British American Tobacco Australia Services Ltd v Eubanks for the United States of America

Judgment 1HIS HONOUR: On 25 June 2013 Rothman J made orders, pursuant to s 33 of the Evidence on Commission Act 1995, to obtain evidence from a Sydney resident, Mr Edmund Obiala, for the purpose of certain civil proceedings in a court in Gdansk, in the Republic of Poland. Put shortly, the proceedings arise from a dispute concerning an agreement in 2008 for the sale of certain shares in a Polish company. Those shares were held by another company, Southwest Invest Corporation, in which Mr Obiala had an involvement. As I understand it, it is alleged by the plaintiff, the purchaser of the shares, that they were dealt with in a manner inconsistent with his interest as purchaser. The defendant, Andrzej Drania, was said to be the lawyer representing Southwest Invest Corporation and there is an issue whether he was acting under a power of attorney given him by that company. Mr Obiala is believed to be able to give evidence on that issue. 2Deputy Registrar Matulewicz was appointed to undertake the examination of Mr Obiala, which commenced on 31 July 2013. The Attorney General was represented by Mr Gerard of counsel, who also appeared in this court. The evidence sought was set out in a series of questions which had been supplied by the lawyer acting for the plaintiff in the Polish proceedings. The first six of those questions related to Mr Obiala's involvement in Southern Invest Corporation, seeking information as to his shareholding and functions in that company. Mr Obiala objected to answering those questions, relying upon Article 261.2 of the Polish Code of Civil Procedure. 3Relevantly, that Article provides: "1. Nobody has the right to refuse to testify as a witness other than the spouse, ascendants, descendants and siblings of a party or his relatives by affinity in the same line or degree, or persons related to them by adoption. ... 2. A witness may refuse to answer a question if his testimony could expose him or his relatives referred to in the preceding clause to criminal liability, disgrace or direct and severe financial loss, or if his testimony would involve violation of a critical professional secret. ..." A copy of the article was provided to Mr Obiala at the request of the Gdansk court, although without any comment as to whether there might be any basis upon which he could avail himself of it. 4Mr Obiala said that he had resigned from the company before the date on which the agreement to sell the shares was made and, citing Article 261.2, said that he would not answer the questions "because I think they could have some implementation in relation to my business partners before I resigned ... ." Asked by the deputy registrar to clarify his objection, he repeated that the questions related to a period prior to his resignation and that he would not answer because of "critical professional secrets to my partners ... ." 5After some discussion with Mr Gerard, there was the following exchange between the deputy registrar and Mr Obiala: "DEPUTY REGISTRAR: ... So my understanding is that your basis for objecting to answering questions 1 to 6 is that, to paraphrase, it may - the answers may incriminate you-- EXAMINEE OBIALA: Or my partners. DEPUTY REGISTRAR: --or your business partners. EXAMINEE OBIALA: Yes it is a matter against my former business partners and when I resign in February 2008 all of these proceedings happen after when I resigned and prior to my resignation, I think I wouldn't like to give that information based on this paragraph." "This paragraph", presumably, was a reference to Article 261.2 of the Code. 6There was a short adjournment, following which Mr Gerard questioned Mr Obiala as follows: "Q. Mr Obiala you have taken objection to answering questions 1 through 6 of the questions outlined in the letter of request, that's correct isn't it? A. Correct. Q. You have cited Article 261, the Code of Civil Procedure, the second subsection in support of that is that correct? A. That's correct. ... Q. Can you please describe why you take objection to answering questions 1 through 6? A. Because of the business partners which have been part of the company and I wouldn't like to outline what the relationship and what the distribution of the shares was. Q. Is there anything specific contained in Article 261.2 that you would draw attention to in taking your objection? A. Apart from the business partners, no." Immediately after this, after re-reading the Article from the Code, Mr Obiala said, "The summary talking about the moderation of the critical professional secret and obviously, I wouldn't like to expose my family to any liability." 7The examination was stood over generally, and the Attorney General seeks to remedy this impasse by the motion which is before me. To understand the orders sought, it is necessary to examine s 34 of the Evidence on Commission Act and relevant UCPR provisions. 8Section 34 provides: "(1) A person must not be compelled by virtue of an order under section 33 to give any evidence which the person could not be compelled to give: (a) in similar proceedings in the State, or (b) in similar proceedings in the place in which the requesting court exercises jurisdiction. (2) Subsection (1) (b) does not apply unless the claim of the person in question to be exempt from giving evidence is either: (a) supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled), or (b) conceded by the applicant for the order. (3) If such a claim by any person is not so supported or conceded, the person may (subject to the other provisions of this section) be required to give the evidence to which the claim relates, but that evidence is not to be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim. ..." Section 34(1)(a) needs to be addressed, but the primary focus is upon s 34(1)(b). As to that provision, the pre-requisites in subs (2) have not been met: there is no supporting statement or concession within the terms of paras (a) or (b) of the subsection. 