Willis v Trequair [1906] HCA 32; (1906) 3 CLR 912 (24 May 1906)

HIGH COURT OF AUSTRALIA

Willis and Another Defendants, Appellants; and Trequair Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of New South Wales.

24 May 1906

Griffith C.J., Barton and O'Connor JJ.

Langer Owen K.C. (C. A. White with him), for the respondent;

Knox K.C. and Maughan, for the appellants.

Langer Owen K.C. (C. A. White with him), for the respondent.

Knox K.C., in reply,

The judgment of the Court was delivered by Griffith C.J.

May 24

Griffith C.J.

Barton and O'Connor JJ.

In this case the Supreme Court of New South Wales reversed an order made by A. H. Simpson, Chief Judge in Equity, granting a commission to examine one of the defendants in South Africa. This appeal is brought by the other two defendants who have appeared and defended independently. The ground of the appeal is that the appellant defendants are not in a position to procure the attendance of the first named defendant, who is in South Africa, and that he is a material witness for their case.

We think that the rule laid down by the Supreme Court of New South Wales in the case of Williams v. Mutual Life Association of Australasia[1] is the correct one, with a slight modification, of which we have not any doubt that the learned Judges themselves would have approved. These are the words of the learned Chief Justice[2]. He said, after referring to the case of Norton v. Lord Melbourne[3] and Lawson v. Vacuum Brake Co.[4], to the latter of which I will refer later:—"I am, however, prepared to lay down this principle, that 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." Mr. Justice G. B. Simpson made use of slightly different language[5]. He said:—"I agree as to what the 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." We agree with that statement of the law with this modification, 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 question in this case is whether it comes within any exception. The present appeal is brought by two of the defendants, although all three defendants had asked for the commission in the first instance. It may possibly be that, if the defendant who is in South Africa had made application on his own behalf, the application would not have been granted; on the other hand it might have been granted, but it is not necessary to consider that question now. The question for consideration now is whether the other two defendants are entitled to have the benefit of his evidence, or are to be deprived of it and compelled to go to trial without it. That the witness is material is not disputed. That the appellants are not able to procure his attendance is not disputed. The question, therefore, is whether they are to be compelled to go to trial without the means of proving their case.

Certain authorities were relied upon in support of the judgment of the Full Court, to which I will briefly refer. The first was Berdan v. Greenwood[6]. That was an application by a plaintiff for his own examination abroad. The reasons given for the issue of the commission were that he was ill, and that if he crossed the Channel the effect would be to seriously affect his health. After pointing out that all applications for a commission were in the discretion of the Court, the Court came to the conclusion that it was not a case for the exercise of their discretion in favour of the applicant. Cotton L.J. said[7]: "If, therefore, the plaintiff's evidence is necessary to his case, he must give it in the ordinary way in Court, for, in my opinion, he has not made out that he cannot do so without serious injury." That, therefore, was not a case falling within the rule enunciated by the Supreme Court of New South Wales, and which, as I have already stated, will be followed by us, with the modification stated. That case was explained afterwards by Cotton L.J. himself in the case of Langen v. Tate[8], where he said: "This case is quite different from the case relied upon in the Court below of Berdan v. Greenwood120 Ch. D., 764 (n).. There the Court was satisfied that the reason given for the plaintiff's not coming to England was a pretence, and was only brought forward to enable him to avoid being cross-examined in Court. The Court said that they would not assist him in that scheme, and that if his evidence were material to his case, he must come and give it in person. That authority, we think, does not apply to the present case." A fortiori it does not apply to this one, which is not the case of a party himself making the application. In another case relied upon, Lawson v. Vacuum Brake Co.[10] the decision, as stated in the headnote, was: "Where it is sought to have a material witness examined abroad, and the nature of the case is such that it is important that he should be examined here, the party asking to have him examined abroad must show clearly that he cannot bring him to this country to be examined at the trial." That is said not to be a strictly accurate statement of the decision. I will read some passages from the judgment, in order to see what was the ground of the decision. The witness whose examination was sought was a person who was said to have at one time entered into a conspiracy against the plaintiff and to have since then gone over to the plaintiff's side, and to be residing in Chicago, and it was stated that his evidence could not be procured in England. I will read from the judgment of Baggallay L.J. in order to show how it was considered not to be in the interests of justice to have the witness examined abroad. He said[11]: "Now the only evidence that was before the Vice-Chancellor which tended in that direction is contained in the affidavit of John Battams." His Lordship then read the affidavit referred to, and continued: "Anything more vague than this testimony one can hardly imagine. It is only on information and belief, though it is true that he adds, I am able to make the foregoing statements from knowledge derived from letters written by the plaintiff from America to my said principals. That is all the information we have got as to the grounds on which it is contended that this gentleman should not be examined in England. We have no affidavit from himself, and no evidence from the plaintiff himself, but it is put upon this clerk's information and belief, followed up by Mr. Harper's affidavit." Cotton L.J., after giving reasons why such a witness should be examined in Court, said[12]:—"If, however, it could be shown that 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." Lindley L.J. was also a member of the Court, and he certainly put his decision upon a somewhat different ground, but he looked at the pleadings in the case, and said that he was not prepared to say that it was "for the purposes of justice" that the order should be made.

