Li v Wang (No. 3) - [2024] NSWSC 661

Supreme Court

New South Wales

Medium Neutral Citation: Li v Wang (No. 3) [2024] NSWSC 661
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 Subo Zhang, Zhongpeng Wang and Fenglan Su to be given by audio visual link.

Catchwords:
PRACTICE & PROCEDURE – Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B – cross-examination of witnesses in China – evidence regarding credibility of plaintiff – two witnesses cannot attend court in Australia as no passport or visa – not unfair to allow evidence by AVL – in the interests of justice to allow evidence by AVL

Legislation Cited:
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Li v Wang (No. 2) [2024] NSWSC 649
In the matter of Mulberry Capital Management Pty Ltd v Shen - AVL Application [2022] NSWSC 1023

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

By notice of motion filed on 2 April 2024 the second and third defendants seek an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (“the Act”) that Subo Zhang, Zhongpeng Wang and Fenglan Su give evidence by way of audio visual link at the hearing of the proceedings.
I have outlined the nature of the proceedings in a judgment delivered this morning in respect of an application by the plaintiff for two of her witnesses to give evidence by audio visual link, an application which I granted: Li v Wang (No. 2) [2024] NSWSC 649 (“Li v Wang (No. 2)”) at [8] to [17]. The witnesses in respect of which I granted the plaintiff’s application are resident in China and are Chinese Mandarin speakers who will require an interpreter, and who will be cross-examined by the legal representative for the second and third defendants at the trial.
The principles that apply to applications of this nature have been set out in this morning’s judgment: Li v Wang (No. 2) at [25] to [26].
The plaintiff opposes the second and third defendants’ application and has in helpful written and oral submissions outlined why she takes that approach.
The three witnesses are not technically relevant to any direct fact in issue in the proceeding which concerns a loan provided by the plaintiff to the named defendants, but rather they give evidence that seeks to undermine the plaintiff’s credibility.
Two of the witnesses, Mr Wang and Ms Zhang, address the question of an allegation of fake hospital certificates deployed by the plaintiff in some context at some time, and therefore their evidence is only relevant to the issues concerning the…

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. 3)

Details

AGLC: Li v Wang (No. 3) [2024] NSWSC 661
Case: [2024] NSWSC 661
Decision Date: 28 May 2024

CaseChat Overview and Summary

In Li v Wang (No. 3), the plaintiff sought damages for personal injuries sustained in an accident in China. The defendants were the driver and the owner of the vehicle involved in the accident. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the defendants could be cross-examined in China via audio-visual link (AVL) under section 5B of the Evidence (Audio and Visual Links) Act 1998 (NSW). Two witnesses for the plaintiff were unable to attend court in Australia due to a lack of passports and visas.

The court needed to determine if it was fair and in the interests of justice to permit the cross-examination of the two witnesses from China using AVL. The defendants argued that the absence of their witnesses was unfair and prejudicial, while the plaintiff contended that the AVL procedure was an acceptable alternative under the Act. The court considered the statutory provisions, the circumstances of the case, and the potential impact on the fairness of the proceedings. It concluded that the use of AVL was appropriate in the given circumstances and would not prejudice the defendants' rights to a fair trial.

The court found that the use of AVL for the cross-examination of the witnesses was in the interests of justice and did not unfairly prejudice the defendants. The court acknowledged the difficulties faced by the witnesses in obtaining passports and visas but noted that the statutory framework allowed for such arrangements. The court allowed the evidence to be presented via AVL, ruling that it was a reasonable and fair alternative under the circumstances. The final orders of the court permitted the cross-examination of the witnesses by AVL and directed the parties to proceed with the trial in accordance with the court's ruling.

Orders