//
[2026] VSC 21
General information, not legal advice.
Supreme Court of Victoria
2026-02-02
Attiwill J
Original judgment source is linked above.
EVIDENCE - Evidence sought to be given by audio-visual link by the first defendant from China - First defendant is a resident in China and is subject to an order of a Chinese court preventing him from leaving China - First defendant unable to travel to Australia to give evidence - Whether giving evidence by audio-visual link by the first defendant from China would be a contravention of article 294 of the Civil Procedure Law of the People's Republic of China (amended 2023) - Held it would be a contravention.
PRACTICE AND PROCEDURE - Application to send a letter of request to judicial authorities in China to enable audio-visual evidence to be given by the first defendant in China - Rule 41.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2025, s 9B of the Evidence (Miscellaneous Provisions) Act 1958, Article 294 of the Civil Procedure Law of the People's Republic of China (amended 2023) and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters - Held application granted.
1 This proceeding is set down for a trial commencing on 4 February 2026. The first defendant, Mr Qin, is a Chinese resident and the subject of an order made by a court in the People's Republic of China (China) that prohibits him from leaving China. The order was obtained by a company controlled by the plaintiff, Mr Ma. Mr Qin wishes to give evidence in this proceeding. Mr Ma wishes to cross-examine Mr Qin. Mr Qin is willing to give evidence in person. But Mr Ma has informed the Court that he will not take steps to cause the company to vacate or amend the order to allow Mr Qin to attend the trial in person. As a result, Mr Qin cannot give evidence in person in Australia.
2 Mr Qin is prepared to give evidence by audio-visual link (AVL) from China if this would not contravene Article 294 of the Civil Procedure Law of the People's Republic of China (amended 2023) (the Chinese Civil Procedure Law). But the defendants submitted that it would contravene this Article. As a result, the defendants have applied for an order for this Court to commence steps under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Convention) by sending a letter of request to the judicial authorities in China to enable Mr Qin to give evidence by AVL from China, or alternatively, to be examined by the judicial authorities in China. This is the only application before the Court.
3 The parties agree that if the Court determines that it would contravene the Chinese Civil Procedure Law for Mr Qin to give evidence by AVL from China then the defendants' application should be granted and the trial adjourned. Mr Ma abandoned his previous position that even if the Court determines that it would contravene Chinese Civil Procedure Law for Mr Qin to give evidence by AVL, then the defendants' application should be refused given delay, potential prejudice to him and the administration of justice, and the futility of making a request under the Convention.
(a) it would contravene Article 294 of the Chinese Civil Procedure Law for Mr Qin to give evidence by AVL from China; and
(b) it is in the interests of justice to make an order pursuant to s 9B of the Evidence (Miscellaneous Provisions) Act 1958 and r 41.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (the Rules) for the issue of a letter of request under the Convention to the judicial authorities of China to take, or to cause to be taken, the evidence of Mr Qin and for the trial to be adjourned.
5 The parties will also be directed to confer and report to the Court forthwith on the following two alternate processes that the Court raised with the parties during the hearing. First, whether Mr Qin can obtain a permit to travel to Hong Kong to give evidence by AVL and the timing of that process. The parties submitted at the hearing that they doubt that this can occur. Second, whether the defendants can separately directly apply to the 'relevant administrative authorities' identified in Article 294 of the Chinese Civil Procedure Law to obtain consent for the examination of Mr Qin by AVL.[1]
6 By a summons filed 24 December 2025, the defendants seek orders in the following terms:
7 The parties agree that the draft letter of request should be amended, if it is to be sent, to include an alternative process where Mr Qin would be examined by the judicial authorities in China pursuant to a detailed set of questions to be settled by the parties, and the record of that examination provided to this Court.
8 On 11 April 2025, the Court set this proceeding down for trial.
9 Mr Ma makes various allegations and claims concerning payments made by him in an alleged joint venture. Mr Ma and Mr Qin have differing accounts of certain meetings, concerning discussions and agreements. The assessment of the credit of Mr Ma and Mr Qin will be important at the trial.
10 Mr Qin is currently in China. Mr Qin wishes to give evidence and Mr Ma wishes to cross-examine him. Based on the parties' estimates in the updated trial plan, Mr Qin is expected to give evidence over at least two days.
