Earl Raymond Hagaman v Barbara Jean Fairbank

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 18 November 2010
• Neutral Citation: [2010] NZCA 526
• Docket Number: CA682/2010
• Court: Court of Appeal
• Date: 18 November 2010

BETWEEN

Earl Raymond Hagaman

Appellant

and

Barbara Jean Fairbank

Respondent

[2010] NZCA 526

Court:

Ellen France, Randerson and Stevens JJ

CA682/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against a High Court decision which granted a request for assistance from a Californian Court relating to evidence in matrimonial proceedings — parties were married in the United States which was dissolved in 1982 — respondent lodged proceedings in California — High Court held that the request complied with s184 (application for assistance) and s185 Evidence Act 2006 (power of High Court to give effect to application for assistance), that evidence relating to pre-marital agreements could be admitted and that the appellant's solicitors and trustees could give evidence — whether the orders made required steps to be taken which could not be required in New Zealand civil proceedings and were a breach of s185(3) — whether the request should have denied onthe grounds of legal privilege — whether trustees should be compelled to give trust information to a non-beneficiary — whether the request should have been denied on grounds of delay and oppression.

Counsel:

T C Weston QC for Appellant

P F Whiteside and J W A Johnson for Respondent

• A The appeal is dismissed.

• B The appellant must pay the respondent costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

	Para No.
Introduction	[1]
Background	[3]
The High Court judgment	[13]
The statutory scheme	[16]
The issues	[22]
Jurisdiction	[24]
Application of s 185(3)	[27]
Submissions	[28]
Discussion	[31]
The effect of the request on the trustees	[49]
Legal privilege	[52]
The request for documents	[55]
The discretionary factors	0
Disposition	[60]

Introduction

1 In an oral judgment delivered on 5 October 2010, Panckhurst J ordered that evidence be taken in New Zealand for use in matrimonial proceedings brought in a Californian court by Barbara Fairbank against her former husband, Earl Hagaman. 1 The application for orders was made to implement a request for assistance issued by the California court and was granted under ss 184 and 185 of the Evidence Act 2006. The orders made by Panckhurst J as a result of the decision to provide assistance will enable oral evidence to be taken from a number of New Zealand residents and will require the production of documents by two of the deponents.

2 Mr Hagaman appeals against the decision to provide assistance primarily on the basis that the orders made require steps to be taken which cannot be required to be taken “by way of obtaining evidence for the purposes of civil proceedings” in the High Court and so breach s 185(3). In addition, the appellant says the application should have been declined for a number of reasons including the impact on information protected by legal privilege.

3 Barbara Fairbank and Earl Hagaman married in the United States of America in 1961. They separated in 1981 and their marriage was dissolved in May 1982.

4 After separation, Ms Fairbank issued proceedings in the Superior Court of California seeking, amongst other matters, orders for the division of property. The proceedings were not determined because, in 1983, the parties entered into two agreements about their relationship property (one relating to assets in the United States and one dealing with assets in New Zealand).

5 Mr Hagaman moved to New Zealand at about the time that the relationship property agreements were entered into.

6 It appears that the parties have differing views on the extent to which these agreements finally resolved matters between them and, in 2005, Ms Fairbank brought relationship property proceedings in New Zealand. These proceedings were stayed after John Hansen J concluded that the appropriate forum was California, not New Zealand. 2 Ms Fairbank then revived the proceedings in California. As part of those proceedings, the originating application to which the present appeal relates was filed in the High Court in Christchurch. The application was made to implement a September 2010 request from the Los Angeles Court for assistance.

7 The request for assistance sought the examination of eight witnesses by way of taking of oral depositions and, in relation to two of the witnesses, the production by them of specified documents. The request proposed that the eight be examined and questioned by attorneys who had been retained by the parties and that the proceeding be transcribed by a California court reporter in terms of the California Code of Civil Procedure. The request records that Judge Schnider, a retired Judge of the Los Angeles County Superior Court, is to preside and act as “discovery referee” over the evidence taking and to issue rulings under California law as to any objections to questions or any issues about how the depositions are conducted. The request also states that, subject to any rulings or orders from the High Court of New Zealand, Judge Schnider is to apply Californian rules of procedure and evidence and the substantive law of California. Pankhurst J made orders generally reflecting the terms of the request.

8 The eight witnesses are Mr Hagaman's present wife, two New Zealand solicitors, four men who have had dealings with Mr Hagaman and a woman who has helped him with secretarial tasks in respect of his personal affairs.

9 In terms of documents, the orders made by the High Court direct that Mr Hagaman's current wife, Lani Hagaman, is to produce:

• (a) All pre-marital, pre-nuptial or relationship property agreements entered into with [Mr] Hagaman; …

10 The orders also provide that Alan MacAlister, a solicitor, is to produce:

The trust account record of financial transactions of [Mr] Hagaman for the year ended 31 March 1989.

11 As we understand it, the procedure for deposing the witnesses will involve the American lawyers questioning the witnesses here in New Zealand with Judge Schnider present via Skype link-up.

12 At the time we heard the matter, the exigencies of the Californian court's timetabling were such that the oral depositions were to be concluded by 5 November 2010 with the hearing in California commencing on 10 November 2010. Since the hearing, we have been advised that both dates have been extended by the Californian court to 29 November 2010. Release of our judgment has been delayed by delays in finalising the sealed orders of the High Court.

The High Court judgment

13 Panckhurst J concluded that the request satisfied the terms of ss 184 and 185. In particular, he concluded that there was no breach of s 185(3), which prohibits orders requiring the taking of steps which cannot be required for civil proceedings in New Zealand, or of s 185(5), which deals with the scope of requests for the production of documents.

14 Further, the Judge said that objections based on matters of legal privilege could be dealt with by retired Judge Schnider or could be referred to the High Court.Mr Hagaman had also objected to the request on the basis that some of the information was held by persons in their capacity as trustees. Panckhurst J expressed the tentative view that the trustees could be asked questions and may be compelled to answer. He noted the power under s 69 of the Evidence Act to direct that confidential information not be disclosed in appropriate circumstances.

15 On the discretionary factors, while delay was a factor, Panckhurst J deferred to the view of the Californian court that this was not significant. Finally, the Judge rejected the submission that the request was oppressive.

The statutory scheme

16 Section 184 of the Evidence Act provides that a High Court Judge may exercise the powers conferred by s 185(1) if the Judge is satisfied of the matters referred to in s 184. Those matters include the requirement that the application for the taking of evidence is made to implement a request issued by a foreign court.

17 Section 185(1) provides that if the section applies the Judge may make orders for the taking of evidence. Those orders may include provision for the examination of witnesses orally or in writing, and for the production of documents. 3

18 Section 185(3) states:

An order under subsection (1) may not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings 4 in the High Court (whether or not proceedings of the same description as those to which the application for the order relates).

19 In terms of s 185(5), an order under s 185(1) may not require a person:

• (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person's possession, custody, or power:

• (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in the person's possession, custody, or power and relevant to the proceedings.

20 Section 185(6) states that persons required to attend are entitled to payment for expenses and loss of time.

21 Finally, s 186 deals with the privileges of witnesses. Section 186(1) makes it clear that a person may not be compelled by an order under s 185(1) to give any evidence he or she could not be compelled to give:

• (a) in civil proceedings in New Zealand; or

• (b) in civil proceedings in the country in … which the requesting court exercises jurisdiction.

The issues

22 The substantive appeal can be dealt with using the parties' list of agreed issues which requires consideration of the following:

• (a) The application of s 185(3) of the Evidence Act;

• (b)...