Before me today for hearing is a notice of motion filed by the plaintiff on 10 May 2024 for an order pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ("the Act") for the Court to grant leave for the plaintiff's expert witness Songwei Li, and lay witness Enpeng Zhang, to give evidence to the Court at the trial commencing on 17 June 2024 by audio link or audio visual link.
That trial, as I understand, is listed for five days.
Mr Zhang and Mr Li reside in China.
The plaintiff, in support of the order she seeks, reads an affidavit of Li Feng sworn 10 May 2024. Mr Feng is the solicitor on the record for the plaintiff.
The application is opposed by the second and third defendants.
The first defendant, Changshun Wang has, I understand it, never appeared in the proceedings.
The second and third defendants rely on a letter between Mr Lu and Mr Feng (Mr Lu is the solicitor for the second and third defendants), forwarded on 7 May 2024 on the question of costs, to which I will return.
The proceedings were commenced by statement of claim filed on 19 November 2021 and concern a loan between the plaintiff and defendant relatives. The statement of claim pleads that around April 2016 the first defendant, Mr Wang, approached the plaintiff and asked her to lend him money to settle a property purchase. This was followed by a request by the second defendant, Ms Su, for the plaintiff to loan money, which the statement of claim pleads was the subject of an agreement made on or around May 2016, for a sum of over RMB 3,000,000 to be loaned for the purchase of a particular property, with an agreement for that loan to be repaid on request.
The statement of claim pleads the agreement was partly oral and partly in writing. To the extent the agreement was in writing, the statement of claim asserts that it was recorded on copies of the first and the second defendants' ID cards, which were signed by the first and second defendants respectively at a particular meeting.
The statement of claim pleads that it was a term of the agreement that the initial sum would be repaid at any time as directed or demanded by the plaintiff.
Sums were advanced in June 2016 and in late June 2016 a further sum of money was loaned by the plaintiff to the first and second defendants.
The statement of claim pleads that in February 2021 the plaintiff demanded repayment and again in April 2021. Various other facts are pleaded regarding sales and purchases of properties involving the defendants.
The end result is that the plaintiff claims unpaid interest amounts as well as an outstanding sum she identifies as $400,000 AUD.
An amended statement of claim filed on 15 August 2023 adds a third defendant, Zisu Wang, as a party. Other factual matters were extensively re-pleaded.
The second and third defendants filed substantive verified defences in September 2023, as well as amended defences.
A reply filed on 25 October 2023 joins issue with a number of matters raised in the defence.
I understand from counsel appearing today that there is an issue as to whether the law of China or law of Australia should apply to the loan agreement. That is the subject of expert evidence from an expert in China called on behalf of the plaintiff, Mr Songwei Li, and on behalf of the defendant, Mr Jixing Zhang. I understand that accommodation has already been reached to allow the defendants' expert, Mr Zhang, to give evidence by audio visual link from China.
Counsel appearing for the second and third defendants today maintains the position that there is complexity involved in cross-examining and dealing with the evidentiary matters that need to be put to the plaintiff's expert and so it would be "far superior" to have that expert physically present in Court, particularly given the language issue. Cross-examination will need to take place with English questions translated by an interpreter to Chinese Mandarin. The Chinese Mandarin answers then must come back to the Court in English and so on.
It seems to me that that consideration applies to both experts and if one expert is to give evidence by audio visual link, there really is no reason logically or otherwise, as to why the other expert, in this case the plaintiff's expert, could not give evidence in the same way.
Certainly during the COVID-19 pandemic all evidence and cross-examination was conducted by audio visual link over a period of some years. This Court and other places have vastly improved audio visual link technology and I take judicial notice of that fact.
It seems to me not unfair and indeed entirely appropriate that the plaintiff's expert give evidence by audio visual link and for that reason I would accede to the order in respect of that witness.
The other person the subject of the notice of motion is a lawyer in China who, according to his affidavit, has carried out certain tasks and searches instructed by the plaintiff. Counsel appearing for the second and third defendants submitted that cross-examination will challenge the reliability of his affidavit, including the websites that he used, the instructions that were provided to him by the plaintiff, and the actual tasks he performed and their adequacy.
I understand the submission is that this process should be conducted in the solemn environment of the court room.
A solicitor from an overseas jurisdiction would well understand the solemnity and importance of providing evidence to a Court, on oath or affirmation, particularly concerning his professional activities and obligations, whether physically present in the court room or not. This is not a case of a layperson who may not understand those matters and may be assisted by the solemn environment of the court room. I am not persuaded that argument provides a basis to reject the plaintiff's application.
Section 5B of the Act provides:
5B Taking evidence and submissions from outside courtroom or place where court is sitting - proceedings generally
(1) Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(2) The court must not make such a direction if -
(a) the necessary facilities are unavailable or cannot reasonably be made available, or
(b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c) the court is satisfied that the direction would be unfair to any party to the proceeding, or
(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.
…
Although a decision that predates the advances made in COVID-19, in Antov v Bokan (No 2) [2019] NSWCA 250, the Chief Justice, (then the President of the Court of Appeal), outlined at [50] a number of matters that are relevant to consider when dealing with an application of this type. In particular the observations relate to the key issue of whether constraining a party to cross-examining a witness by video link may be unfair to a party. His Honour cited relevant matters including the importance of the witness, whether the witness' credit is in issue, the nature and extent of the documents involved, whether translation of written or oral evidence is required, any relevant time differences between the fora, the quality of the technology, the time of the allocation relative to the trial, the availability of other options to the party making the application, and the circumstances of the relevant witness.