11 On 12 November 2025, the Shanyang District People's Court of Jiaozuo City, China, made an order extending an existing order that restricts Mr Qin from leaving China (Chinese travel ban order). The Chinese travel ban order is in force until 11 November 2026. Mr Qin cannot attend the trial of this proceeding in person. Similar orders have been in place, including a recently expired order that commenced on 10 December 2024 and ended on 9 December 2025. The Chinese travel ban order relates to an unsatisfied judgment debt which is owed by Mr Qin as a guarantor of a loan obtained by a Chinese company, Jiaozuo QuickForm Industrial Co., Ltd. Jiaozuo Zhonglv Bank Co., Ltd subsequently transferred its creditor's rights to Zhongyu Network Technology Co., Ltd. At the hearing on 24 December 2025, Mr Ma accepted that he controls Zhongyu Network Technology Co., Ltd, which is the company that applied for the Chinese travel ban order.
12 In late November 2025, the defendants' solicitors began to prepare an application for Mr Qin to give evidence by AVL. The defendants' solicitors requested documents verifying that Mr Qin was prohibited from leaving China while preparing this application.
13 On 2 December 2025, Mr Bettridge, of the defendants' solicitors, informed Mr Ma's solicitors that they would apply for Mr Qin to give evidence by AVL. Mr Bettridge understood that Mr Qin was likely to be prohibited from leaving China at the time of the trial, but he was not aware of any prohibition on giving evidence by AVL from China.
14 Between 12 and 16 December 2025, Mr Qin became aware that the Chinese travel ban order was in place. He then received a copy of the Chinese travel ban order on 18 December 2025, and provided it to the defendants' solicitors on the same day. Mr Bettridge gave evidence that he and Mr Qin were not aware of the Chinese travel ban order until this point in mid-December. In fact, Mr Qin was in the process of applying for a visa to travel to Australia to give evidence in the trial when he learnt that the Chinese travel ban order was in place.
15 On 19 December 2025, the defendants' solicitors informed Mr Ma's solicitors that the current application would be made, and sought Mr Ma's consent to the orders. No consent was given, and on 23 December 2025, the defendants sought an urgent hearing of the application.
16 On 24 December 2025, the application was called on for mention, and the Court made orders for the filing of further material and the hearing of this application. During the mention hearing, the defendants submitted that it was possible for Mr Ma, as the controller of a company that applied for the Chinese travel ban order, to request that Mr Qin be given an exemption from the ban to attend the trial. Mr Ma submitted that he was not agreeable to seeking the removal of, or an exemption from, the 2025 travel ban.
AN AUDIO-LINK EXAMINATION OF MR QIN WILL CONTRAVENE ARTICLE 294 OF THE CHINESE CIVIL PROCEDURE LAW UNLESS IT IS APPROVED OR CONSENTED TO UNDER ARTICLE 294
17 It is convenient to set out the translated version of Article 294 of the Chinese Civil Procedure Law:
Request for and provision of judicial assistance shall be carried out via the channels stipulated in the international treaty concluded or participated by the People's Republic of China; where there is no treaty relations, request for and provision of judicial assistance shall be carried out via diplomatic channels. An embassy or consulate of a foreign country based in the People's Republic of China may serve documents on a citizen of the foreign country and carry out investigation and collection of evidence, but shall not violate the laws of the People's Republic of China and shall not adopt mandatory measures.
Except for the circumstances stipulated in the preceding paragraph, no foreign agency or individual shall carry out service of documents, investigation and collection of evidence in the People's Republic of China without the consent by the relevant administrative authorities of the People's Republic of China.
18 This appears in an English version of the Chinese Civil Procedure Law provided by the plaintiff. It was provided to them by lawyers in China. The parties made submissions on this version. There was no issue between them that this version was the correct English translation of the Chinese Civil Procedure Law. There are minor differences in the translated English text of Article 294 in this version and the text relied upon by Professor Godwin. For example, the English text relied upon by Mr Ma refers to 'collection of evidence in the People's Republic of China' and the English text provided by Professor Godwin refers to 'collect evidence from its citizens'. But no party relied upon any of these differences as being material.
19 The relevant Chinese law was the subject of expert evidence.
20 Professor Andrew Godwin gave evidence on behalf of the defendants and was cross-examined. Professor Godwin is a professor of the Melbourne Law School, and among the roles he holds at that institution, Professor Godwin is the Associate Director (Asian Commercial Law) of the Melbourne Law School's Asian Law Centre. Professor Godwin was formerly a partner of an international law firm in Shanghai, China. He speaks Mandarin, has held academic positions at Chinese universities, and is the author of a large number of academic works on Chinese law. He has also prepared expert evidence on foreign law in proceedings in a number of Australian courts. Professor Godwin agreed that for the purpose of his reports, his area of specialised knowledge based on his professional experience and academic study is Chinese law. He accepted that he has not been research active in Chinese civil procedure law. He said one of his areas of academic expertise is the regulation of the legal profession in China. Professor Godwin has also been research active and published on Chinese laws concerning property, bankruptcy, company law (including director duties), financial regulation, administration enforcement of insider trading, and on the China International Commercial Court. Professor Godwin agreed that he has not practiced Chinese law.
