Lei v Lei (Ruling No 1) - [2016] VSC 121

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2010 3712

ZHENJI LEI (ALSO KNOWN AS PETER LEI) & ORS (According to the Schedule)	Plaintiffs
v
YUHUI LEI (ALSO KNOWN AS JULIYA LEI) & ORS (According to the Schedule)	Defendants

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 MARCH 2016
DATE OF RULING:	17 MARCH 2016 (ex tempore)
CASE MAY BE CITED AS:	LEI v LEI (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2016] VSC 121

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EVIDENCE – Admissibility of Chinese company search – Whether Chinese company search a public document as defined in pt 1 of the Dictionary to the Evidence Act 2008? – Whether Chinese company search admissible as public document printed by the authority of a foreign company under s 48(1)(f) of the Evidence Act? – Whether Chinese company search admissible as to truth of its contents under s 69 of the Evidence Act? – Whether activity of keeping company records by body exercising power under a law of a foreign country is a business within meaning of cl 1, pt 2 of the Dictionary in the Evidence Act?

EXPERT EVIDENCE – Whether expert certificate admissible under s 177 of the Evidence Act? – Whether hearsay contents of expert certificate admissible under s 60 of the Evidence Act? – Whether hearsay contents should be excluded under s 136 of the Evidence Act?

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Nunns	James Hopper & Associates
For the First Defendant	In person
For the Third Defendant	In person

HIS HONOUR:

This is an application by the plaintiffs to tender an expert certificate (‘the Expert Certificate’) of Mr Hongliang Liu and attached affidavit and expert report pursuant to s 177 of the Evidence Act 2008 (‘the Act’). Mr Liu is a lawyer with legal qualifications in China and Australia. He has been admitted to practice as a lawyer in China since 1992 and is currently based in Shanghai as Special Counsel of Hunt & Hunt Lawyers. His evidence relates to policies of Chinese trade and foreign exchange and ownership of certain companies.

Section 177 of the Act provides as follows:

(1)Evidence of a person's opinion may be adduced by tendering a certificate (expert certificate) signed by the person that—
(a) states the person's name and address; and
(b)states that the person has specialised knowledge based on his or her training, study or experience as specified in the certificate; and
(c)sets out an opinion that the person holds and that is expressed to be wholly or substantially based on that knowledge.

(2)Subsection (1) does not apply unless the party seeking to tender the expert certificate has served on each other party—
(a) a copy of the certificate; and
(b)a written notice stating that the party proposes to tender the certificate as evidence of the opinion.

(3) Service must be effected not later than—
(a) 21 days before the hearing; or
(b)if, on application by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lei v Lei (Ruling No 1)

Details

AGLC: Lei v Lei (Ruling No 1) [2016] VSC 121
Case: [2016] VSC 121
Decision Date: 17 MARCH 2016 (ex tempore)

CaseChat Overview and Summary

In the case of Lei v Lei, the primary dispute centred on the admissibility of various documents and expert evidence in the Family Court of Australia. The core issue was whether specific documents, including a Chinese company search and an expert certificate, could be admitted as evidence under the Evidence Act 2008. The case required the court to determine whether these documents qualified as public documents, and if they could be accepted as to the truth of their contents. Additionally, the court needed to decide if the expert certificate was admissible and whether its contents, which were hearsay, should be excluded.

The legal questions the court faced involved interpreting the definition of "public document" in the Evidence Act, specifically whether the Chinese company search could be considered a public document printed by the authority of a foreign company. Another issue was whether the activity of keeping company records by a body exercising power under a law of a foreign country constituted a business within the meaning of the Act. The court also had to consider whether the expert certificate could be admitted under section 177 of the Evidence Act and if its hearsay contents should be excluded under section 136.

In its reasoning, the court held that the Chinese company search was a public document within the meaning of section 48(1)(f) of the Evidence Act, as it was printed by an authority exercising a public function in China. The court found that the activity of keeping company records by the Chinese government was indeed a business under the Act. Regarding the expert certificate, the court concluded that it was admissible under section 177, and its hearsay contents were not excluded under section 136 because they were relevant to the issues in the case.

The court ordered that the Expert Certificate, together with its attachments, be admitted as to the truth of their contents. The court did not provide further details on the final orders made in the case.

Orders

Orders of the court

I propose to admit the Expert Certificate together with its attachments as to the truth of their contents.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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