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Moy and Pao (No 3)

Moy and Pao (No 3)

Case [2021] FamCA 310 13 May 2021

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FAMILY COURT OF AUSTRALIA

MOY & PAO (NO. 3)

[2021] FamCA 310

FAMILY LAW – EVIDENCE – evidence sought to be led from witness in mainland China when requirements of Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters not met nor Rules 16.05 or 16.06 satisfied.

The Civil Procedure Law of the People’s Republic of China (1991)
Family Law Act 1975 (Cth) s 44(6)
Family Law Rules 2004 (Cth) rr 16.05, 16.06
Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Opened for signature 18 March 1970. 847 UNTS 231 (entered into force 7 October 1972)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Byron v Southern Star Group Pty Ltd (1995) 123 FLR 352
Cropper v Smith (1884) 26 Ch D 700
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2020] NSWSC 732
Honeysett v The Queen (2014) 253 CLR 122
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Motorola Solutions, Inc v Hytera Communications Corporation Ltd [2020] FCA 539
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Sali v SPC Ltd (1993) 67 ALJR 841
Stanford & Stanford (2012) 247 CLR 108
State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487

APPLICANT:

Ms Moy

RESPONDENT:

Mr Pao

INTERVENOR:

B Pty Ltd

FILE NUMBER:

MLC

6493

2011

DATE DELIVERED:

13 May 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

11, 12 & 13 May 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R. Smith

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr G. Atkinson

SOLICITOR FOR THE RESPONDENT:

PCL Lawyers

COUNSEL FOR THE INTERVENOR:

Ms M. Clarkin

SOLICITOR FOR THE INTERVENOR:

Mcdonald Lawyers

Orders

The trial of this proceeding is adjourned part heard to 13, 14 and 15 October 2021.
On or before 4pm on 20 May 2021 the parties must file a joint timetable for the filing of material on the issue of costs consequent upon this ruling.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moy & Pao has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6493 of 2011

Ms…

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 Moy and Pao (No 3)

Details

AGLC: Moy and Pao (No 3) [2021] FamCA 310
Case: [2021] FamCA 310
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Moy (applicant) and Mr Pao (respondent) were involved in a proceeding concerning property settlement, with B Pty Ltd (intervenor) also a party. The core dispute revolved around the intervenor's attempt to adduce evidence from witnesses located in mainland China. This attempt was complicated by the ongoing COVID-19 pandemic and associated international border closures, which prevented the witnesses from appearing in person.

The primary legal issues before the court were whether the intervenor could adduce evidence from its witnesses in China electronically, and if so, whether the requirements of the *Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters* and Rules 16.05 and 16.06 of the *Family Law Rules 2004* (Cth) had been met. The intervenor sought to rely on affidavits and potentially give evidence via video link, but had failed to comply with the court's previous orders regarding the filing of evidence and had not properly invoked the procedural rules for taking evidence abroad or electronically.

The court found that the intervenor had not satisfied the requirements of Rules 16.05 and 16.06, nor had it met the standards for expert evidence as outlined in cases such as *Dasreef Pty Ltd v Hawchar*. The intervenor's attempts to file affidavits late and without proper affirmation, and its failure to demonstrate compliance with the procedural rules for electronic evidence, were central to the court's decision. The court noted that the intervenor's counsel conceded that compliance with these rules had not been established.

Ultimately, the court adjourned the trial to allow for further consideration of the intervenor's position, but the intervenor's ability to adduce the contested evidence remained uncertain due to the procedural deficiencies. The applicant and respondent proposed a streamlined approach to resolve the core issue of the litigation, which the court considered a sensible way forward.

Orders