OUTCOMES AND REASONS
28 The motions came on for hearing before Logan J. His Honour dismissed the motions concerning the taking of evidence by video link, vacated the orders concerning the receipt of evidence in Dubai, adjourned the trial (which was to have commenced on 1 August 2011) and ordered that further proceedings in the matter be stayed. He gave liberty to apply and reserved costs. In his reasons his Honour set out the history of the matter in some detail and, at [17] observed:
This is a case where, as has been plain in submissions made on earlier occasions, questions of credit, and considerable questions of credit at that, will arise for resolution. It would not, at least as I am presently advised, be procedurally fair in the circumstances of this case, where such issues arise, to hear evidence from some whose credibility is at issue and then adjourn the trial for an indeterminate period pending the reception of evidence from others whose credibility is at issue.
29 His Honour noted that Mr Joyce had consistently sought an early hearing of the case and continued so to do. Logan J also observed that there had been some doubt as to whether the Court's jurisdiction had been properly invoked. Although the reasons for such doubt are unclear, they may have involved the fact that the Australian proceedings concern land in Dubai. In any event, his Honour understood that the issue was no longer a live one. Logan J noted that the judicial power of the Commonwealth must be exercised in a way which is procedurally fair. His Honour considered that where issues of credibility were concerned, it was not desirable that a trial be adjourned part-heard, and that Mr Joyce would have to be cross-examined on his affidavit. He then referred to various authorities concerning the exercise of judicial power, limitations upon a state's interference in the affairs of another state and notions of comity between states. Logan J considered that in connection with those matters, the views of the executive government, as reflected in the correspondence with DFAT, should be persuasive, but not determinative of the issues before him. His Honour observed that the Court should form its own views as to the import of particular communications, whilst conceding that it did not have the benefit of the Australian diplomatic service network and the experience gained in dealing with foreign governments. He acknowledged that it was for the executive government to conduct foreign relations, and that it would be "a considerable thing for a judge to form a different view as to the import of communications with a foreign government".
30 His Honour then observed that however one considered the matter, the UAE government had not consented to evidence being taken by video link. He acknowledged that it might be argued that there was no refusal of such permission but doubted the correctness of such an argument. In any event the pertinent matter was that there was no permission. Such absence of permission was important because of the views expressed in the cases that the reception of evidence by video link occurred "in the judicial proceedings". His Honour referred to various authorities to that effect, in particular the decision of Thomas J in Yamouchi v Kishimoto (2002) 12 NTLR 32 where her Honour said:
I accept the submission made by Mr Walsh QC that without appropriate authorization it would be a breach of Japanese sovereignty for this Court to order that such evidence be given by way of video link, because the room where the person is giving evidence on video is deemed to be part of the Northern Territory Supreme Court.
31 His Honour also referred to observations by Owen J in Bell Group Ltd (In Liq) v Westpac Banking Corporation (2004) 208 ALR 491 that:
The problems would, of course, be exacerbated if the taking of evidence by video link were found to be a breach of the sovereignty of the foreign power. It would always be advisable to seek advice from the authorities in the foreign place whether they have any objection to the taking of evidence by this method in a particular case. This advice would usually be sought through the Department of Foreign Affairs and Trade. But advice given by executive authorities in a foreign place might not bind the courts of that jurisdiction. It would no doubt be persuasive but once again falls short of the degree of certainty that I would require.
32 Logan J was not disposed to differ from DFAT's view that the taking of evidence on commission in Dubai had been refused by the UAE government. His Honour also considered that there was no evidence, "that the UAE government would permit the taking of evidence by video link". He was concerned that to embark upon that course:
… without that permission, … would be seen to be, or could be seen to be, a subversion of a refusal by a sovereign government to permit the taking of evidence on commission on its soil. In my opinion, the taking of evidence by video link in the course of a proceeding in this Court forms part of a proceeding in the exercise of Commonwealth judicial power.
33 His Honour then noted that the parties had submitted that any video link would involve persons who had consented to give evidence in that way, and that in this sense there was no "assertion of Australian judicial power". However his Honour rejected that submission, saying:
A reason for so doing [that is rejecting the submission] was highlighted in the submissions made on behalf of the Sunland parties. If the evidence is taken by video-link and in the course of that evidence an objection is taken, it would be necessary for me to rule upon that. If the ruling were adverse to the objector, in the ordinary course in any judicial proceeding I would then require that witness to answer that question. That requirement would necessarily be communicated to a person in Dubai. In the ordinary course of giving evidence in this Court, that requirement would bind that person and subject that person to the pains and penalties of contempt if an answer were not given.
