Hardie Rubber Co Pty Ltd v General Tire & Rubber Co [1973] HCA 66

Hardie Rubber Co Pty Ltd v General Tire & Rubber Co [1973] HCA 66

It is proper for the Court to order the issue of a letter of request for examination of witnesses abroad when there are grounds to believe material evidence is available and attendance cannot be procured, unless injustice would result. The evidence indicated that relevant records and witnesses could likely provide material evidence on key technical issues and procedural safeguards were sufficient to avoid injustice to the applicant. Procedural or evidentiary difficulties and minor defects in the supporting affidavits did not justify discharge of the order; instead, the order should be varied to safeguard fairness (including on admissibility and costs).

Jurisdiction
Australia
Procedural Posture
Appeal; Motion to Vary Order / Appeal From Interlocutory Order; Final Orders of Full Court
Outcome
Appeal dismissed; earlier orders vacated; order for letters of request to issue as per agreed draft, with variations.
Legal Topics
['patent Infringement' 'taking Evidence Abroad' 'letters of Request' 'judicial Discretion in Evidence Collection' 'procedural Fairness' 'discovery' 'relevance of Evidence']
['intellectual Property' 'civil Procedure'] ['patent Infringement' 'taking Evidence Abroad' 'letters of Request' 'judicial Discretion in Evidence Collection' 'procedural Fairness' 'discovery' 'relevance of Evidence']

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Procedural Posture

Appeal; Motion to Vary Order / Appeal From Interlocutory Order; Final Orders of Full Court

Legal Issues

  1. 1 ['Whether the Court should order the issue of a letter of request for examination of witnesses abroad.' 'Whether witnesses in Japan can give material evidence relevant to the issues in the action and such evidence cannot be procured within the jurisdiction.' 'Whether the procedure for taking evidence in Japan would cause injustice to the applicant.' 'Whether there was want of frankness in the ex parte application.']

Ratio Decidendi

It is proper for the Court to order the issue of a letter of request for examination of witnesses abroad when there are grounds to believe material evidence is available and attendance cannot be procured, unless injustice would result. The evidence indicated that relevant records and witnesses could likely provide material evidence on key technical issues and procedural safeguards were sufficient to avoid injustice to the applicant. Procedural or evidentiary difficulties and minor defects in the supporting affidavits did not justify discharge of the order; instead, the order should be varied to safeguard fairness (including on admissibility and costs).

Court Disposition

Appeal dismissed; earlier orders vacated; order for letters of request to issue as per agreed draft, with variations.

Orders

  • ['Order made for issue of new letter of request to Japan as per draft and agreed questionnaires.' 'Costs of and incidental to the application, the letter of request, and examination reserved.' 'Plaintiff to give security for defendant’s costs occasioned by the letter of request, amount to be settled by the...