Although perhaps some more detail needs to be provided to the trial judge as to precisely where each witness will be and the specific availability of audio visual technology, there is no reason to expect that the relevant professional witnesses cannot set up such appropriate equipment and make themselves available at a time that suits the Court. There is no reason to doubt that the witnesses are able to do that. Whilst there will be some cross-examination as to assumptions made, and in the case of Mr Zhang, the reliability of his affidavit and the extent to which he performed the tasks he was asked to perform, I do not see that as his credibility being in issue, but more the extent to which he adequately carried out the relevant task about which he gives affidavit evidence. Whilst the need to use interpreters will add to the time taken for these witnesses' evidence, I do not consider that to be a factor that makes the situation unfair to the cross-examination such as to stand in the way of evidence being given by audio visual link, and I am satisfied it is in the interests of justice to do so: (s 5B(3) of the Act).
In making any orders for the conduct of proceedings in this Court I am required to bear in mind at all times s 56 of the Civil Procedure Act 2005 (NSW), which provides that:
"The Court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by the rules of Court and when it interprets any provision of this Act or of any such rule."
Subsection (1) provides:
"The overriding purpose of this Act and of rules of Court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
Rule 31.1 of the Uniform Civil Procedure Rules 2005 (NSW) provides for the manner of giving evidence at trial. That rule states:
"Subject to subrules 3, 4 and 5 and to the provisions of the Evidence Act 1995, a witness' evidence at a trial must be given orally before the Court."
It seems to me that the question of costs of bringing the two witnesses, the subject of the plaintiff's application to Australia, given that they are professional witnesses and so would be entitled to reimbursement for their professional time, as well as the costs associated with flights and accommodation, is a matter that I should bear in mind in a case that involves obviously a matter of importance to the parties but a sum in issue of about $600,000.
In all the circumstances I am satisfied that it is not unfair to the second and third defendants for the two witnesses identified to give evidence by audio visual link. I emphasise that evidence should be by audio visual link and not audio link in this particular case, and that the parties will be able to and should make arrangements for that to be accommodated as a matter of urgency. I note also that it would probably be appropriate for the experts for the plaintiff and the defendants in Chinese law respectively to give evidence concurrently, but I will not make that order and leave that for the trial judge to consider.
The plaintiff seeks her costs of the notice of motion. Counsel for the second and third defendants opposed costs being ordered in respect of the plaintiff's notice of motion on the basis that in a letter dated 7 May 2024, the solicitor for the second and the third defendants proposed to the solicitor for the plaintiff that each party should withdraw their notices of motion and accommodate each other, noting that the defendant filed a notice of motion in April 2024 seeking an order under s 5B of the Act for three lay witnesses to give evidence by audio visual link.
The letter of Mr Lu of 7 May 2024 proposed that his clients would withdraw their notice of motion and provide consent orders in respect of both notices of motion. That offer was open until 13 May 2024. The letter asserted that if the plaintiff's solicitor did not accept the proposal, the letter would be tendered on an application for indemnity costs against the plaintiff "over our client's application".
This letter really only comes into play in respect of the costs on the defendants' notice of motion although it purports to be relevant to the plaintiff's notice of motion.
Importantly, the letter observes the following on page 2:
"Since the COVID pandemic AVL is a common way for witnesses to give evidence and most judges are accustomed to such practices and have conducted cases even when credit is an important issue."
That statement cannot be argued with and it is indeed my attitude in respect of both of these notices of motion. Unfortunately what it underpins is a somewhat contrary approach to the questions for determination on the notices of motion filed in Court. I am not satisfied the letter does anything much other than make it clear that there is an understanding on the part of the solicitor for the second and third defendants that evidence by audio visual link is not necessarily problematic and does not cause unfairness to a party if an order is granted for evidence to be given that way.
I am not persuaded that costs in respect of both of the notices of motion need to be dealt with at the same time despite the context of this letter. I take the view that the plaintiff has succeeded and so should have her costs of her notice of motion filed on 10 May 2024.
Accordingly, I order that the second and third defendants pay the plaintiff's costs of the notice of motion.
[2]
Orders
I make the following orders:
1. Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the Court grants leave for the plaintiff's expert witness, Songwei Li, and lay witness, Enpeng Zhang, to give evidence to the Court by audio-visual link at the trial commencing on 17 June 2024.
2. The second and third defendants pay the plaintiff's costs of the notice of motion.
3. In respect of the witnesses named in order 1, the plaintiff is to ensure that, at the time a witness gives her or his evidence, no one else will be present in the hearing room save for an independent person whose presence is necessary to assist or deal with any technical or administrative issues whose names and details must be communicated to the second and third defendants' solicitors in writing not later than seven days before the commencement of the hearing.
4. The plaintiff is to arrange for a technically adequate platform, including the availability of a screen for documents to be shown to any witness, as well as a physical court book in the same form as that provided to the Court.
5. The plaintiff is to bear the costs of the establishment of the platform and the making of all administrative arrangements for the taking of the evidence, those costs to become costs in the cause unless the Court otherwise orders.
[3]
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Decision last updated: 30 May 2024