21 In his first report, Professor Godwin begins by noting that Articles 293 and 294 of the Chinese Civil Procedure Law are relevant to the issues in dispute. The relevant parts of his opinion are below:
(i) in accordance with international treaties concluded or acceded to by the PRC; or
(ii) in the absence of treaty relations between the PRC and the foreign country in which the proceedings are taking place, through diplomatic channels.
- In relation to the circumstance outlined in sub-paragraph (i) of paragraph 3 above, I note that both the PRC and Australia are signatories to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (the 'Hague Evidence Convention'). The Hague Evidence Convention provides a basis on which evidence may be taken in signatory countries through the transmission and execution of Letters of Request or through diplomatic channels.
- The Permanent Bureau of the Hague Conference on Private International Law has published a document concerning the taking of evidence by video-link under the Hague Evidence Convention. The document was prepared for a Special Commission meeting on the practical operation of the Hague Evidence Convention in February 2009 and states that it was 'designed to prepare and assist these discussions, in particular as regards the legal bases for the taking of evidence by video-links under the Evidence Convention and possible future work that may be undertaken by the Permanent Bureau in this field.' The PRC does not appear to have expressed any position in relation to the taking of evidence by video-link under the Hague Evidence Convention.
- It is my view that, under Article 294, the taking of evidence by live audio-visual link (including by being cross-examined) from a China-based witness without the consent of a competent Chinese authority, and other than in the two circumstances outlined in paragraph 3 above, would be in contravention of Article 294 of the PRC Civil Procedure Law. For this purpose, a China-based witness would include both a Chinese citizen (i.e. Chinese national) and a foreign citizen (i.e. foreign national), except in the circumstances outlined in paragraphs 9 - 14 below.
- A literal interpretation of Article 294 suggests that the contravening party would be the 'foreign authority or individual' (including the foreign court) that collected the evidence and not the Chinese-based witnesses who gave the evidence.
- Any order or judgment made by a foreign court that was based on evidence taken in contravention of Article 294 would likely result in a refusal by Chinese courts to recognise and enforce the order or judgment. ...
22 Professor Godwin accepted that the English word 'litigant' best reflects the position of a person who is a party to the Chinese proceeding. But the translation of Professor Tan's report uses the word 'party' as does Professor Godwin. But it is accepted that the word 'litigant' in the Chinese Civil Procedure Law means 'party'.
23 The balance of Professor Godwin's first report expresses views on the possibility of an Australian court taking evidence from Australian citizens (but not Chinese citizens) through the Australian Embassy or consulates in China.
24 It is convenient to address some of the important evidence of Professor Godwin in cross-examination.
25 Professor Godwin was cross-examined on Articles 70, 78 and Article 294:
(a) Professor Godwin accepted that identical Chinese characters are used in Article 70 (appearing in the English text as 'investigate into and gather evidence') and in Article 294 (appearing in the English text as 'investigation and collection of evidence');
(b) Professor Godwin gave evidence that Article 70 does not expressly make a distinction between witnesses and parties;
(c) Professor Godwin said that he cannot express a view, without giving the matter further thought, that Article 70 is directed to the collection of evidence from non-party witnesses. Professor Godwin said that the issue put to him is premised on the basis that litigants do not have an obligation to provide statements in any circumstances and that there may be other provisions that are applicable or relevant to this issue;
(d) Professor Godwin accepted that if Article 70 is directed to the collection of evidence from non-party witnesses then this would provide a cogent basis in interpreting Articles 293 and 294 in the way described by Professor Tan. But he did not identify or explain why it would provide a cogent basis.
26 Professor Godwin was cross-examined on Article 67 and Article 294:
(a) Professor Godwin gave evidence that different Chinese characters are used in Article 67 (appearing in the English text as 'examine and verify evidence') and in Article 294 (appearing in the English text as 'investigation and collection of evidence'). He did not accept that they were similar;
(b) Professor Godwin accepted that the Chinese characters used in Article 67 (appearing in the English text as 'examine and verify evidence') concern a process of obtaining evidence from persons other than litigants;
(c) It was never put to Professor Godwin that Article 67 assists in construing the meaning of Article 294.
