Plaintiffs v Defendants

Retrial Civil Judgement in the Private Lending Dispute between Xinxiang Jingshun Textile Co., Ltd. and Xinxiang Textile Chemical Fiber Raw Materials Co., Ltd.

1. Below those words is the heading, 'Henan Province Xinxiang Intermediate People's Court Civil Judgement', followed by what appears to be a proceeding reference number.
2. The certified translation of the judgment comprises nine pages. Towards the foot of the eighth page the following statement appears:

Pursuant to Articles 112, 170(1)(2), and 207 of the Civil Procedure Law of the People's Republic of China, the judgement is as follows:

1. The Civil Mediation Statement (2015) Xinzhong Minjin Chuzi No. 157 issued by this Court is hereby revoked.
2. The litigation claims of Xinxiang Jingshun Textile Co., Ltd. are dismissed.

1. On the ninth and final page of the judgment appears a statement that if any party disagrees with the judgment, an appeal may be filed within 15 days to the Henan Provincial High People's Court. Below that statement is the name of the presiding judge together with the names of two other judges and the date, 29 November 2019.
2. The second document the plaintiffs seek to rely on is what purports to be a company search document relating to Chinese companies with which the witnesses, Ms Zang and Mr Zhao, are alleged to have an association or involvement. The documents were obtained by Mr Zhang from a website maintained by a Chinese company or business called 'TianYanCha'.
3. The company search document sought to be tendered comprises six pages of English text beginning with the words 'Zhongyuan Bank Co., Ltd', followed by a 'screenshot timestamp' of 7 November 2025 at 13:29. The words 'historical major shareholders', 'shareholder type', 'shareholding percentage' and 'search' then appear, followed by some information that relates to 19 different Chinese companies. The format of the document is to name or describe each company, followed by the shareholder type, corporate shareholders, subscribed capital contribution, initial shareholding date and other information.
4. At the foot of the last page of the company search document the text 'TianYanCha.com' appears, together with a QR code, apparently containing a link to that company or business in China.
5. After hearing submissions and considering the objections, I informed the parties that I would not permit either document to be adduced into evidence. I said that I would deliver my reasons in due course. These are those reasons.

1. To understand the parties' submissions, it is necessary first to refer to relevant provisions of the Evidence Act 2008 (Vic) ('Act'):
2. Section 56 of the Act provides that only relevant evidence is admissible. Evidence which is relevant pursuant to s 55 is evidence that:

if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

1. Pursuant to s 59 of the Act, hearsay evidence is not admissible:

59 The Hearsay rule - exclusion of hearsay evidence

(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

1. One exception to the hearsay rule, the 'business records' exception, appears in s 69:

69 Exception - business records

(1) This section applies to a document that -

(a) either -

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made -

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

1. Sections 91 and 92 of the Act address how evidence of previous judgments and convictions can be used:

91 Exclusion of evidence of judgments and convictions

(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction -

(a) in respect of which a review or appeal (however described) has been instituted but not finally determined; or

(b) that has been quashed or set aside; or

(c) in respect of which a pardon has been given.

(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.

1. Pursuant to ss 135 and 136, the Court retains a discretion whether to admit, or to admit on certain conditions, evidence that is otherwise admissible:

135 General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time; or

...

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

1. Other provisions of the Act are concerned with the facilitation of proof, rather than admissibility. For example, s 48 addresses how contents of a document may be proved:

(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods -

...

(e) tendering a document that -

(i) forms part of the records of or kept by a business (whether or not the business is still in existence); and

(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;

(f) if the document in question is a public document - tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed -

(ii) by the authority of the Government or administration of the State, the Commonwealth, another State, a Territory or a foreign country

1. If a party wishes to rely on s 48 of the Act to adduce evidence of the contents of a document in a foreign country, s 49 requires that a copy of the document be served on the other party at least 28 days before it is to be adduced.
2. Further, a rebuttable presumption is created by s 156 of the Act in respect of public documents:
   1. Public documents

(1) A document that purports to be a copy of, or an extract from or summary of, a public document and to have been -

(a) sealed with the seal of a person who, or a body that, might reasonably be supposed to have the custody of the public document; or

(b) certified as such a copy, extract or summary by a person who might reasonably be supposed to have custody of the public document -

is presumed, unless the contrary is proved, to be a copy of the public document, or an extract from or summary of the public document.

