Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 13)
[2022] FedCFamC2G 1031
Federal Circuit and Family Court of Australia
(DIVISION 2)
Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 13) [2022] FedCFamC2G 1031
File number(s): SYG 2771 of 2019 Judgment of: JUDGE BAIRD Date of judgment: 30 November 2022 Catchwords: PRACTICE AND PROCEDURE – proposed tenders of two documents – a translation of a Chinese text – a purported original document in Chinese – objections to tender –purported original document provisionally admitted – documents not relevant – document not proved authentic – tenders rejected Legislation: Evidence Act 1995 (Cth) ss 55, 56, 57, 58, 59, 69, 140, 183 Cases cited: Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355
Microsoft Corporation v CPL Notting Hill Pty Ltd (No 7) [2022] FedCFamC2G 590
Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 12) [2022] FedCFamC2G 1030
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of last submission/s: 28 November 2022 Date of hearing: 2-6 August 2021, 9-11 August 2021, 13 August 2021, 19‑20 August 2021, 24‑25 March 2022, 27 April 2022, 14‑17 June 2022, 20-24 June 2022, 27‑28 June 2022, 12 August 2022, 5‑9 September 2022, 28‑30 November 2022, 1‑2 December 2022 Place: Sydney Counsel for the Applicants: Mr J Hennessy SC with Mr C McMeniman Solicitor for the Applicants: Gilbert + Tobin Counsel for the First, Second, Fifteenth and Seventeenth Respondents: Mr E Heerey KC with Mr D Parish Solicitor for the First, Second, Fifteenth and Seventeenth Respondents: H & H Lawyers Counsel for the Sixth Respondent: Mr B Le Plastrier Solicitor for the Sixth Respondent: Gear & Co Lawyers Solicitor for the Ninth and Fourteenth Respondents: Mr S Li, Viska Lawyers Twelfth and Thirteenth Respondents: Ms S Huo appeared for herself and with leave for the Twelfth Respondent Counsel for the Sixteenth Respondent: Mr A Di Francesco Solicitor for the Sixteenth Respondent: HWL Ebsworth REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)Judge Baird
Before me for determination are tenders of two documents put forward by Mr Li, solicitor for the ninth and fourteenth respondents. The applicants object to the admission of these documents into evidence in the proceeding.
The first of these documents is a NAATI‑certified translation into English of what appears to be a screenshot of Chinese text (the Translation). The second document is more correctly comprised of several documents which I provisionally admitted as MFI-42 on 7 September 2022, day 29 of this hearing, and deferred my ruling to a later date, now today. The key document within MFI‑42 is a document that Mr Li contends for his clients is the “wet” original of the Chinese language document the ninth respondent, Ms Yiping Yang, asserts in her affidavit sworn 15 April 2021 (Yang affidavit) at [95] is a loan agreement in Chinese, a copy of which she exhibits to her affidavit at Exhibit YY‑4, pages 1‑4 and identifies as ‘First Jinyuan Loan Agreement’. I will call this purported original document the second document.
MFI‑42 comprises an envelope and its contents sent by registered post from Mr Li to the applicants’ solicitors in purported response to the applicants’ request under s 167 of the Evidence Act 1995 (Cth) for the production of the original of the First Jinyuan Loan Agreement so that its authenticity can be determined. As well as Mr Li’s cover letter dated 25 July 2022, and the second document, MFI‑42 includes two other documents in Chinese each of one page, which Mr Li contends are originals and supportive of the second document. On 7 September 2022 when I provisionally admitted MFI‑42 (and thus the second document) I also provisionally admitted pages 1‑4 of Exhibit YY‑4, which purports to be a copy of the second document.
Mr Li provided some submissions on 7 September 2022 by email to my Chambers, and has made oral submissions today. Mr Li attached to his email a copy of the second document and a further copy of Exhibit YY‑4, pages 1-4 and exhibit cover sheet. Mr McMeniman, junior counsel for the applicants, by his aide memoire dated 13 November 2022, and by oral submissions today has given submissions on behalf of the applicants.
First document – the Translation
I accept the first document sought to be tendered – the Translation - is a NAATI-certified translation of a screenshot of Chinese text.
Mr Li contends that the Chinese text – and thus the Translation - relates to an appeal against conviction he asserts has been lodged by the fifth respondent in this proceeding, Mr Kefei (Emilio) Wang. The Chinese judgment recording Mr Emilio Wang’s conviction is the subject of my judgment in Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 12) [2022] FedCFamC2G 1030.