27 Professor Godwin was also cross-examined on his opinion that a contravention of Article 294 would likely result in a Chinese court refusing to recognise and enforce the judgment of this Court. He accepted that to his knowledge no court in mainland China has recognised and enforced a judgment of an Australian court, including this Court, but that he had not investigated that in any detail.
28 Professor Qiugui Tan gave evidence on behalf of Mr Ma. Professor Tan is a professor of China University of Political Science and Law, in Beijing. Among other roles, he is the executive director of the Civil Procedure Law Research Association of the Chinese Law Society. He has authored a number of publications on Chinese civil procedure, and has taught civil procedure at the China University of Political Science and Law for more than 20 years. Professor Tan's evidence was prepared in Mandarin and then translated into English by a certified translator.
29 In his first report, Professor Tan states that Mr Qin's participation in the trial 'is in his capacity as a party, not as a witness', and that '[u]nder Chinese law, different norms apply to the appearance of parties and the appearance of witnesses in a hearing'. Professor Tan then refers to a number of provisions of the Chinese Civil Procedure Law which govern the giving of evidence, including by AVL. He also states:
30 Professor Tan then addresses articles 293 and 294 of the Chinese Civil Procedure Law:
31 Professor Tan then extracts a number of provisions[2] in the Chinese Civil Procedure Law that, in his opinion, demonstrate that Chinese law makes 'different provisions for the procedural rights and obligations of parties and witnesses'. He concludes:
32 Professor Godwin prepared a supplementary report in response to the first report of Professor Tan. In the supplementary report, Professor Godwin states that paragraph 3 of Article 294 of the Chinese Civil Procedure Law 'does not draw any distinction based on whether evidence is collected from parties or from non-parties, whether the evidence collected was provided voluntarily or otherwise, or whether the foreign court was exercising compulsory powers in collecting evidence'. He further states that, unlike Professor Tan, he is not 'aware of any "norms" that would require a distinction to be drawn between a party and a witness for the purpose of interpreting paragraph 3 of Article 294'. He states that Mr Qin's participation in the trial by AVL would constitute the 'investigation and collection of evidence' within the prohibition of Article 294, and that other parts of the Chinese Civil Procedure Law referred to by Professor Tan are irrelevant to the present question of the ability of this Court to take Mr Qin's evidence.
33 Despite Professor Tan providing a further supplementary report he did not respond to any matters raised in Professor Godwin's second report. The further supplementary report was confined to the probable outcome of a letter of request sent under the Convention.
34 The defendants submitted that an examination of Mr Qin by AVL will contravene Article 294 of the Chinese Civil Procedure Law and relied upon the evidence of Professor Godwin. Mr Ma submitted that an examination of Mr Qin by AVL will not contravene Article 294 of the Chinese Civil Procedure Law and relied upon the evidence of Professor Tan and the cross-examination of Professor Godwin.
35 Australian courts have increasingly faced questions involving the examination of a person in China by AVL.[3] But the present application appears to be the first instance of a court being required to resolve competing expert evidence on whether the examination of a person in China by AVL will contravene Chinese law.
36 In Neilson v Overseas Projects Corporation of Victoria Ltd, Gummow and Hayne JJ observed that:
[t]he courts of Australia are not presumed to have any knowledge of foreign law. Decisions about the content of foreign law create no precedent. That is why foreign law is a question of fact to be proved by expert evidence. And it is why care must be exercised in using material produced by expert witnesses about foreign law. In particular, an English translation of the text of foreign written law is not necessarily to be construed as if it were an Australian statute. Not only is there the difficulty presented by translation of the original text, different rules of construction may be used in that jurisdiction.[4]
37 In summary, I find that conducting an examination of Mr Qin by AVL will contravene Article 294 of the Chinese Civil Procedure Law unless it is conducted as the result of:
(a) obtaining judicial assistance pursuant to a successful request under the Convention; or
(b) the consent of the relevant administrative authorities in China.
38 First, Professor Tan and Professor Godwin did not identify any specific rules of statutory construction that are used in China.
39 Second, Professor Tan is an eminently qualified expert in Chinese civil procedure law. I accept that Professor Godwin does not have any particular expertise in Chinese civil procedure law but is, as submitted by Mr Ma, more of a 'generalist expert in Chinese law'. I also accept Mr Ma's submissions that this provides a 'clear reason to give greater weight to Professor Tan's opinions than to Professor Godwin's'. But Professor Tan's opinions are characterised by assertion, ambiguity, and do not adequately identify and explain the basis for his opinions. Mr Ma sought to address this, in part, by cross-examining Professor Godwin on matters that were not the subject of Professor Tan's evidence. As acknowledged by Mr Ma's counsel when the Court raised that Professor Tan did not address these matters:
Professor Tan didn't express that in those terms, and that's why I took Professor Godwin to those provisions, to endeavour to bring that to the surface.