1. Turning first to the judgment, Mr Carlile submitted on behalf of the plaintiffs that s 91 does not prevent evidence being given of the judgment, not for the purpose of establishing the truth of the facts found, but to establish the terms of the judgment and its effect.
2. On behalf of the defendants, Ms Chan resisted that the record of the judgment is admissible. The defendants' primary objection was based on relevance, pursuant to s 55 of the Act. In the alternative, Ms Chan submitted that even if the judgment is relevant, s 91 of the Act precludes its admission into evidence.
3. The plaintiffs submitted the judgment is relevant on two bases:

(a) First, as part of the narrative relevant to the proceeding. The judgment is relevant to what has been called a 'bail' document dated 16 November 2018 relating to Mr Zhao, and to a letter seeking a plea of lenience. It also explains various transactions identified by Mr Zhang, including an RMB 4.99 million payment on 7 December 2018 and an RMB 3 million payment on 16 July 2019.

(b) Secondly, the judgment reports a guilty plea to false litigation by Mr Zhao and by Xinxiang Textile Chemical Fiber Raw Materials Co. Ltd., of which Ms Zang was the manager.

1. The plaintiffs did not submit that the Court should take factual findings referred to in the reasons for judgment as accurate. Rather, the plaintiffs submitted they can use the judgment in relation to credibility. They referred to Anglo American Investments Pty Ltd v Commissioner of Taxation[1] where a certificate of conviction which showed a witness had been convicted of attempting to pervert the course of justice was only relied on for the purpose of impugning credibility.
2. In response, the defendants submitted the plaintiffs do not seek to tender the judgment as tendency evidence. No notice was given as required by s 97(1)(a) of the Act.
3. With respect to Mr Zhang's evidence that he paid 'bail' money of RMB 4.99 million on 7 December 2018, the defendants drew attention to Ms Zhao's evidence that such funds were not paid in order to secure Mr Zhao's bail. It was her evidence that Mr Zhao was released by the relevant government authority (as recorded in the 'bail' document dated 16 November 2018) on the same day he was questioned. Therefore the amount of RMB 4.99 million was offered up by Mr Zhang for reasons unconnected with any bail.
4. The defendants submitted the fact there was an investigation on or around 16 November 2018 into actions earlier taken by Mr Zhao and a company associated with him is not a fact in issue. The outcome of the investigation reported in the judgment does not bear upon the assessment of whose story is more likely to be true regarding the payment of RMB 4.99 million. The facts in issue took place in November and December 2018, whereas the date of the judgment, 29 November 2019, is much later.
5. The defendants submitted that, at its highest, the judgment is relevant to show that Mr Zhao was found to have committed the offence of false litigation contrary to the law of the PRC. This could not rationally affect the probability that the RMB 4.99 million was required for Mr Zhao's bail, nor the true purpose of the RMB 4.99 million recorded in a ledger relied on by the plaintiffs. The reasons in the judgment do not refer to any procedural matter that could be relevant under s 55 of the Act.
6. Further, the defendants submitted that s 91 of the Act applies only to findings of fact. The finding that Mr Zhao committed the offence of false litigation is arguably a finding of mixed fact and law. As there is no evidence regarding the content of Chinese law, the defendants submitted this Court is unable to understand what an offence of 'false litigation' means. To do so, it would need to have regard to the underlying factual findings in the judgment, references to which are excluded by s 91.
7. The defendants also submitted the exceptions in s 92 of the Act have no application. Mr Zhao is not a party to this proceeding and whether the judgment uses the word 'convicted' is open to doubt. The defendants handed up an alternative translation which suggested the word is 'committed'. In Australia, 'committing' an offence is a different concept to 'conviction'. Again, there is no evidence regarding the meaning of these concepts under Chinese law. Nor is there any evidence that the judgment sought to be relied on has not been set aside, appealed or finally determined, to which s 92(2) is directed.

