Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986 | Case summary

Legal framework

The need, as a practical matter, for courts in one country to obtain evidence from persons in another country is by no means novel. The need for uniform and acceptable arrangements led, more than 50 years ago, to the "Hague Convention of 18 March 1970 on the Taking of Evidence abroad in Civil or Commercial Matters" (the Hague Evidence Convention). However, the Hague Evidence Convention did not provide for the technological developments which began to become widely used over the following two decades, nor has the Convention been updated. It deals with letters of request for a person to attend before a commissioner or other official in the second country to give evidence for the purpose of civil proceedings in a court of the requesting country. The process takes place through diplomatic channels and is not simple or speedy.
Although both Australia and China are parties to the Hague Evidence Convention, it completes the picture to note that the process, where the foreign location is not a party, requires the issue of letters rogatory, an even more cumbersome process. However, the development of video conferencing over the internet has allowed for the wholesale avoidance of the need for letters of request and the procedures provided by the Hague Evidence Convention. The result has been the development of local procedural rules which provide for the taking of evidence in the domestic court, by way of an audio-visual link or telephone link, to a foreign country. As noted by Professor Martin Davies in 2007, the decision of the United States Supreme Court in Société Nationale Industrielle Aerospatiale v United States District Court [1] permitted the use of these procedures in lieu of the procedures under the Hague Evidence Convention. [2] As Professor Davies further noted, not all countries accept that view: some countries, including Germany and France, treat the Hague Evidence Convention as the exclusive means by which evidence may be taken from a witness in a foreign country, or did so in 2007.
Australian jurisdictions have followed the trend of establishing local rules governing the taking of evidence remotely. The primary source of local authority in New South Wales is the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Section 5B of that Act relevantly states: 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.
The second question raised by this procedure concerns the administration of an oath or affirmation. That is covered by s 5D of the Act which provides: 5D Administration of oaths and affirmations (1) Subject to subsection (2), an oath to be sworn or affirmation to be made by a person giving evidence by audio link or audio visual link under Part 1A or 1B may be administered either - (a) by means of the audio link or audio visual link, as nearly as practicable in the same way as if the person were to give evidence in the courtroom or other place where the NSW court is sitting, or (b) at the direction of, or on behalf of, the court at the place where the person is giving the evidence by a person authorised by the court. (2) A person giving evidence by audio link or audio visual link under Part 1A or 1B from a foreign country is not required to give the evidence on oath or affirmation if - (a) the law in force in that country - (i) does not permit the person to give evidence on oath or affirmation for the purposes of the proceeding, or (ii) would make it inconvenient for the person to give evidence on oath or affirmation for the purposes of the proceeding, and (b) the NSW court is satisfied that it is appropriate for the evidence to be given otherwise than on oath or affirmation. (3) If evidence is given otherwise than on oath or affirmation, the NSW court is to give the evidence such weight as it thinks fit in the circumstances. (4) Subsections (2) and (3) apply despite anything to the contrary in the Evidence Act 1995 or any other law of this State.
It is not yet necessary to address the question of the use of an oath or affirmation, though it should be considered now by the parties. I will return to the exercise of the powers conferred by s 5B after addressing the case law on this topic.
Mr Vogel's affidavit of 15 July 2022 raised a separate issue as to the lawfulness of his client giving evidence by audio-visual link from China. He relied upon the proposition apparently accepted by Perram J in Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment) [3] that, "The taking of evidence by this Court would be an exercise of sovereignty by the Commonwealth within the territorial confines of China and as such would require the permission of the Chinese State. As such it would be necessary to obtain the permission of China through official channels under the Hague Convention ….".
This proposition was referred to in this Court by Robb J in Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd, [4] but it is not clear why the official channels required to be availed of under Chinese law are those to do with the Hague Evidence Convention, which does not involve electronic links, nor consent to such activities. Certainly, the evidence in this Court did not suggest that the process under the Hague Evidence Convention was necessarily or properly invoked in relation to giving evidence by electronic means. However, there is support for that view in another Federal Court judgment.
In Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd, [5] Stewart J had the benefit of advice from Chinese lawyers as to the relevant Chinese law, which he accepted, to the following effect: "(1) The restriction on the ability of a witness in Australian proceedings to give evidence by AVL from China is to be found in Article 263 of the Civil Procedure Law of the People's Republic of China (1991) which provides as follows: 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 investigations 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 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. (2) With the consent of the relevant administrative authority of the PRC as provided within Article 263, there would be no constraint on the giving of AVL evidence. (3) Application was made by JunZeJun law firm for approval from the relevant administrative authority of the PRC, being the Foreign Affairs Office of the Ningxia Hui Autonomous Region of China, on 8 July 2020. (4) The Foreign Affairs Office of the Ningxia Hui Autonomous Region of China has given its approval for an AVL hearing to be conducted."
Further, the issue of the need for consent to an exercise of sovereignty in China is a separate issue from the other aspect of unlawfulness identified by Mr Vogel, namely using a virtual private network (VPN) to sidestep the firewall believed to prevent communication with the Court's authorised network. The use of VPNs is said to be illegal for that purpose in China. However, I do not understand the use of publicly available audio-digital facilities, such as Microsoft Teams, Webex, Zoom or Skype, to constitute the use of a VPN. The latter term is more commonly used to refer to encrypted communications which avoid official recognition.
The question as to non-consensual intrusion on sovereignty of a foreign country is more complex. This issue was discussed by the Full Court of the Federal Court in Joyce v Sunland Waterfront (BVI) Ltd. [6] That case involved proceedings brought in Queensland between two groups of companies with respect to the purchase of land in the United Arab Emirates (UAE), one claiming the contracts were induced by false or misleading representations by two individuals, one of whom was Mr Joyce. Mr Joyce was then in UAE and, having been charged with criminal offences, was prohibited from leaving the UAE. He was willing to participate in the Australian proceedings by audio-visual link. The primary judge, Logan J, while accepting that he had power to take evidence in Dubai pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), nevertheless thought that he should not do so absent evidence that the UAE government had no objection to that course, and stayed the proceedings until such evidence was available.
The Full Court treated this reticence as derived from respect for the international notions of territorial sovereignty and comity between states. It noted the reference to "comity" in CSR Ltd v Cigna Insurance Australia Ltd, [7] observing that it was "neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other". Rather, it was "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws". [8]
The Full Court in Joyce did not think that such considerations were relevant in giving effect to the discretionary power under s 47A to take evidence by video link. The Full Court stated: "60 Section 47A of the [Federal Court of Australia Act] confers the power to allow testimony to be given by video link, audio link or 'other appropriate means'. It specifically authorizes the exercise of this power where the person giving the testimony is in a foreign country. There are express provisions permitting the Court to dispense with the requirement for an oath or affirmation where the law in force in the foreign country does not permit such a course, or where it would be inconvenient, because of a law of that country for a person to give evidence on oath or affirmation. However the legislation does not require that the foreign state consent to a person within its borders giving evidence by video link to an Australian court. If the Parliament perceived any problem arising out of the concept of sovereignty or that of comity, then it seems to have overridden any obligation which Australia may have had in that regard. In our view, s 47A authorizes this Court to take evidence on oath or affirmation from a person located in any other state, save where the law of that state prohibits or makes inconvenient the giving of evidence on oath or affirmation. In that case, the Court may dispense with the oath or affirmation. We see no justification for imposing upon the exercise of the discretion conferred by s 47A, a requirement that the other state consent to the taking of evidence in that way. 61 Of course, if the law of a foreign state prohibits a person within its borders from participating in such a process, then problems might arise. That is not the present case…. 62 In those circumstances we conclude that in exercising the discretion pursuant to s 47A, the Court is not hampered by any need to consider questions of sovereignty or comity between nations, at least absent any law forbidding such conduct, and subject to the question of whether an oath or affirmation should be required…."
On the basis that the primary judge had taken irrelevant considerations into account, his orders were set aside. Nevertheless, the Full Court thought it appropriate to refer to "the widespread practice of approaching [the Department of Foreign Affairs and Trade] where a court proposes to take evidence in a foreign country, with a view to obtaining the consent of the relevant government", a practice which was not disapproved. [9] A distinction was drawn, however, between a person attending in a foreign country to obtain evidence from a witness and the witness giving evidence by video link from the country. The reasoning continued: "However the rules relating to sovereignty and comity do not limit the individual rights and freedoms of individual persons. Provided that the law of the relevant nation does not forbid it, an Australian citizen, whilst present in a foreign country, may speak on the telephone to somebody in Australia, be it his or her mother, lawyer or, we suggest, a court sitting to determine a matter in accordance with the law of Australia."