(emphasis added)
40 But the cross-examination of Professor Godwin did not bring these matters to the surface and support Professor Tan's opinion. Professor Godwin's opinion was primarily based on the text of Article 294. The basis for his opinion was clearly identified and explained. As a result, I prefer the evidence of Professor Godwin.
41 Third, I accept Professor Godwin's evidence that Article 294 does not make any express distinction between the collection of evidence from a person who is a party and from a person who is not a party. It refers to 'collection of evidence'.
42 Fourth, the gist of Professor Tan's opinion is that Mr Qin's appearance in this proceeding is not for the 'purpose' of giving evidence but for the purpose of maintaining and protecting his own procedural and substantive rights and interests and, as a result, does not involve the 'collection of evidence' within the meaning of Articles 294. The basis for this was not adequately explained. I make the following observations:
(a) Professor Tan explicitly accepts that 'pure witnesses' are 'subject to the constraints of Articles 293 and 294'. The implication by Professor Tan is that it is only because Mr Qin is a party that Article 294 does not apply. As a result, he accepts an examination of a person (who is not a party) by AVL by a foreign court involves the 'collection of evidence' from that person within the meaning of Article 294;
(b) Professor Tan's construction thus depends upon an implication that Article 294 is relevantly confined to persons who are not a party to the proceeding in question. Mr Ma accepted that Professor Tan's construction depended on such an implication. But the basis for this implication is not adequately identified or explained by Professor Tan;
(c) Professor Godwin observed that Article 294 refers to the word 'evidence' and the word 'evidence' is defined in Article 66 to include 'statements of litigants';
(d) Professor Tan does not explain why provisions that expressly make distinctions between a party and a witness in the Chinese Civil Procedure Law are relevant to the interpretation of Article 294, which does not expressly do so;
(e) Professor Tan states that Article 294 does not apply as under Chinese law evidence is not collected from a party, but only from a witness. Professor Tan states that this is because Mr Qin's participation in the hearing is 'not for the purpose of giving evidence' but to maintain and protect his rights. But he did not explain the basis for this. He did not identify precisely why the purpose of a party's involvement in a proceeding means that if they give evidence in a proceeding this does not involve the 'collection of evidence' from them within the meaning of Article 294, whereas if it is given by a non-party it does involve the 'collection of evidence' from them within the meaning of Article 294; and
(f) Professor Tan did not identify any fundamental reason why there would be a restriction under Article 294 on the collection of evidence from a person who is not a party by a foreign court but not on the collection of evidence from a party.
43 Fifth, I refer to Professor Godwin's evidence and Mr Ma's submissions concerning Articles 70, 78 and Article 294. I am not satisfied that Article 70 is limited to non-party witnesses. As I have said, if it is, Professor Godwin accepted that this would provide a cogent basis in interpreting Articles 293 and 294 in the way described by Professor Tan. But Professor Godwin's acceptance was contingent on 'the basis that litigants do not have an obligation to provide statements in any circumstances', for which Professor Godwin stated that 'there may be other provisions that are applicable or relevant to this issue' and as such 'he cannot express a view, without giving the matter further thought'. Mr Ma relied upon Article 70 expressly providing that, inter alia, a person cannot refuse the People's Court's right to investigate and to gather evidence. Mr Ma submitted that this does not apply to parties as Article 78 provides that a party may refuse to provide a statement. Critically, Mr Ma sought to rely upon the particular use of the same Chinese characters in Article 70 and Article 294.
44 I do not accept Mr Ma's submission that Article 70 only applies to non-parties. Professor Godwin did not accept that Article 70 implicitly makes a distinction between investigating and gathering evidence from individuals who are parties and those that are not parties. Article 70 does not make any express distinction between investigating and gathering evidence from individuals who are parties and those that are not parties. Professor Tan did not express an opinion on this matter. Importantly, Professor Tan did not refer to Article 70 or to the effect of the use of identical Chinese characters in Articles 70 and Article 294. This is despite Professor Tan providing a supplementary report. It addressed the process under the Convention.