1. The subject matter of the judgment is that the parties fabricated loan relationships and initiated a false lawsuit. The plaintiffs do not seek to rely on the judgment in support of a finding that Mr Zhao has a tendency to fabricate loan relationships, create false documents or any other like tendency. In any case, no tendency notice was given pursuant to s 97(1) of the Act.
2. I agree with the submission advanced by Ms Chan on behalf of the defendants that the judgment is not relevant evidence pursuant to s 55 of the Act. I accept that if admitted into evidence, the foreign judgment could not rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
3. A distinction needs to be drawn between the judgment and the reasons for judgment, both of which are contained in the document proposed to be tendered.
4. The plaintiffs appropriately accepted the purpose for which the judgment might be tendered is limited to establishing the terms of the judgment and its effect.
5. In Trans-world (Aluminium) Ltd v Cornelder China (Singapore),[2] the Court considered argument about whether a Chinese judgment should be admitted as conclusive proof of all matters there adjudicated upon, or whether it was conclusive only of its existence, date and legal effect. Regardless of whether the judgment was considered an in rem or in personam judgment, the judge considered that findings of fact in another proceeding were inadmissible evidence in a later proceeding, and accordingly:

without the agreement of or admission from an appropriate witness for the Defendants, the Plaintiffs cannot simply refer to matters in the judgment of the Supreme People's Court as evidence of the correctness or truth of any of the facts covered there. See Chew Chin Aik Victor v Arul Chandran (unreported decision of Chan Seng Onn JC in Suit No. 1896 of 1998). Evidence must be adduced in the usual way.[3]

1. The judgment is limited to the pronouncement by the court that it revokes an earlier civil mediation statement and dismisses the litigation claims of the named company - the matters appearing in the statements numbered I and II on the eighth page of the reasons reproduced at paragraph [11] above. That pronouncement is irrelevant to the issues in this proceeding.
2. The fact the Chinese authorities investigated Mr Zhao in relation to certain matters in 2018 is not a fact in issue in this proceeding. The judgment does not, as was submitted, 'go to the bail document'. No part of the judgment, even treating the judgment for present purposes as including the reasons, makes reference to the bail document, bail, or the letter seeking a plea of leniency, to which the plaintiffs referred in their submissions.
3. The judgment and the reasons make no reference to the amount of RMB 4.99 million. The documentary evidence shows the transfer of that amount occurred approximately two weeks after the date of the bail document. There is nothing to connect the judgment or the reasons for judgment of the court with that amount of money or with the date on which that amount was transferred.
4. Given the judgment is not sought to be relied on in relation to tendency, it is irrelevant to the credibility of the remaining witnesses to be called by the defendants, Ms Zang and Mr Zhao.
5. Section 91 of the Act provides a further reason why the judgment may not be tendered. As summarised by Odgers,[4] s 91 establishes a prima facie rule that evidence of a decision or judgment, or a finding of fact, in a proceeding is not admissible to prove some fact that was in issue in those proceedings.
6. In Ainsworth v Burden,[5] to which Mr Carlile referred in submissions, Hunt AJA (with whom Handley and McColl JJA agreed) said of s 91:

It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts.

1. I agree with the submission by Ms Chan that, in addition to being irrelevant, the judgment which contains findings by the Chinese court about Mr Zhao is excluded by s 91 of the Act because it is tendered for an impermissible purpose - to prove the existence of a fact that was in issue in the proceeding in that court. There is also a further problem. The findings concerning 'false litigation' are findings of mixed fact and law. There is no expert evidence before me as to the content of Chinese law.

1. Mr Carlile submitted the company search document is relevant on two bases:

(a) First, if admitted, the contents of the company search document may disprove the underlying allegation made by the defendants that there were entities in the control of Mr Zhao and Ms Zang capable of possessing the funds that they say they had, and that they were in a position to do so at the relevant time; and

(b) Secondly, the companies to which the searches relate were all experiencing financial difficulties, which is consistent with the plaintiffs' case that Ms Zhao might have sought to transfer funds to those companies in or around 2021 to assist them financially.