The Translation is headed “Current Stage Filing on Docket”. The only information as to the date of the document is “case date 1 November 2022”, and the NAATI translation date of 28 November 2022. Mr Li says the document is relevant to Mr Yulin Wang’s answer given in cross‑examination in this Court on 9 September 2022 in the exchange recorded at transcript page 1771 and which, to the extent that it is relied on by the applicants, is encapsulated in the applicants’ closing submissions at [75]. Having regard to these matters, on the basis it is put forward by Mr Li, I do not consider that the document is relevant. For that reason alone, pursuant to ss 55 and 56 of the Evidence Act1995 (Cth), the Translation is rejected.
Were the Translation possibly to be relevant, and the issue of authenticity which is raised then required to be determined, the lack of any evidence on affidavit pursuant to which I could be satisfied as to the origin of the document, or that it is what it purports to be, is such that for myself sitting as the trier of fact, I would not be satisfied that the Translation – or the Chinese text screenshot is authentic or otherwise has any relevance in the proceeding. For that reason, additionally I reject the tender.
Second document – MFI-42
In considered that the second document comprising MFI‑42, and the claimed copy exhibited to the Yang affidavit at Exhibit YY‑4, pages 1‑4, may be relevant on their face pursuant to s 55 of the Evidence Act, and for this reason, were provisionally admitted by me pursuant to s 57 of the Evidence Act. At that time, on the same basis, I also admitted [95] of the Yang affidavit. As I have said, I invited further submissions from Mr Li and counsel for the applicants as to the relevance and authenticity of the documents.
The present objection to admission of MFI‑42 (that is, relevantly the second document) was first raised in Court on 6 September 2022. The time that has passed since then has given Mr Li’s clients considerable time to remedy the ground then raised in objection. Further, in any event Mr Li and his clients would have been on notice of the applicants’ objections to Ms Yang’s affidavit and Exhibit YY‑4 from the applicants’ list of objections notified at least a year earlier. Again, the ninth respondent has had considerable opportunity to remedy the deficiencies notified. This has not occurred.
Mr Li’s client could have filed an affidavit from somebody who could actually attest to the matters Mr Li submits today by way of supposition and guesswork from the Bar table. In the person of Mr McGinn, whom Mr Li’s client proffered as a handwriting expert, Ms Yang has had access to a person who may have been in a position to give evidence concerning the documents, or who could have directed Mr Li to a person who could have given that evidence. No doubt there would have been other experts that could have been used.
The parties’ submissions and consideration
Section 167(c) of the Evidence Act relevantly provides:
167 Requests may be made about certain matters
A party may make a reasonable request to another party for the purposes of determining a question that relates to:
…
(c) the authenticity, identity or admissibility of a document or thing.
The applicants made a request pursuant to s 167 of the Evidence Act for the original of the First Jinyuan Loan Agreement, Exhibit YY‑4, pages 1‑4. Mr Li says that the second document is in late response to that call.
There are a number of differences apparent on the face of the second document when compared with the document that is the First Jinyuan Loan Agreement, Exhibit YY‑4, pages 1‑4. These are summarised at [4] of Mr McMeniman’s aide memoire. Given these differences, the applicants submit that the second document does not satisfy the request under s 167 of the Evidence Act, and it, and the Yang affidavit [95], and exhibit YY‑4, pages 1‑4 must be rejected.
I am very conscious of the time that has been spent today by Mr Li attempting to articulate his clients’ submissions as to why the second document satisfies the s 167 Evidence Act request and is authentic, and why it, [95] of the Yang affidavit, and Exhibit YY‑4, pages 1‑4 should be admitted into evidence. Other than what is apparent from the face of the documents, however, I am not in a position to accept as evidence Mr Li’s conjectures from the Bar table as to what is a “wet” document, what is the original document, or what might be the reasons for the differences apparent on the face of the second document and the face of the First Jinyuan Loan Agreement – that is, the document at Exhibit YY‑4, pages 1‑4.
As I understand them, Mr Li’s submissions may be summarised as follows.
First, the second document is a “wet” document with hand‑affixed seal and hand‑affixed signatures, and Mr Li says that accordingly it is the original purported loan agreement.
There is no evidence before me as to the creation or origin of the second document.
Mr Li’s assertions that the client sent the “original document” that is MFI‑42 – relevantly the second document, by “SF Express” post from China and then Mr Li posted it by registered post to the applicants’ solicitor says absolutely nothing about the creation or origin of MFI‑42 and thus the second document. Mr Li merely describes the most recent handling of that document in order to provide it to the applicants’ solicitors in what I understand to be a late response to a call by the applicants pursuant to s 167 of the Evidence Act for the original document corresponding to the purported copy at Exhibit YY‑4 pages 1‑4.