45 Mr Ma's submission on this issue also wholly depends upon a party having the right to refuse a request to provide a statement. I make the following observations:
(a) Professor Godwin did not accept that Article 78 provides that a party may refuse to provide a statement and that he would have to give the matter further thought;
(b) Professor Tan did not express any opinion on whether a party has the right to refuse a request to provide a statement. Professor Tan referred to Article 78 but did not express any opinion on whether a party can refuse to provide a statement; and
(c) Article 78 provides for the consequences where there has, in fact, been a refusal. It does not provide, as submitted Mr Ma, that a party 'may' refuse to provide a statement. The consequence of a refusal to provide a statement is that the refusal has no impact on the People's Court's ascertainment of the facts of the case based upon evidence.
46 In addition, even if Article 70 is directed to the collection of evidence from non-party witnesses, Professor Godwin did not identify or explain why this would provide a cogent basis for interpreting Articles 293 and 294 in the way described by Professor Tan.
47 Sixth, I refer to Professor Godwin's evidence and Mr Ma's submissions concerning Article 67 and Article 294. Professor Godwin gave evidence that different Chinese characters are used in Article 67 (appearing in the English text as 'examine and verify evidence') and in Article 294 (appearing in the English text as 'investigation and collection of evidence'). He did not accept that they were similar. Professor Godwin did not state that Article 67 assists in construing the meaning of Article 294. Professor Tan did not opine on this matter. Importantly, Professor Tan did not refer to Article 67 or on the effect on the use of the Chinese characters in Articles 67 and Article 294. This is despite Professor Tan providing a supplementary report. As I have already said, it addressed the process under the Convention.
THE COURT WILL GRANT AN ORDER FOR THE SENDING OF A LETTER TO THE JUDICIAL AUTHORITIES OF CHINA AND ADJOURN THE TRIAL
48 I have found that an AVL examination of Mr Qin will contravene Article 294 of the Chinese Civil Procedure Law without approval or consent under Article 294. Mr Qin is not prepared to give evidence by AVL if this would contravene the Chinese Civil Procedure Law. The parties also accepted that the Court should not proceed to take evidence by AVL in circumstances where that would contravene the Chinese Civil Procedure Law.
49 The issue that arises is whether it is in the interests of justice for the Court to make an order pursuant to s 9B of the Evidence (Miscellaneous Provisions) Act and r 41.01(1)(b) of the Rules for the issue of a letter of request to the judicial authorities of China to take, or to cause to be taken, the evidence of Mr Qin under the Convention. The parties also agree that in the absence of the Court taking evidence by AVL then a letter of request should be sent under the Convention and the trial adjourned. But the Court has a discretion and it must be exercised judicially. As a result, it is still necessary to consider and determine this issue.
50 I refer to the following articles of the Convention:
CHAPTER I - LETTERS OF REQUEST
Article 1
In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act. A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated. The expression "other judicial act" does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced, or orders for provisional or protective measures.
Article 2
A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. Each State shall organise the Central Authority in accordance with its own law. Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State.
...
Article 8
A Contracting State may declare that members of the judicial personnel of the requesting authority of another Contracting State may be present at the execution of a Letter of Request. Prior authorisation by the competent authority designated by the declaring State may be required.
Article 9
The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties. A Letter of Request shall be executed expeditiously.
...
CHAPTER II - TAKING OF EVIDENCE BY DIPLOMATIC OFFICERS, CONSULAR AGENTS AND COMMISSIONERS
...
Article 15
In a civil or commercial matter, a diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting State and within the area where he exercises his functions, take the evidence without compulsion of nationals of a State which he represents in aid of proceedings commenced in the courts of a State which he represents. A Contracting State may declare that evidence may be taken by a diplomatic officer or consular agent only if permission to that effect is given upon application made by him or on his behalf to the appropriate authority designated by the declaring State.
51 Australia and China are parties to the Convention.
52 The defendants seek an order pursuant to r 41.01. This provides:
(1) The Court, for the purpose of any proceeding, may make an order for -
(a) the examination of any person before a judicial officer or such other person as the Court appoints as examiner at any place whether within or out of Victoria; or
(b) the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.
(2) An order under paragraph (1)(a) shall be in Form 41A or 41B, as the case requires.
(3) An order under paragraph (1)(b) shall be in Form 41C.