1. The plaintiffs sought to rely on s 48(1)(f)(ii) of the Act and the decision of Riordan J in Lei v Lei[6] as the basis for the admissibility of the company searches. They submitted the results in the company search document are copies of documents printed by a foreign country. That is, the company search document contains copies of records kept by the Chinese government.
2. The plaintiffs referred to Mr Zhang's evidence that although held and provided by a third party provider, TianYanCha, the company search document and its contents are authorised and approved by the Chinese government. Mr Zhang indicated he has used the service from which the company search document was sourced on many occasions. He explained how the service operates. The plaintiffs submitted the Court is entitled to take into account that Mr Zhang is in the business of dealing with distressed companies. He is not a stranger who stumbled upon the TianYanCha website. He gave evidence that he pays a subscription fee to use the TianYanCha website.
3. The plaintiffs accepted they had not complied with the notice requirement in s 49 of the Act, which applies to any person who seeks to adduce into evidence documents in foreign countries under s 48(1). However, they submitted the Court has a discretion concerning the requirement for notice[7] and that discretion should be exercised to permit reliance on the company search document. The companies to which the company search document relates are companies under the control of the defendants' witnesses. The plaintiffs also drew attention to the defendants' contention that these companies were involved in the transactions by which they allege funds first came to be in Fortune Twin BVI's bank account in late 2017.
4. In response, Ms Chan submitted the only reason the plaintiffs seek to rely upon the company search document is to prove the truth of its contents. Consequently, the company search document is inadmissible as hearsay and the business record exception in s 69 of the Act is not enlivened.
5. In addition, the defendants submitted that Lei v Lei involved an expert certificate under s 77 of the Act. In those circumstances, Riordan J could be satisfied that company searches purportedly printed by the Shenyang Company Registration Authority were records kept by the Authority as public documents, forming part of its records and being printed with its seal. In short, the business record exception to the hearsay rule was made out. By contrast, there is no such evidence in this case. Therefore, the defendants submitted s 156 of the Act does not assist the plaintiffs.
6. The defendants drew attention to Mr Zhang's evidence that the Chinese government website is not publicised and some of the information is not available to the public. Mr Zhang said the information on the TianYanCha website is authorised by the Chinese government. He then said '[t]he information on this website is the same as the information on the Chinese government website'. The defendants submitted Mr Zhang's evidence cannot safely be acted on.
7. The defendants relied on an affidavit from their solicitor, Ms Tink. Based on open source searches, the defendant submitted Ms Tink's affidavit supports a finding that TianYanCha is not a person or body that might reasonably be supposed to have custody of the records of the Chinese government. Official Chinese government searches have a domain name 'cn'. A search of 'Chinese company search' results in a different body with the domain name 'cn'.
8. The defendants submitted the website from which the company search document was apparently obtained, TianYanCha, appears to be a private website. Because the company or business is not a person or body that might reasonably be supposed to have custody of the records of the Chinese government, the defendants submitted the proposed tender of the company search document does not satisfy s 156(1)(a).
9. Even if s 156(1)(a) is met, the defendants submitted there is an additional hurdle under s 48 of the Act. The relevant mechanism for adducing evidence of the contents of a public document is subsection (1)(f)(ii). The company search document does not purport to have been printed by an authority of the Chinese government.
10. Further, the defendants said non-compliance with s 49 is fatal. The Court should not exercise its discretion where the company search document was served the night before the trial commenced. The defendants contended the late provision of the company search document had a real impact on the ability to seek instructions. No Chinese version was provided and the witnesses to be cross-examined in relation to it had already flown to Australia and could not access the TianYanCha website in Australia.
11. Finally, the defendants submitted the information on the face of the company search document is confusing. There was no real attempt by the plaintiffs to explain what it says. In those circumstances, if the company search document is otherwise admissible (which the defendants say is not the case), it should be excluded under s 135 of the Act. Use of the document would result in unfair prejudice and the document has negligible probative value.

1. I agree with the defendants that the company search document is not admissible.

C.2.1 Purported admissibility under s 48(1) of the Act

1. Section 48(1) of the Act is 'facilitative' in that it 'deals with the manner in which a party can adduce the contents of a document ... by merely the tender of the document itself'.[8] In Slater (a pseudonym) v The Queen,[9] the Victorian Court of Appeal (Priest and Sifris JJA) explained the operation of s 48, emphasising that it does not authorise the admission of otherwise inadmissible evidence:

Section 48 of the Evidence Act ... provides a means for proving the contents of documents. It presupposes that the contents of the documents sought to be adduced are admissible. It does not render admissible the contents of documents which are otherwise inadmissible. It merely facilitates proof of the admissible contents of documents ... It did not permit the adduction of [certain material] unless those contents were otherwise admissible. Insofar as the judge's ruling proceeded on the basis that s 48 itself provided a distinct head of admissibility ... it was in error.[10]

1. The plaintiffs seek to rely upon the company search document to prove the truth of its contents, including matters such as the shareholders of the companies. The contents of the document are hearsay, excluded by s 59 of the Act. The admissibility of the company search document must be established under another ground, such as the business record exception in s 69, before ss 48 and 49 become relevant considerations.