How the second document got from wherever it was created into Mr Li’s possession is not in evidence that is before the Court. I am prepared to accept, however, Mr Li’s statement that the document was mailed to Mr Li by his client, and that Mr Li then mailed it to the applicants’ solicitors. That explanation is the extent of Mr Li’s attempt at providing admissible evidence in this Court regarding the document and its origin. It does not suffice to establish that the second document is the original document to satisfy the applicants’ s 167 Evidence Act request, or that it is what Ms Yang claims it to be in the Yang affidavit at [95], and at Exhibit YY‑4, pages 1‑4.
Mr Li’s other submissions are:
(a)there are no discrepancies between the documents;
(b)on the ordinary person’s view, comparing the documents, they look exactly the same;
(c)these are the two attached documents that Mr Li has in his possession (by which I understand him to be referring to the attachments to his 7 September 2022 email), not the purported original in MFI‑42, but one which he says is a copy of MFI‑42;
(d)any perceived differences may be because there are different scanning machines used; and
(e)no expert is necessary to compare the two documents because they are prima facie identical.
Contrary to Mr Li’s submission, there are clear visual differences apparent between the second document and Exhibit YY‑4 pages 1 to 4 (and also the further copy emailed by Mr Li to the Court). I have identified a number of these visual differences between the two documents. These differences include at least those differences identified in Mr McMeniman’s aide memoire at [4]. These are apparent on the face of the documents to me as a non‑expert, and as a person who is not conversant in Chinese nor familiar with its script.
As to Mr Li’s assertion that any differences between the two documents are because of differences in scanning machines, this assertion is merely supposition, and without any objective substantiation. If such differences are the result of scanning technology – or otherwise - then it was beholden on Mr Li’s clients to proffer evidence explaining this in admissible form. Throughout this hearing on more than one occasion Mr Li has sought to give evidence from the Bar table. As I have informed him on previous occasions I am not prepared to accept evidence from the Bar table. Whether or not the differences are by reason of one being an original, another being a copy, or as Mr Li says, by being two copies from different scanning machines, I am not in a position to say. The inescapable conclusion is that the documents are inherently unreliable.
Mr Li says further, “Well, if the document is admitted, there is a translation, because the applicants’ witness in response has provided a translation”. This is not a satisfactory answer to make admissible a Chinese language document that being apparently in Chinese is incomprehensible to the Court. That there may be a translation of the document that may be tendered in reply does not answer the request under s 167 Evidence Act, in any event.
As a document that Mr Li’s clients rely on, it is for them to provide any appropriately qualified and admissible translation to assist them in establishing the document’s relevance and admissibility, it is not the responsibility of the applicants or any other party in this proceeding. I apprehend that the applicants’ translation is sought to be tendered responsively - only if the Chinese language document is admitted, and not otherwise. I do not accept that it is the responsibility of a person objecting to the tender of a document to provide a translation of that document in circumstances where neither the party (here the applicants), nor their legal representatives are native Mandarin, Cantonese or Shanghainese speakers or readers.
Mr Li then says, in further expansion of his first submission, to the effect “original for the purposes of [section] 167 [of the Evidence Act] objections is that the document is a wet document executed by hand in person and not a photocopy of that original”. He submits that it is clear from MFI‑42 that the second document is such a document, and therefore the document is an original one. He submits that his clients can be cross‑examined on the source of the document and how it was sent from China, notwithstanding that they have not sought to prove the matter by affidavit and their cross‑examination has been concluded.
Mr Li’s submissions also suffer from false premises as to my expertise in examining a document to conclude it is a “wet” document, and that the second document is original in the sense of being what it purports to be (what Ms Yang claims it to be), rather than just the original photocopy exhibited to the Yang affidavit.
Because of the differences on the faces of the two documents produced to the Court apparent to my non‑expert eye, and because there is no evidence before me that MFI‑42 – relevantly the second document - is the original of the First Jinyuan Loan Agreement as defined by Ms Yang, I do not accept Mr Li’s submission.
Mr Li refers to the propositions discussed by Perram J in Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355 (ACCC v Air New Zealand) at [92] to which I have earlier referred him. Mr Li today submits to the following effect, “It doesn’t matter about authenticity, because that can be argued later”. Mr Li misapprehends the matter. Today, at this point in the final hearing further to provisionally admitting the documents I propose to decide not only the claimed relevance, but whether, given the matters his Honour set out in ACCC v Air New Zealand, both admissibility and authenticity are satisfied.