53 The Court has a discretion whether to make an order under r 41.01(1)(b). It must be exercised judicially.
54 Rules 41.13 to 41.15 of the Rules are also relevant and provide:
(1) Where an order is made under Rule 41.01(1)(b) for the sending of a letter of request, the party obtaining the order (in this Order called the applicant) shall, when the letter of request has been signed -
(a) lodge with the Prothonotary -
(i) the letter of request;
(ii) any interrogatories and cross interrogatories to accompany the letter of request; and
(iii) a translation of each of the documents referred to in subparagraphs (i) and (ii) in accordance with Rule 41.14 or as the Court so orders;
(i) a copy of each of the documents referred to in paragraph (a); and
(ii) an undertaking in accordance with Rule 41.15; and
(c) unless the Court otherwise orders, serve a copy of each of the documents referred to in paragraph (a) on all other parties.
(2) A letter of request shall be in Form 41D.
41.14 Translation
A translation of a document lodged under Rule 41.13 shall -
(a) be a translation into an official language of the country to whose judicial authorities the letter of request is to be sent; and
(b) bear a certificate of the translator, in that language, stating that it is an accurate translation of the document.
(1) An undertaking filed under Rule 41.13 shall consist of an undertaking by the solicitor for the applicant or, where there is no solicitor, by the applicant, to pay to the Prothonotary an amount equal to the expenses incurred in consequence of the letter of request.
(2) The Prothonotary may require the applicant or the applicant's solicitor to give security to the Prothonotary's satisfaction for the expenses referred to in paragraph (1).
55 Section 9B is also relevant. It provides, inter alia, certain matters that the Court must consider in determining whether it is in the interests of justice to make an order for the issue of a letter of request to the judicial authorities of a foreign country to take, or to cause to be taken, the evidence of the person. Section 9B provides:
(1) In any civil or criminal proceeding before a superior court, the court may, in its discretion and where it appears in the interests of justice to do so, on the application of a party to the proceeding, make, in relation to a person outside Australia, an order -
(a) for the examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or
(b) for the issue of a commission for the examination of the person on oath or affirmation at any place outside Australia; or
(c) for the issue of a letter of request to the judicial authorities of a foreign country to take, or to cause to be taken, the evidence of the person.
(2) **In determining whether it is in the interests of justice to make an order under subsection (1) in relation to the taking of evidence of a person, the matters to which the court must have regard include the following - **
(a) whether the person is willing or able to come to Victoria to give evidence in the proceeding;
(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding;
(c) whether, having regard to the interests of other parties to the proceeding, justice will be better served by granting or refusing the order.
(3) If a court makes an order under subsection (1) of the kind referred to in subsection (1)(a) or (b), the court, in its discretion, at the time of the making of the order or at a subsequent time, may give such directions as it thinks just relating to the procedure to be followed in and in relation to the examination, including directions as to the time, place and manner of the examination, and to any other matter that the court thinks relevant.
(4) If a court makes, in relation to a proceeding, an order under subsection (1) of the kind referred to in subsection (1)(c) in relation to the taking of evidence of a person, the court may, in its discretion, include in the order a request as to any matter relating to the taking of that evidence, including any of the following matters -
(a) the examination, cross-examination or re-examination of the person, whether the evidence of the person is given orally, upon affidavit or otherwise;
(b) the attendance of the legal representative of each party to the proceeding and the participation of those persons in the examination in appropriate circumstances;
(5) Subject to subsection (6), the court may, on such terms, if any, as it thinks fit, permit a party to the proceeding to tender as evidence in the proceeding the evidence of a person taken in any examination held as a result of an order made under subsection (1) or a record of that evidence.
(6) Evidence of a person so tendered is not admissible if -
(a) it appears to the satisfaction of the court at the hearing of the proceeding that the person is in Victoria and is able to attend the hearing; or
(b) the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.
(7) If it is in the interests of justice to do so, the court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made under subsection (1), whether or not it is otherwise admissible.
(8) In this section, a reference to evidence taken in an examination includes a reference to -
(a) a document produced at the examination; and
(b) answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination.
Sections 7 to 9 of the Civil Procedure Act 2010
56 The Court must seek to give effect to the overarching purpose set out in the Civil Procedure Act for the just, efficient, timely and cost-effective resolution of the real issues in dispute (ss 7 and 8) in exercising its discretion, and have regard to the objects in s 9. The objects include , but not are limited to, the just determination of the civil proceeding, the efficient conduct of the business of the court, minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for the fair and just determination of the real issues in dispute and the preparation of the case for trial and the timely determination of the civil proceeding.