C.2.2 Admissibility under s 69 of the Act

1. Section 69 provides an exception to the hearsay rule in relation to business records and appears at paragraph 20 above.
2. The definition of 'business' in the Act is broad. It includes:

(a) an activity engaged in or carried on by the government of a foreign country;

(b) an activity engaged in or carried on by a person or body holding office or exercising power under or because of a law of a foreign country (otherwise than in a private capacity);

(c) the proceedings of a legislature of a foreign country; and

(d) a business engaged in or carried on outside Australia.[11]

1. In Lei v Lei,[12] Riordan J ruled on the admissibility of Chinese company searches considering, amongst other things, whether they were admissible as to the truth of their contents pursuant to s 69. His Honour concluded that they were admissible as business records, noting that 'business' was to be construed liberally. However, his Honour had the benefit of expert evidence concerning the documents upon which he was required to rule. Reference was explicitly made to this expert evidence in his Honour's conclusion that the requirements in sub-sections 69(1) and (2) were satisfied. In respect of s 69(2), his Honour said:

The court is permitted to draw inferences from the form of the document and from the nature of the information contained in it, in determining whether the document was made on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.[13]

1. Referencing s 156 of the Act, Riordan J considered that the body which had sealed the company searches was one which, in his opinion, might reasonably be supposed to have the custody of such public documents; accordingly, in the absence of evidence to the contrary, the company searches were presumed to be public documents.[14]
2. In Yin v Wu,[15] the Victorian Court of Appeal considered whether copy bank statements which the respondent obtained from a Chinese court should not have been admitted as business records pursuant to s 69(1)(a) of the Act because the evidence was 'insufficient to establish a reliable provenance for the copy bank statements'.[16] The Court disagreed:

Although the associate justice's reasons on this issue were brief, his path of reasoning was clear enough. He set out the process by which [the respondent] obtained the copy bank statements from the Chinese court and on that account treated them as authentic. Based on this evidence, 'and on considering the accounts', the associate justice held that they were admissible. The reference to the associate justice 'considering the accounts' is clearly to him have drawn inferences from the documents themselves that they were business records for the purposes of s 69(1)(a). The judge expressly referred to the 'nature and context' of the bank statements as permitting an inference to be drawn that the person who had created the bank records had personal knowledge of the asserted facts contained in them.[17]

1. The Court then referred to the decision of J Forrest J in Matthews v SPI Electricity Pty Ltd (Ruling No 35),[18] where his Honour considered what was necessary to establish authenticity of business records such that they can be said to fall within the scope of s 69:

J Forrest J reviewed the authorities, including the statement in ASIC v Rich that 'authenticity cannot be achieved solely by drawing inferences from the face of the document where there is no other evidence to indicate provenance'. J Forrest J stated that following approach to establishing authenticity from the face of the document and the evidence as to how it came to be produced:

Consistent with the decision in Air New Zealand, a combination of s 55 and s 58 of the Evidence Act enables a court to examine the document itself and then determine whether it is authentic - absent other evidence. So for the purpose of this application it is appropriate to examine each of the documents and the surrounding circumstances of their production and draw appropriate inferences, where applicable, as to:

(a) how the document came to be adduced in evidence;

(b) whether it was a document prepared by one of the companies;

(c) whether it was a document prepared by one of the companies for the purpose of its business;

(d) whether the contents of the document form part of the records of the business;

(e) whether the documents contain statements relevant to the proceeding made in the course of or for the purpose of the business;

(f) whether the representation contained in the document was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact relied upon; and

(g) whether the representation was made on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.[19]

