Novotny & Anor v Todd

[2002] WASCA 79

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Taking of evidence abroad
3. › Letters of request
4. › Whether letters of request sought discovery from third parties
5. › Whether evidence solely directed at admissibility of documents within scope of s 110
6. › Whether materiality of evidence established
7. › Evidence Act 1906 (WA), ss 110, 79C
1. Evidence
2. › Foreign evidence
3. › Letters rogatory
4. › Power to request production of documents ancillary to taking of evidence
5. › Distinction between taking evidence and obtaining discovery
6. › Evidence Act 1906 (WA), ss 109-114
1. Appeal
2. › Leave to appeal from Master
3. › Standard for grant of leave
4. › Whether decision attended with sufficient doubt and substantial injustice
5. › Supreme Court Act 1935 (WA), s 60(1)(f)
6. › Supreme Court Rules 1971 (WA), O 63A

Quick Take

Letters of request under s 110 of the Evidence Act 1906 (WA) cannot be used to obtain what is in substance third-party discovery from foreign entities. While testamentary evidence directed solely at securing the admissibility of documents can fall within s 110(2)(b), the applicant must establish the existence or probable existence of particular documents and their materiality to an issue in the proceedings; bare unsupported assertions are insufficient. The 'materiality' standard for letters of request is higher than the discovery relevance test.