34 In our view, a direction that a witness answer a question, addressed to a person in Dubai, is no different from any other order made by this, or any other Australian court against a party who has submitted to its jurisdiction and is, at the time of the order, in a foreign country, at least to the extent that compliance with the order involves some action in the foreign country.
35 His Honour then continued at [42]:
As I see it, that the person has attended voluntarily as opposed to under compulsion is relevantly a distinction without a difference. The voluntary attendance in Dubai for the purpose of giving evidence by video-link in a proceeding in this Court is not different to a voluntary attendance in person, absent a subpoena, to give evidence before the Court. Once the person presents him or herself to the Court to give evidence that person is then obliged to answer such questions as are permitted by the Court to be asked by counsel. That being so, it seems to me that, in the absence of permission from the authorities in Dubai to the taking of evidence by video-link, I ought not countenance that, especially given the express refusal, seemingly, by that government for me to go to Dubai to take evidence on commission from those persons. That I would regard as an impertinence in terms of the obligations described in the passage quoted from Oppenheim that usually attend relations between nation states.
Of course, the taking of evidence on commission is not in itself a judicial act. The taking of evidence on commission is a procedure whereby evidence is taken from a witness which then becomes, after it has been taken, the subject of tender in a judicial proceeding … .
36 The relevant passage from Oppenheim (Jennings R and Watts A, Oppenheim's International Law (9th ed, Longman, 1992)) at 385 and 386 is as follows:
It is not feasible to enumerate all such actions as might constitute a breach of a state's duty not to violate another state's independence or territorial or personal authority. But it is useful to give illustrative examples. Thus, in the absence of treaty provisions to the contrary, a state is not allowed to intervene in the management of the internal or international affairs of other states, or to prevent them from doing or to compel them to do certain acts in their domestic relations or international intercourse. A state is not allowed to send its troops, its warships or its police forces into or through foreign territory, or its aircraft over it, or to carry out official investigations on foreign territory or let its agents conduct clandestine operations there, or to exercise an act of administration or jurisdiction on foreign territory, without permission.
37 We presently have difficulty in understanding why a person who has submitted to the jurisdiction of the Court as a party, should not be able to agree to a procedure to facilitate resolution of the relevant dispute, even if steps are to be taken in a foreign country, provided that they are not forbidden by the law of that country.
38 His Honour then referred to a submission that he could appoint himself to be a commissioner or examiner to take evidence by video link in Australia. His Honour acknowledged the ingenuity of the submission but concluded that it would not produce any different result, and that it would be an impertinence, and contrary to the principles identified in Oppenheim for him to do so. He considered that it would also be contrary to notions of comity.
39 Logan J concluded that he should not order the taking of evidence by video link. However he did not "forever" foreclose such a course. His Honour apparently considered that there would be little point in the Court seeking further assistance from DFAT. He was, however, happy to allow the parties to seek other solutions to the problem. His Honour noted that the Sunland companies had not pressed for the taking of evidence by video link, although they proposed that the possibility be preserved as an option for the future. His Honour approved of that approach.
40 Logan J then referred to the advice received from the lawyers, to which we have already referred. That evidence establishes that there is no specific legislation in Dubai dealing with the taking of evidence for use in foreign proceedings, and that there is no law protecting witnesses from being sued with respect to their statements. His Honour referred to their statement that:
As previously advised, we could not identify any provision prohibiting the hearing of the witnesses in Dubai for use in foreign proceeding. However, you will appreciate that we cannot confirm nor give you any guarantee that the Dubai government would not object or intervene in the Australian Court taking evidence from the witnesses in Dubai for the use in the Australian proceeding.
41 His Honour considered that it would be desirable that, before the Court ordered that evidence be taken by video link there be evidence that the UAE government had no objection to the taking of evidence by video link, "at the very least". His Honour then referred to s 47A of the FCA. That section authorizes the Court to take evidence by video link and, in an appropriate case, to dispense with an oath or affirmation. His Honour said that the question was not as to the Court's power to order the reception of evidence by video link, but rather as to the exercise of the discretion to do so. His Honour considered that the section did not detract from the fact that the taking of evidence was part of judicial proceedings, and that to require that evidence be given in judicial proceedings is to assert judicial power. His Honour concluded that as it was not possible to take Mr Joyce's evidence, the proceedings should be temporarily stayed.