1. In Yin v Wu the Court of Appeal concluded, first, there was clear evidence as to how the copy bank statements were obtained from the Chinese court: each bank statement was accompanied by a statement under seal of the relevant bank as to the fact of enquiry by the Chinese court and the production of the statements in response. Second, in the context of how they were obtained, an examination of the statements allowed an inference to be drawn that they were documents prepared by the bank for the purpose of its business and for its business records. Further, there was no reason to doubt the statements were made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted facts.[20]
2. The same level of satisfaction as to the provenance, authenticity and/or purpose of the company search document is not made out in this case. I am not persuaded the results in the company search document form part of the records 'belonging to or kept by' TianYanCha as required by s 69 (1)(a) of the Act.
3. Mr Zhang gave evidence which shows the company search document is not a document that forms part of the records belonging to or kept by TianYanCha. It was his evidence that the information on the TianYanCha website is authorised by the Chinese government. He also gave evidence that the information on the TianYanCha website is derived from or replicates information that is published on a Chinese government website. That is not evidence that the company search document forms part of the records belonging to or kept by TianYanCha. Taken at its highest, it is evidence that the subject matter of the document forms part of the records belonging to or kept by someone else, likely a Chinese government agency or authority. That accords with the substance of the evidence given by Ms Tink in her affidavit.
4. Because I am not satisfied the company search document forms part of records belonging to or kept by TianYanCha, it follows that the requirements of s 69(1) of the Act have not been met.
5. I also accept the defendants' submission that s 156 of the Act is not available to the plaintiffs in this case. Section 156 facilitates proof of a record which is part of the records of the government of a foreign country. The company search document does not purport to be a copy of, an extract from, or a summary of, a public document sealed with the seal of a government body.
6. I accept the submission of the defendants that TianYanCha is not a person or a body who might reasonably be supposed to have the custody of a public document. Although Mr Zhang gave evidence that TianYanCha is so authorised, there is no other evidence to show that is the case. Indeed the evidence in Ms Tink's affidavit is that TianYanCha is a private website which does not have a domain page ending with '.gov.cn', which I infer is the domain address for official Chinese government websites.
7. For those reasons, the proposed tender of the company search document is refused.

C.2.3 Discretion under s 49(b) of the Act

1. Because I have determined that the company search document is not admissible pursuant to s 69 of the Act it is not necessary to consider whether I would have exercised my discretion under s 49(b). However, in deference to counsel's submissions, I will address the topic briefly.
2. Section 49 provides that any person who wishes to adduce into evidence documents in foreign countries under s 48(1) may not do so unless:

(a) a copy has been served on each other party at least 28 days before the day on which the evidence is proposed to be adduced; or

(b) the court otherwise directs.

1. If the company search document were otherwise admissible, I would not have been prepared to make a direction under s 49(b) of the Act. The company search document was served the day before the trial commenced, without prior notice to the defendants. The document was provided in English only, albeit as a certified translation. It would be inappropriate to make a direction under s 49(b) of the Act in circumstances where:

(a) I first made an Order for the preparation of a joint Court Book on 27 March 2025 which was to contain all documents to which any party intended to refer or rely upon at the trial;

(b) there was no explanation for the delay in providing the company search document and, in particular, why it could not have been provided earlier; and

(c) at the time of service, the relevant witnesses were already in Australia and unable to access the TianYanCha website to verify the accuracy of the document's contents.

[1] [2021] FCA 1253 at [50].

[2] [2003] SGHC 56 (Belinda Ang Saw Ean J).

[3] Ibid [19]. See also Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 14), [2023] FedCFamC2G 868.

[4] Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 20th ed, 2025) [EA 91.60].

[5] [2005] NSWCA 174, [109].

[6] [2016] VSC 121; (2016) 50 VR 409, [15]-[16].

[7] See, for example, China Insurance Group Finance Company Limited v Kingston (No 3) [2023] VSC 6.

[8] Matthews v SPI Electricity Pty Ltd (Ruling No 35) [2014] VSC 59, [16].

[11] Part 2 s 1 of the Dictionary of the Act.

[12] [2016] VSC 121; (2016) 50 VR 409.

[13] Ibid 414 [15] (citations omitted).

[15] (2023) 73 VR 21 (Kyrou, T Forrest and Hargrave JJA).

[18] [2014] VSC 59.

[19] Ibid 63 [123] (citations omitted).