Dunbrae Pty Ltd v Armani Restaurant Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Dunbrae Pty Ltd v Armani Restaurant Pty Ltd [2022] NSWDC 308

Hearing dates:

28 July 2022

Date of orders:

28 July 2022

Decision date:

03 August 2022

Jurisdiction:

Civil

Before:

Montgomery DCJ

Decision:

Application for evidence to be taken by AVL from United Arab Emirates denied

Catchwords:

CIVIL PROCEDURE – audio-visual link – whether taking evidence by video link to foreign country intrudes on sovereignty of foreign country – relevance of international comity – application of Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B – application to state court of principles in Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986; Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; [2011] FCAFC 95

Legislation Cited:

Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Federal Court of Australia Act 1976 (Cth), ss 47A

Cases Cited:

Joyce v Sunland Waterfront (BVI) Ltd (2011) 195 FCR 213; [2011] FCAFC 95

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

Category:

Procedural rulings

Parties:

Dunbrae Pty Limited, Plaintiff/Cross Defendant
Armani Restaurant Pty Ltd, Defendant/Cross Claimant

Representation:

Counsel:
Mr Kaufmann, Counsel for the Plaintiff/Cross Defendant
Mr Oakes, Counsel for the Defendant/Cross Claimant

Solicitors:
Rostron Carlyle Rojas Lawyers, Solicitors for the Plaintiff/Cross Defendant
Grove Lawyers, Solicitors for the Defendant/Cross Claimant

File Number(s):

2019/00016357

Judgment EX TEMPORE

1. HIS HONOUR: This matter was listed part heard today including for oral evidence in the form of cross-examination of Mr Mustafa Krich. Mr Krich is the owner of the defendant cross-claimant restaurant - that is, practically speaking - he is the sole director of the defendant cross-claimant company.

2. The proposal was for the evidence of Mr Krich to be taken by audio visual link to Dubai within the United Arab Emirates. At the commencement of today, I raised with the parties the decision of Wang Chunfeng v Law Society of New South Wales [2022] NSWSC 986, in which Basten AJ expressed the mindfulness required of the issue of whether the taking of evidence from a foreign sovereign nation is conducted without offence to the sovereignty of that nation.

3. The facts were different in the case of Wang Chunfeng. He was a plaintiff - to that fact, there is not much difference given that Mr Krich is, as it were, for practical purposes, the defendant cross-claimant. But, significantly, Mr Wang Chunfeng was a citizen of China, to which country the link was proposed. It has been confirmed after a short adjournment that Mr Krich, in this case, is an Australian citizen.

4. No steps have been taken, other than after it was raised this morning by the Court, toward investigation of whether there is a complexity or otherwise, perhaps even an illegality in the UAE, in the obtaining of evidence in this way.

5. I have not, in these reasons, needed to the distinction between giving evidence on oath or just the evidence being taken in some other…