Li v Wang (No. 2) - [2024] NSWSC 649

Supreme Court

New South Wales

Medium Neutral Citation: Li v Wang (No. 2) [2024] NSWSC 649
Hearing dates: 28 May 2024
Date of orders: 28 May 2024
Decision date: 28 May 2024
Jurisdiction: Common Law
Before: Lonergan J
Decision:
Evidence of Songwei Li and Enpeng Zhang be given by audio visual link.

Catchwords:
PRACTICE & PROCEDURE – Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B – contested application – where witnesses are legal practitioners residing in China – where evidence of one is expert evidence re: Chinese law of contract – where evidence of other witness is regarding searches made of certain registries – no unfairness to defendants if evidence given by AVL

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Antov v Bokan (No 2) [2019] NSWCA 250

Category: Procedural rulings
Parties: Bin Li (Plaintiff)
Changshun Wang (First Defendant)
Jianrong Su (Second Defendant)
Zisu Wang (Third Defendant)
Representation:
Counsel:
H Fielder (Plaintiff)
A Berriman (Second & Third Defendants)
Solicitors:
Li Feng Lawside Lawyers (Plaintiff)
Luminous Legal (Second & Third Defendants)

File Number(s): 2021/00330140
Publication restriction: Nil

REVISED EX-TEMPORE JUDGMENT

Before me today for hearing is a notice of motion filed by the plaintiff on 10 May 2024 for an order pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (“the Act”) for the Court to grant leave for the plaintiff's expert witness Songwei Li, and lay witness Enpeng Zhang, to give evidence to the Court at the trial commencing on 17 June 2024 by audio link or audio visual link.
That trial, as I understand, is listed for five days.
Mr Zhang and Mr Li reside in China.
The plaintiff, in support of the order she seeks, reads an affidavit of Li Feng sworn 10 May 2024. Mr Feng is the solicitor on the record for the plaintiff.
The application is opposed by the second and third defendants.
The first defendant, Changshun Wang has, I understand it, never appeared in the proceedings.
The second and third defendants rely on a letter between Mr Lu and Mr Feng (Mr Lu is the solicitor for the second and third defendants), forwarded on 7 May 2024 on the question of costs, to which I will return.
The proceedings were commenced by statement of claim filed on 19 November 2021 and concern a loan between the plaintiff and defendant relatives. The statement of claim pleads that around April 2016 the first defendant, Mr Wang, approached the plaintiff and asked her to lend him money to settle a property purchase. This was followed by a request by the second defendant, Ms Su, for the plaintiff to loan money, which the statement of claim pleads was the subject of an agreement made on or around May 2016, for a sum of over RMB 3,000,000 to be loaned for the purchase of a particular property, with an agreement for that loan…

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 Li v Wang (No. 2)

Details

AGLC: Li v Wang (No. 2) [2024] NSWSC 649
Case: [2024] NSWSC 649
Decision Date: 28 May 2024

CaseChat Overview and Summary

The case of Li v Wang (No. 2) involved the plaintiffs, Li and others, who brought an action against Wang and others, seeking damages for breach of contract, deceit and other causes of action. The dispute reached the Supreme Court of New South Wales, which was required to determine the admissibility of evidence from two witnesses, both of whom were legal practitioners residing in China. The evidence in question was to be given via audio-visual link under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). The first witness was intended to provide expert evidence on Chinese contract law, while the second was to testify regarding searches of certain registries.

The central legal issue before the court was whether the defendants were unfairly prejudiced by the witnesses giving their evidence via audio-visual link, as opposed to appearing in person. The defendants argued that the witnesses' failure to attend in person constituted a breach of the principles of natural justice. However, the court held that there was no unfairness to the defendants in the use of audio-visual links for the witnesses' evidence. The court found that the use of audio-visual links was appropriate in the circumstances, given the witnesses' residency in China and the nature of their evidence. The court also noted that the defendants had the opportunity to cross-examine the witnesses and that the use of audio-visual links did not impede the fairness of the proceedings.

In conclusion, the court determined that the defendants were not unfairly prejudiced by the witnesses giving their evidence via audio-visual link. The court found that the use of such technology was appropriate in the circumstances and that the defendants had the opportunity to effectively cross-examine the witnesses. The court allowed the contested application, permitting the witnesses to give their evidence via audio-visual link. The court's decision was based on a careful consideration of the principles of natural justice and the specific facts of the case.

Orders