57 In his supplementary report, Professor Tan states that where a letter of request is issued to the Chinese government pursuant to the Convention, 'the questioning of that witness by a Chinese court shall be conducted in accordance with the provisions of Chinese law.' He continues:
58 Professor Tan then repeats his opinion that there is a distinction between the ability of parties and witnesses to give evidence, and refers to Articles 270 and 271 of the Chinese Civil Procedure Law. Finally, he refers to online guidance published by the Ministry of Justice of the People's Republic of China and states:
An extract from the original text of "Frequently Asked Questions on International Civil and Commercial Judicial Assistance" (Official Website of the Ministry of Justice of the People's Republic of China, 21 March 2025) is as follows:
"6. Can foreign judicial authorities or individuals directly question (including through technological means such as telephone or video) witnesses located within the territory of China?
Answer: No. When acceding to the Hague Evidence Convention, China made reservations to all of Chapter II except for Article 15, and does not permit foreign judicial authorities to directly take evidence from witnesses located within the territory of China. Relevant foreign institutions should submit requests for the taking of evidence to the Ministry of Justice through the channels prescribed by treaties, or to the Ministry of Foreign Affairs through diplomatic channels. After the request has been examined and approved, it shall be executed by a people's court.
8. Can parties within the territory of China, of their own volition, directly submit evidentiary materials located within the territory to foreign judicial authorities or judicial personnel?
Answer: If relevant materials located within the territory need to leave the country, they must comply with the relevant provisions of Civil Procedure Law, Data Security Law, and Personal Information Protection Law."
59 Professor Godwin did not prepare a report in response to the supplementary report of Professor Tan. In cross-examination Professor Godwin did state that he considers it more likely that the judicial assistance provided under Article 294 would be the adoption of the special method proposed in the present draft of the letter of request (ie an examination by AVL conducted by this Court) rather than a Chinese court conducting its own examination.
60 It is in the interests of justice to make an order pursuant to s 9B of the Evidence (Miscellaneous Provisions) Act and r 41.01(1)(b) of the Rules for the issue of a letter of request to the judicial authorities of China to take, or to cause to be taken, the evidence of Mr Qin under the Convention. I will exercise my discretion to make an order that a letter of request be sent.
61 First, Mr Qin is willing to give evidence in this proceeding.[5]
62 Second, Mr Qin is not able to come to Victoria to give evidence in this proceeding.[6]
63 Third, Mr Qin will be able to give evidence that is material to issues to be tried in this proceeding.[7]
64 Fourth, the conduct of an examination of Mr Qin by AVL will contravene Article 294 of the Chinese Civil Procedure Law. The contravention would be by this Court. In these circumstances, Mr Qin is not prepared to give evidence by AVL and the parties agree that a letter of request should be sent under the Convention.
65 Fifth, the sending of the letter of request will result in the adjournment of the trial. The process under the Convention may take 6 to 12 months and the parties submitted that it would be prejudicial for the trial to be commenced and then be adjourned. I agree. Mr Ma would not know the precise case he must meet. In addition, if the trial commenced and was then adjourned part heard there may be a substantial gap between the evidence of witnesses on issues of credit. But an adjournment of the whole trial is, to say the least, very unfortunate. Mr Ma does not contend now that he will be prejudiced. In the event that steps were taken earlier there was a possibility that the issue may have been resolved and the trial could have proceeded. Alternatively, a further proceeding could have been listed.
66 Sixth, the letter of request should be further revised to include an alternative to the present proposed special method, being an examination of Mr Qin by Chinese judicial authorities.
67 Finally, taking into account the interests of Mr Ma, justice will be better served by granting the application.[8] As I have also already said, Mr Ma agrees that in the absence of the Court taking evidence by AVL then a letter of request should be sent under the Convention and the trial adjourned.
68 The Court will make an order pursuant to s 9B of the Evidence (Miscellaneous Provisions) Act and r 41.01(1)(b) of the Rules, but will give the parties an opportunity to further confer on its terms. The trial will be adjourned. The Court will hear from the parties on the precise form of orders. The Court also wishes to make orders for conferral on the alternative steps that have been identified in this ruling and report on those matters to the Court. These may result in the trial being re-fixed at an earlier time.
[1] See Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521, [32]-[38] (Stewart J).
[2] Articles 52, 75, 76, 77 and 78 of the Chinese Civil Procedure Law.
[3] See Melco Resorts (Macau) Ltd v Wu (No 3) [2025] VSC 725; Aollande Pty Ltd v He [2024] VSC 736; Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986; Liu v Option Funds Management Limited [2022] FCA 444; Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539; Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153; (2020) 147 ACSR 521.
[4] (2005) 223 CLR 331, 370 (citations omitted).
[7] Ibid s 9B(2)(b).
[8] Ibid s 9B(2)(c).
Ma
Qin [2026] VSC 21
(2005) 223 CLR 331