Recently in Microsoft Corporation v CPL Notting Hill Pty Ltd (No 7) [2022] FedCFamC2G 590, at [487] to [498] I summarised relevant provisions and principles concerning admissibility and authenticity of documents. At [495] I set out Perram J’s propositions in ACCC v Air New Zealand. I incorporate by reference what I said in Microsoft.
Mr McMeniman refers to s 58 of the Evidence Act which sets out inferences the Court may draw as to relevance and also to s 183 Evidence Act, to similar effect. Section 58 of the Evidence Act provides:
Inferences as to relevance
(1)If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including an inference as to its authenticity or identity.
(2)Subsection (1) does not limit the matters from which inference may properly be drawn.
Section 183 of the Evidence Act provides:
Inferences
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may:
(a)examine the document or thing; and
(b)draw any reasonable inferences from it as well as from other matters from which inference may properly be drawn.
Pursuant to s 56 hearsay is not admissible pursuant to the rule against hearsay set out in s 59 Evidence Act, unless one of the statutory exceptions applies. Mr Li has not drawn my attention to any exception, but I am prepared to assume that he might seek to rely on the business records exception in s 69 of the Evidence Act.
I am able to examine the documents and I have considered Ms Yang’s evidence at [95] of her affidavit. As Perram J said at point 13 in his propositions:
13.At no time does the tribunal of law determine that the document is or is not authentic because this is not a question for it. It may, however, determine that no reasonable inference to that effect is open and thereby conclude that it is not relevant. In a jury context, that will be similar to taking the question of authenticity away from the jury. Analytically, it will be the same where the tribunal of fact is a judge.
Considering the matters which I have already raised, for the above reasons, as the tribunal of fact I have further concluded there is no reasonable inference available to find that the second document is authentic and that the fact asserted by Ms Yang at [95] would be proved. Further, I conclude that there is no reasonable inference available that the so‑called First Jinyuan Loan Agreement is a business record of Ms Yang or of some other entity. The document does not satisfy the requirements of the hearsay exception of s 69 of the Evidence Act. It follows that it is not admissible under s 56 of the Evidence Act.
If, however – because I have admitted the documents and [95] provisionally – it is necessary to make positive findings that Exhibit YY‑4 pages 1‑4 to Ms Yang’s affidavit is not what Ms Yang claims it to be, I would conclude for the reasons I have set out above that I am satisfied to the requisite standard in accordance with s 140(2) of the Evidence Act that the purported loan agreement is not what Ms Yang claims it to be. It is not evidence of what she has asserted in the Yang affidavit at [95]. On that basis also, [95] of the Yang affidavit is not admitted.
For the reasons I have already given, the same ruling applies to MFI‑42 as a whole. That is, both pursuant to s 69 and s 56 of the Evidence Act, MFI‑42 is inadmissible, and also further to my being satisfied to the requisite standard in accordance with s 140(2) of the Evidence Act that the second document comprised in MFI‑42 is not the original document or the document Ms Yang claims it to be.
It also follows that the applicants’ request made pursuant to s 167 of the Evidence Act has not been satisfied. The material is not relevant. It is not admitted.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird. Associate:
Dated: 20 December 2022
SCHEDULE OF PARTIES
<SYG 2771 of 2019> Applicants
First Applicant:
SELF CARE CORPORATION PTY LTD
ACN 132 213 113Second Respondent:
SELF CARE IP HOLIDNGS PTY LTD
ACN 134 308 151Respondents
First Respondent:
GREEN FOREST INTERNATIONAL PTY LTD
ACN 607 602 988Second Respondent:
YAOAN (ERIC) CHEN
Third Respondent:
YILIN TRADING PTY LTD
ACN 626 244 479Fourth Respondent:
FREEZEFRAME CHINA CO PTY LTD ACN 621 016 975
Fifth Respondent:
KEFEI (EMILIO) WANG
Sixth Respondent:
PASCAL SKELIN
Seventh Respondent:
EPAQ INTERNATIONAL PTY LTD ACN 608 870 588
Eighth Respondent:
QUANJIAN PTY LTD
Ninth Respondent:
YIPING YANG
Tenth Respondent:
TAOYU PAN
Eleventh Respondent:
KEFEI (IVAN) WANG
Twelfth Respondent:
ZUREN INTERNATIONAL PTY LTD
Thirteenth Respondent:
SIQI HUO
Fourteenth Respondent:
MR YULIN WANG
Fifteenth Respondent:
E-GO CHANNEL PTY LTD
Sixteenth Respondent:
AUSTRALIAN VITAMIN PLUS PTY LTD
Seventeenth Respondent:
YAN (CYNTHIA) LI
0
3
0