Peter Graham Faithfull Henderson v Cyril Graham Primmer [1986] ACTSC 86 (16 September 1986)

SUPREME COURT OF THE ACT

PETER GRAHAM FAITHFULL HENDERSON v. CYRIL GRAHAM PRIMMER
S.C. No. 641 of 1984
Courts

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Courts - Practice and Procedure - application for examination of witness about to go overseas - ACT Supreme Court Act 1933 s.41 - whether proper to order issue of commission to a Judge - circumstances in which Judge ought be appointed examiner.

Practice Note (Chancery Deposition) 1981 1 WLR 1560 at p.1561

Universal Seaways Pty. Ltd. v. Deby & Co. (Australia) Pty. Ltd. reported in Ritchie's Supreme Court Procedure (NSW) Volume 2, para 13,018

Lamshed v. Lake [1958] HCA 14; (1958) 99 CLR 132

Cope Allman (Australia) Ltd. v. Celermajer (1968) 11 FLR 488

Cotter v. Workman (1972) 20 FLR 318

HEARING

CANBERRA
16:9:1986

DECISION

This was an application for an order under Order 39 Rule 4 for a commission directed to the Honourable Mr. Justice Gallop, a Judge of this Court, to examine a witness. It is intended that the evidence given upon examination should be evidence in the trial of the proceedings. In those proceedings the plaintiff sues the defendant for libel. The libel is alleged to consist in the publication to a person in Canberra of a draft of a speech containing defamatory material. Although no defence has been filed, publication is or will be in issue. The witness concerned has furnished an affidavit which shows that he could give relevant evidence on the issue of publication. At the time of the application that witness was about to leave Australia to take up a post in the diplomatic service in the Middle East. Both parties agreed that the taking of the evidence of that witness by examination before his departure would save expense.

2. The power of the Court in relation to the taking of evidence upon commission is provided for in section 41 of the Australian Capital Territory Supreme Court Act 1933. The section reads:

"41. The Supreme Court or the Judge may, in any

suit or civil matter pending in the Court, and at
any stage of the proceedings -
(a) order the examination of any person upon
oath, orally or on interrogatories, before
the Court or Judge or before any officer of
the Court or other person; and at any place
within the Commonwealth;
(b) order a commission or letters of request to
be issued to take evidence;
(c) by the same or any subsequent order, give
any necessary directions touching the time,
place and manner of any such examinations;
and
(d) empower any party to the suit or civil
matter to give in evidence in the suit or
matter the testimony so taken on such terms
(if any) as the Court or Judge directs."

3. Some of the rules of Court make provision relating to the taking of evidence upon commission. In particular, Order 39 Rule 4 provides as follows:

"An order for a commission to examine witnesses,
and the writ of commission, shall be in accordance
with Forms 38 and 39 in the First Schedule
respectively".

4. The order originally sought was not opposed and I made it saying at the time that I did so with hesitation and that I would give my reasons at a later stage. I have since formed the view that where a party wishes evidence be taken from a witness in circumstances similar to those in the present case then it is not appropriate to seek an order for a commission addressed to a Judge of the Court. There are several reasons for this. The Rules provide that an order for a commission to examine witnesses is to be put into effect by the issue of a writ of commission directed to the examiner. The writ is to be in one of the forms in the First Schedule. Such writs are issued out of the Court in the name of the Queen under the hand of the Registrar of the Court. It is not appropriate, in my view, for such a writ to be directed to a judicial officer of the Court. Further, a Judge of the Court should not be required to take an oath, as directed by a writ of commission, in respect of a matter which is being litigated in the Court of which he is a member.

5. There are other factors relating to the appointment of a judge as examiner which I think deserve mention. They were considered by Sir Robert Megarry, V.C. in Practice Note (Chancery: Deposition) 1981 1WLR 1560 at p. 1561. I can do no better than repeat what that distinguished Judge had to say:

"In the event, no objections to any of the
evidence were taken, and so for most of two days I
simply sat and listened to the evidence, with
nothing to decide and no useful function to
discharge. In those circumstances I think that I
should provide some guidance for future cases.
First, I think that any litigant who wishes the
examination of a witness under Order 39 to take
place before a judge and not an examiner must make
out a sufficient case for such an order to be
made; and the burden is substantial. The time of
judges ought not to be spent on doing what can
perfectly well be done by an examiner, and in the
great majority of cases an examiner will suffice.
Only rarely will the greater authority of a judge
be needed, as where the witness is known to be
recalcitrant or unruly. Most certainly a judge is
not to be had for the asking.

Second, until the powers of a judge before whom an
examination is to be conducted are defined by
rules of court, it behoves those who seek such an
examination to agree beforehand, or to attempt to
agree, what those powers are to be. If the judge
is to have no greater powers than an examiner, it
will usually be very difficult to establish a
sufficient case for having a judge rather than an
examiner. Third, the extent of the powers that
the judge is to have should be defined in the
order for the examination, instead of being left
for discussion when the examination is due to
begin. Fourth, the order for examination should
make it explicit that it is to be before a
judge, and not leave it optional for the parties
to have it before a judge or an examiner, as they
choose. The master must exercise his judgment,
and decide whether or not it is a proper case for
a judge."

6. Having since the making of the original order formed the view that a writ of commission should not issue I arranged for the parties to attend in open court and by consent the order for the issue of a commission was vacated and in substitution an order was made pursuant to s.41(a) of the Act that the witness be examined before the Court.

7. In future cases where a party to proceedings wishes evidence of a witness to be taken in Canberra, or elsewhere in Australia, prior to the hearing of the proceedings, application should be made, not for the issue of a writ of commission, but for an order under s.41(a) of the Australian Capital Territory Supreme Court Act 1933 for the examination of the proposed witness before a named examiner. There should be evidence that the person named is willing and able to act as examiner. Where the circumstances so justify, application may be made for the examination to take place before the Court. Ordinarily, in the latter case, administrative arrangements will be made within the Court to assign a particular Judge to conduct the examination. There is no justification for an application for a commission or for letters of request to be issued unless it is proposed that evidence be taken outside Australia. If evidence is to be taken outside Australia then the applicant should pay attention to Part IIIB of the Evidence Act 1905 (Commonwealth) and to the matters mentioned by Rogers J. in the Supreme Court of New South Wales in Universal Seaways Pty. Ltd. v. Deby & Co. (Australia) Pty. Ltd., reported in Ritchie's Supreme Court Procedure (NSW) Volume 2, para 13,018.

8. I acknowledge that there may be room for the view that the proper course for the taking of evidence outside the Territory but within Australia is by letters of request addressed to the judicial authorities in the State or other Territory but I do not share that view. There is no constitutional objection to s.41(a) of the Australian Capital Territory Supreme Court Act 1933, which clearly authorises the making of an order for a witness to attend for examination before a Judge of this Court, or another person, sitting outside this Territory but within Australia: see Lamshed v. Lake [1958] HCA 14; (1958) 99 CLR 132, Cope Allman (Australia) Ltd. v. Celermajer (1968) 11 FLR 488, Cotter v. Workman (1972) 20 FLR 318.