or judge in proceedings pending in New Zealand.
The Courts (Remote Participation) Act 2010 allows for participation in proceedings remotely by Audio Visual Link ("AVL"). This includes the taking of evidence. There are prescribed rules around the use of AVL, which are intended to ensure that the use of AVL is consistent with fairness and in the interests of justice.
No, except to the extent that there are provisions in the Evidence Act (discussed above) that prevent a foreign court from seeking evidence in New Zealand which would endanger national security. The Evidence Act also prevents a court from granting orders which would permit the gathering of evidence from someone who would otherwise not be compellable before a New Zealand court.
New Zealand citizens are able to give evidence voluntarily in proceedings in a foreign jurisdiction.
Section 184 Evidence Act makes clear that the New Zealand courts do not have jurisdiction to issue orders in relation to private arbitration proceedings. In Re Intec USA LLC (2006) 18 PRNZ 222, an application was made to the High Court in New Zealand under the Evidence Act with a letter of request from the General Court of Justice of North Carolina seeking assistance in obtaining discovery for arbitration proceedings. The New Zealand court had no difficulty in deciding that arbitration was not a proceeding pending before the foreign court that had issued the request. It dismissed the application.