9UCPR Pt 52 deals with taking evidence for foreign and Australian courts and tribunals. Relevantly, r 52.6 provides: "Privilege of witness ... (1) This rule applies if a claim by a witness to be exempt from giving any evidence on the ground specified in section 34 (1) (b) of the Evidence on Commission Act 1995 is not supported or conceded as mentioned in section 34 (2) of that Act. (2) The witness may be required to give the evidence to which the claim relates: (a) by the examiner, or (b) if the examiner does not so require, by the Supreme Court on the application of the person who obtained the order under section 33 of the Evidence on Commission Act 1995 ... (4) The following provisions apply if the evidence is taken pursuant to such a requirement: (a) the evidence must be recorded in a transcript ("the disputed transcript" ) that is separate to the transcript in which the rest of the witness's evidence is recorded, (b) the transcript of evidence that is sent to the principal registrar of the Supreme Court must be accompanied by a statement, signed by the examiner, setting out the claim and the ground on which it was made, (c) on receipt of the statement, the principal registrar of the Supreme Court: (i) must retain the disputed transcript, and (ii) must send to the requesting court, together with the documents mentioned in rule 52.4, both the statement and a request to determine the claim, (d) on receiving notice of the requesting court's determination of the claim, the principal registrar of the Supreme Court: (i) if the claim is rejected, must send the disputed transcript to the requesting court, or (ii) if the claim is upheld, must send the disputed transcript to the witness, and, in either case, must cause notice of the determination to be given both to the witness and to the person who obtained the order under section 33 of the Evidence on Commission Act 1995." 10The Attorney seeks three orders: (1)Any objection to giving evidence made by Mr Obiana under s 34(1)(a) of the Act is disallowed. (2) Mr Obiala is required to give the evidence to which any claim under s 34(1)(b) of the Act relates. (3) To the extent that any part of the examination is subject to a claim under s 34(1)(b), that part is to be conducted in accordance with UCPR r 52.6(4) and s 34(3) of the Act. 11The motion also seeks an alternative order which would deal with the situation under s 34(1)(b) by a different path. However, I accept Mr Gerard's submission that the second and third orders sought are the appropriate way to deal with the matter. 12As to order 1, I accept Mr Gerard's submission that s 34(1)(a) is not engaged. Nothing Mr Obiala said in support of his objection to giving evidence raised a privilege which would be recognised in proceedings in this State. As set out above, reference was made by the Deputy Registrar to the privilege against self-incrimination but nothing Mr Obiala said in response asserted any basis for incrimination of himself. The reference at that point to his "business partners" may have been intended to convey some detriment to them, but what that might have been is obscure. 13As to Article 261.2 of the Polish Code, he again made reference to his business partners, as well as to unspecified "professional secrets" and, finally, to his family. On this limited material, and in the absence of evidence of relevant Polish law, this court is in no position to make a finding about whether he would be compellable to give the evidence in Poland. 14In British American Tobacco Australia Services Ltd v Eubanks for the United States of America [2004] NSWCA 158 (reported in part in 60 NSWLR 483), the Court of Appeal had occasion to consider s 34(1)(b). The privilege against self-incrimination in foreign law arose in that case. Spigelman CJ said at [109] that the effect of that provision, and a provision in the Supreme Court Rules which was then relevant, was that an objection on the grounds of self-incrimination which invoked "the law with respect to that subject applicable in the jurisdiction of the requesting court, is to be determined by the requesting court." His Honour went on to observe at [110], "The practical utility of referring matters on such difficult questions as the privilege against self-incrimination arising under the law of a foreign nation to a court of that foreign nation, rather than deciding such a question of foreign law on the basis of expert evidence, is plain." 15Clearly, any claim by Mr Obiala for privilege under Article 261.2 should be resolved in the Gdansk court. He should be required to give the evidence in this court but that evidence should be dealt with in the manner prescribed by UCPR r 52.4. 16Mr Obiala appeared at the hearing of the application. He did not wish an opportunity to obtain legal advice. He provided a brief statement confirming that his position as to answering the relevant questions remains unchanged. He added that the transaction the subject of the proceedings had taken place after his resignation from Southwest Invest Corporation, and that he had not empowered Mr Drania to sell the subject shares. He accepted, however, that he must comply with the orders proposed by the Attorney. 17Accordingly, I make the orders set out in paragraph 1, 2 & 3 of the Notice of Motion. The Attorney does not seek costs.