How far these dicta should be taken is by no means clear: however, even in the case of an Australian citizen in a foreign country, they concede the power of that country to control his or her conduct or behaviour. In the present case the Court should accept that such control is highly plausible where the person to give evidence is a Chinese citizen in China.
Nygh's Conflict of Laws in Australia, [10] after noting the objection of some countries to foreign judicial officials taking evidence from persons within their territory on the ground that such an act constitutes an invasion of their sovereignty, nevertheless concludes that Joyce was authority for the proposition that "legislation authorising the taking of evidence by video link overrides any obligation that Australia might have had to respect another nation's sovereignty for reasons of international comity". Further, the commentary states: "Accordingly, the court should exercise its discretion to take evidence by video link even if the country from which evidence is to be given does not consent to a person within its borders giving evidence to a court in Australia. If that country prohibits or makes inconvenient the giving of evidence on oath or affirmation from within its borders, the court should take the evidence by video link but dispense with the oath or affirmation."
This passage distinguishes between non-consent and prohibition. As the authors note, Joyce did not address the question of a witness subject to a prohibition rendering it unlawful to give evidence to the court in another country. Nor does the discussion in the text, or the cases, address the distinction between a prohibition, the absence of consent and a law which conditions permission on the giving of consent.
There is a further concern. No doubt a Commonwealth law which provides for the grant of a visa to a person subject to persecution in a foreign country under the Refugee Convention implies that its officers (and the courts reviewing decisions of the officers) must ignore any adverse international repercussions of a finding that another country persecutes a class of its citizens. However, it is less clear that a law which confers a power on a court to take evidence in another country requires the court to ignore the possible ramifications of such an action, either for the witness or for international relations. There are different views as to what involves an invasion of sovereignty in accordance with international law.
Finally, there is a question as to what implication should be drawn with respect to a court having regard to international sovereignty and comity, where the relevant law is a state or territory law conferring power on a state or territory court. The inference that a state or territory legislature has made a judgment about such matters is less than compelling; the significance of any such views in fact formed by a sub-national legislature is obscure.
In the present case, two factors are important. The first is that the relevant person whose evidence is required is that of the plaintiff himself. It is undoubtedly in his interests to make arrangements so that he can give evidence and be cross-examined, against the likelihood that if he is not available for cross-examination the defendant will object to the reading of his affidavit. Secondly, the plaintiff is not an Australian citizen abroad, but a Chinese citizen at home.
Mr Vogel indicated in his affidavit that he had made an approach to the Chinese Embassy in Australia and that the plaintiff was actively seeking consent from the Chinese authorities to give evidence in this Court by audio-visual link. In vacating the hearing dates, I took the view that such an opportunity should be accorded to the plaintiff. The discussion by Perram J in Motorola Solutions and the judgment of Stewart J in Auken Animal Husbandry support the conclusion that the Civil Procedure Law of the People's Republic of China prevents witnesses being cross-examined via video-conferencing while located in China.
On the other side of the record, the defendant could suggest no substantial prejudice (other than the throwing away of the costs of the days fixed for hearing) if the dates were vacated to allow those enquiries to proceed.
Finally, in making the orders on 18 July, I was conscious of the fact that in Wang v Council of the Law Society of New South Wales [11] a different applicant with a similar claim gave evidence by telephone from China. No issue seems to have been raised as to the propriety of that course. It therefore provides no assistance on the present point, where the issue has been raised squarely in circumstances where it needs to be resolved.
Not being satisfied that the responsibility for the vacation of the hearing dates lay all on one side of the record, but accepting that it was a matter which the plaintiff should have addressed earlier, I ordered that the costs of the motion be the defendant's costs in the proceedings.

Wang Chunfeng v Law Society of New South Wales

At a glance

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