FEI NIU Philip v. Maxima Resources Corporation & Ors

M, the first defendant in a civil suit, sought an order by way of interlocutory application that the oral evidence of the third defendant, P, and her daughter, J,  be given by video link from Taipei, Taiwan, rather than by travelling to Samoa. P’s evidence was crucial to the determination as to who was the beneficial owner of M.

P was 91 years old and based overseas, but had stated that she was willing to travel and pursue her interests in the Samoan courts. Despite a medical report by her doctor that she should only travel long distance for required medical treatment, P stated in two affidavits that she was in good health and this was supported by F, the plaintiff and P’s son and a medical note provided by another doctor. Prior to disposing of the application the Supreme Court had to determine whether it had jurisdiction to hear the motion.

[Adapted from INTERIGHTS summary, with permission]

In dismissing the motion, it was held that:

(1) The Court had jurisdiction to order that the evidence of an overseas witness be given or taken by video link if in the interests of justice it was necessary to do so for the purpose of Court proceedings. was is the first such motion to come before any Samoan Court, and it gave rise to a procedural issue which was not provided for in the Judicature Ordinance 1961 or the Supreme Court (Civil Procedure Rules) 1980. However, under r.206, in such a situation, the court should dispose of it in the manner best calculated to promote the ends of justice.

(2) In addition, but distinct, the Court had an inherent jurisdiction to control its own procedures in order to serve the interests of justice. The legislature had given this Court wide jurisdiction, power and authority which may be necessary to administer the laws of Samoa.

(3) The decision as to whether an application to allow the evidence of an overseas witness to be given by video link should be granted, involved a balancing exercise between the inconvenience to the witness in attending Court to give evidence and considerations of fairness to the other party. If the inconvenience to the witness was outweighed by any unfairness to the other party, the application should be denied (Ithaca (Custodians) Ltd v Perry Corporation (2002) 16 PRNZ 773; Kuo Chu v Lili Han (2003) (unreported judgment delivered on 8 October 2003); Aeromotive Ltd v Page (2002) 16 PRNZ 329; and Australian Medical Imaging Ltd v Marconi Medical Systems Australia Pty Ltd (2001) NSWSC 651 followed.)

(4) Further, an application for the evidence of a witness to be given by video link must be supported by affidavit showing good reason for the witness’s non-attendance and any other relevant matters. It would also be good practice for a party opposing the application to support his opposition by affidavit showing any unfairness or prejudice to him if the video link application was granted and any other relevant matters. This was the procedure followed by counsel in this proceeding.

(5) It had not been proved to the necessary degree of confidence that it was inappropriate for the third defendant to travel to Samoa to give evidence because of her health condition. Two of the third defendant’s affidavits, as well as the affidavit of the plaintiff and a note from the third defendant’s geriatrician, all showed that she was still in relatively good health for her age. She was still very active both physically and mentally: she swum, played golf and did callisthenic exercises five times a week; in 2003 she went to New York, and in 2005 she attended a dinner party alone and unaided and made a speech there.

(6) Furthermore, the statement of the third defendant’s doctor that she was unsuited for long distance travel except in situations of clear medical necessity, was unclear. There was no explicit statement that she was physically incapable of going to Samoa or that her health would be at risk if she did.

(7) Travel costs were not a major consideration. The third defendant was a very wealthy lady and so could travel first or business class, choosing an airline route that would involve two shorter trips, rather than a direct flight. A doctor could accompany her if necessary.

(8) Applying the approach of balancing the inconvenience to the overseas witness against any unfairness to the plaintiff, the scale came down in favour of declining the first defendant's motion. On the one hand, the trip from Taiwan to Samoa would be an inconvenience to the third defendant because of her old age. However, this would be more a physical than mental inconvenience, as she was willing to go to Samoa and had every intention of attending the trial in person.

(9) However, on the other hand, the underlying concern was whether the facilities proposed to be used were adequate to afford procedural fairness, particularly to the party opposing the use of video link. The Samoan Courts did not have the technology for hearing evidence at trial by video link. Given the novelty of this motion, it was incumbent on the first defendant to establish adequately the reliability of the facilities at the National University of Samoa which it proposed to be used. He should also have established that the necessary expertise was available to operate the new technology.

(10) While issues such as whether the use of video link would affect the quality of the evidence, unduly affect the free-flow of cross-examination, or affect the assessment of credibility are often relevant, the real question was whether the local link proposed to be used would be effective. There was no evidence as to the quality or reliability of the link in this case. Further, if the third defendant and her daughter were allowed to give evidence by video link, their viva voce evidence, which would consist mainly of evidence given under cross-examination, would likely to take one to two days, but there was no evidence that the proposed link would be available when required.

(11) In addition to the question of the quality and reliability of the video link facility, other relevant factors were the importance of the case to the parties and particularly to the plaintiff if he lost, given that it involved millions of US dollars, the accuracy of the register of members and the register of directors kept by the second defendant and therefore to the country’s credibility as an internationally recognised jurisdiction for offshore companies; the importance of the third defendant as a witness in this case since the central contest was essentially between her and the plaintiff ; and the crucial importance of credibility as an issue given the very conflicting nature of the affidavit evidence. In fact, the need for viva voce evidence in this matter arose because in the previous proceeding, the judge found it unsafe to make any findings of fact due to the very conflicting nature of the affidavit evidence on every major issue.

(12) In addition, even though it was strictly outside the balance of inconvenience versus unfairness to the plaintiff approach, the lateness in the first defendant’s motion which was made barely two weeks before the start of the trial should weigh against granting the motion. Further, if the third defendant were allowed to give evidence from Taiwan, the video link that would be used is in the office of the third defendant’s solicitors in Taiwan, which was not a neutral ground.

[Adapted from INTERIGHTS summary, with permission]

INTERIGHTS Comment: Both the New Zealand and Australian authorities show differing judicial opinions on the advantages and disadvantages in the use of video link for taking the evidence of witnesses. The position will undoubtedly change as the Samoan Courts gain experience in the use of this new video link technology for taking the evidence of witnesses at trial (B v Dentists Disciplinary Tribunal (1994) 1 NZLR 95, Aeromotive Ltd v Page (2002) 16 PRNZ 239, Ithaca (Custodians) Ltd v Perry Corporation (2002) 16 PRNZ 773 and (2003) 2 NZLR 216, Kuo Chu v Lili Han (8 October 2003 unreported) and ASIS v Rich (2004) NSWSC 467 considered)

Lawyers:

For the First and Third  Defendants: W Akel (of the New Zealand Bar) and T K Enari

For the Plaintif : M Ring QC (of the New Zealand Bar) and R Drake For the Second Defendant: G Stowers

Judge: Sapolu CJ