That case was referred to in the case of Coch v. Allcock & Co.[13]. Field J., who was a Judge of very large experience indeed in matters of practice, said[14]:—"The old rule which has governed the practice of the Courts for the last fifty years is not affected by the decision in Lawson v. Vacuum Brake Co.327 Ch. D., 137.. It is almost a matter of course in ordinary 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 to 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 is necessary, that, in the discretion of the Judge, may be a ground for refusing an order for a commission. This view of the law is supported by the decisions in Berdan v. Greenwood420 Ch. D., 764 (n). and In re Boyse; Crofton v. Crofton520 Ch. D., 760.." Wills J. referring to the case of Lawson v. Vacuum Brake Co.[18], said[19]:—"The decision proceeded 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." And, after referring to the circumstances in that case, he went on:—"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 upon commission, it lay upon him to make out that it was impossible to bring him to this country." That case was taken to the Court of Appeal, and Lindley L.J., who had been one of the Judges in Lawson v. Vacuum Brake Co.[20], sat, and concurred in the judgment of Lord Esher M.R., who, having pointed out that it was a matter of discretion, said, with regard to the case of a plaintiff asking for a commission to examine himself[21]:—"That also appears to me to be a matter of discretion, but the discretion will be exercised in a stricter manner, and the Court ought to require to be more clearly satisfied that the order for a commission ought to be made."

These cases then in no way conflict with the rule which I stated at the commencement. Then, it is said, that, looking at the nature of this case, it is improbable that the defendants will succeed at the trial, that collusion is alleged between them and the absent defendant, and that that is a reason why they should not be allowed to have him examined abroad. So far as the objection that it is improbable that they will succeed is concerned, I will quote a passage from the judgment of Fry J., in In re Boyse; Crofton v. Crofton[22]:—"In the next place, it is said that the claim is so manifestly bad on the face of the instrument that I ought to hear an argument on the preliminary question of the validity of the claim. According to the view which I take, it is my duty to attend to the nature of the case and the arguments upon it, so far only as to see whether there is any question to be tried, but not now to determine questions on the constuction or the nature of the instrument, or on the Stamp Act, or the Statute of Limitations, which, if they were determined in favour of the respondent, would be fatal to the claim, but, if this were determined against him, would leave the commission to go." For the same reason we have no right to speculate as to whether the plaintiff or the defendant is likely to succeed at the trial. We have to be satisfied that there is a question really to be tried. The defendants' case consists in a flat denial of the plaintiff's case. On that point there is one other authority to which I will refer, Ross v. Woodford[23]. In that case it was held that the Court will not regard the case of a defendant applying for a commission with the same strictness as the case of a plaintiff who has chosen his own forum. Chitty J. said[24]:—"There are many cases where the Court has been very reluctant to accede to applications by a plaintiff to take evidence abroad, because the tribunal has been chosen by the plaintiff himself; so too with regard to the case of a plaintiff asking for a commission to examine himself, the Court has full discretion, but it exercises that discretion strictly, and does not grant the application unless a very strong case is made out; but the case is entirely different when it is the defendant's application, and particularly that of a defendant lawfully resident out of the jurisdiction, according to the ordinary course of his life and business: and to compel these defendants to come over here, at great expense to attend the trial, or give up their case, would be oppressive and unfair, and in my opinion it would be wrong to apply to the case of a defendant the principles that are applicable to the case of a plaintiff asking for a commission to examine himself." What then is to be said when it is sought to apply these principles to the case of a defendant who does not seek to have himself examined, but another person who is out of the jurisdiction? To deny the defendants an opportunity of examining him would be to deny them an opportunity of defending themselves.

Applying the principle stated in Williams v. Mutual Life Association of Australasia[25], we are of opinion that the order made by A. H. Simpson Chief Judge in Equity was properly made, and that the appeal should have been dismissed.

Appeal allowed. Order of A. H. Simpson Chief Judge in Equity restored, and appeal from his decision dismissed with costs. Respondents to pay the costs of this appeal.

Griffith C.J. By consent of the parties the commission is ordered to lie in the office for one month, with liberty to either party to apply to the Court of Equity to extend that period on the ground of the immediate probability of the return of Willis.

Solicitors, for the appellants, F. Y. Wilson, and Beehag, Simpson & Petrie.

Solicitors, for the respondent, Minter, Simpson & Co.

[1] (1904) 4 S.R. (N.S.W.), 677.

[2] (1904) 4 S.R. (N.S.W.), 677, at p. 680.

[3] 3 Bing. N.C., 67.

[4] 27 Ch. D., 137.

[5] (1904) 4 S.R. (N.S.W.), 677, at p. 680.

[6] 20 Ch. D., 764 (n).

[7] 20 Ch. D., 764 (n), at p. 769.

[8] 24 Ch. D., 522, at p. 528.

[9] 20 Ch. D., 764 (n).

[10] 27 Ch. D., 137.

[11] 27 Ch. D., 137, at p. 142.

[12] 27 Ch. D., 137, at p. 143.

[13] 21 Q.B.D., 1.

[14] 21 Q.B.D., 1, at p. 2.

[15] 27 Ch. D., 137.

[16] 20 Ch. D., 764 (n).

[17] 20 Ch. D., 760.

[18] 27 Ch. D., 137.

[19] 21 Q.B.D., 1, at p. 3.

[20] 27 Ch. D., 137.

[21] 21 Q.B.D., 178, at p. 181.

[22] 20 Ch. D., 760, at p. 771.

[23] (1894) 1 Ch., 38.

[24] (1894) 1 Ch. 38, at p. 42.

[25] (1904) 4 S.R. (N.S.W.), 677.