Dunbrae Pty Ltd v Armani Restaurant Pty Ltd

Dunbrae Pty Ltd applied to the Supreme Court of New South Wales for leave to take the evidence of a witness who resided in the United Arab Emirates by audio-visual link (AVL). The applicant sought to do so under section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Armani Restaurant Pty Ltd opposed the application on the basis that it would intrude on the sovereignty of the UAE. The court had to decide whether it was appropriate to take evidence by AVL from a foreign country, whether such a course of action would intrude on the sovereignty of the foreign country, and if so, whether it was nonetheless appropriate to take evidence by AVL. The court applied the principles of international comity and the relevant provisions of the Act to determine that it was not appropriate to take evidence by AVL from the UAE. The applicant's application was denied.

The court considered the relevance of international comity in determining whether it was appropriate to take evidence by AVL from a foreign country. It noted that comity was a principle of public international law which required states to act in a manner that did not unduly infringe on the sovereignty of other states. The court considered the principles in Wang Chunfeng v Law Society of New South Wales and Joyce v Sunland Waterfront (BVI) Ltd to be relevant to the determination of this issue. In those cases, the courts had considered whether it was appropriate to take evidence by AVL from a foreign country in circumstances where the taking of such evidence would intrude on the sovereignty of the foreign country. The court concluded that the taking of evidence by AVL from the UAE would intrude on the sovereignty of that country and was therefore not appropriate. The court also noted that the applicant had not demonstrated that there were exceptional circumstances which would justify the taking of evidence by AVL from the UAE.