Yin v Wu
[2023] VSCA 130
•1 June 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0028 |
| KE YIN | Applicant |
| v | |
| DI WU | Respondent |
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| JUDGES: | KYROU, T FORREST & HARGRAVE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 May 2023 |
| DATE OF JUDGMENT: | 1 June 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 130 |
| JUDGMENT APPEALED FROM: | [2022] VSC 729 (Tsalamandris J) |
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FOREIGN JUDGMENTS – Respondent (plaintiff) obtained judgment from Chinese court against applicant (defendant) – Proceeding to enforce foreign judgment – Application for summary judgment – Summary judgment granted by associate justice – Appeal to Trial Division dismissed – Applicant (defendant) not personally served with process in Chinese court – Service apparently by public notice – No evidence of Chinese law authorising service by public notice – Onus of proof of foreign law in circumstances – Service by electronic means open on evidence but not attempted – Held: defence that applicant (defendant) was denied natural justice had a real prospect of success – Summary judgment for Australian dollar equivalent of Chinese judgment sum set aside – Boele v Norsemeter Holding AS [2002] NSWCA 363; Jeannot v Fuerst (1901) 25 TLR 424; Igra v Igra [1951] P 404; Terrell v Terrell [1971] VR 155; Xu v Wang (2019) 58 VR 536 considered.
SUMMARY JUDGMENT – Restitution claim – Money paid in Chinese currency by respondent (plaintiff) to bank account of applicant (defendant) for purpose of foreign currency exchange – No foreign currency paid – Partial repayment in Chinese currency – Associate justice found entitlement to summary judgment for balance on restitution claim – Appeal to Trial Division dismissed – Whether defence that applicant (defendant) had no access to his bank account because it had been frozen had a real prospect of success – Observations as to relationship between ss 63 and 64 of the Civil Procedure Act 2010 – Held: defence had no real prospect of success – Respondent (plaintiff) entitled to judgment on restitution claim – Spencer v Commonwealth (2010) 241 CLR 118; Trkulja v Google LLC (2018) 263 CLR 149; Hausman v Abigroup Contractors Pty Ltd (2009) 29 VR 213; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 considered.
EVIDENCE – Whether copy bank statements admissible as business records for purpose of summary judgment application – Copy bank statements obtained by Chinese court under enforcement process in that court – Copy statements appeared on face to be records of banking business – Held: copy bank statements admissible – Evidence Act 2008, s 69(1)(a); Matthews v SPI Electricity Pty Ltd (Ruling No 35) [2014] VSC 59 applied.
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| Counsel | |||
| Applicant: | Mr PG Cawthorn KC with Mr M Nguyen | ||
| Respondent: | Mr D Smallbone | ||
Solicitors | |||
| Applicant: | Colin Biggers & Paisley | ||
| Respondent: | Sunfield Chambers Solicitors & Associates | ||
associate
TABLE OF CONTENTS
Factual narrative
(a) Supreme Court proceeding
(b) Wu’s affidavit material
(c) Yin’s affidavit material
Associate Justice’s reasons
Judge’s reasons (appeal to Trial Division)
Proposed grounds of appeal
Ground 1: should summary judgment have been entered on the enforcement claim?
Did the associate justice decide that Wu was entitled to summary judgment on the restitution claim?
Ground 3: Yin did not know and had no dealings with Wu
Ground 4: admissibility of bank statements
Ground 5: Yin’s evidence that his bank accounts had been frozen
Grounds 2 and 6: Was the restitution claim appropriate for determination by summary judgment?
Ground 7: refusal of adjournment to prepare fresh evidence application
Fresh evidence application
Conclusion
KYROU JA
T FORREST JA
HARGRAVE JA:
The applicant for leave to appeal, Ke Yin, is a Chinese national living in Australia. The respondent, Di Wu, is a Chinese national living in China. On 1 November 2018, Wu obtained a judgment against Yin in the People’s Court of Zheijiang Province, Ningbo City, Yinzhou District in the People’s Republic of China (‘Ningbo People’s Court’) for the sum of RMB ¥3,510,015 (‘the Chinese judgment’). The Chinese judgment was obtained on a summary basis without Yin being heard, as he had not been served with the initiating process in the Chinese proceeding or any other documents filed in that proceeding. Instead, apparently pursuant to Chinese law, a public notice directed to Yin was issued in some unknown way. That notice did not come to Yin’s attention.
Wu then commenced a proceeding against Yin in the Trial Division of this Court seeking to enforce the Chinese judgment by judgment of this Court for the Australian dollar equivalent of the Chinese judgment sum (‘enforcement claim’). Alternatively, Wu claimed an amount approximating the Chinese judgment sum from Yin on various alternative causes of action, including a claim for money had and received (‘restitution claim’). After general discovery in the proceeding, Wu applied to an associate justice for summary judgment. The associate justice determined that Yin’s defence to the Chinese judgment enforcement claim did not have a real prospect of success and nor did his defence to the restitution claim. The associate justice gave judgment against Yin on the enforcement claim for the Australian dollar equivalent of the Chinese judgment sum.[1] Yin appealed to a judge of the Trial Division. That appeal was dismissed.[2]
[1]Wu v Yin (Supreme Court of Victoria, Efthim AsJ, 22 October 2021) (‘AsJ Reasons’).
[2]Wu v Yin [2022] VSC 729 (‘Reasons’).
Yin seeks leave to appeal to this Court. He contends that the associate justice and the judge on appeal erred in deciding that his defences to the enforcement claim and the restitution claim had no real prospect of success. Before setting out the issues on appeal to this Court, it is necessary to describe the facts in more detail.
Factual narrative
(a) Supreme Court proceeding
On 19 May 2020, Wu filed an originating motion seeking an order that Yin pay him the Chinese judgment sum, together with interest and costs.[3] The motion was supported by the affidavit of Daocai Wang referred to below.
[3]Reasons, [9].
Subsequently, Wu filed a statement of claim and then a further statement of claim. Wu pleaded various causes of action including a case based on an alleged ‘foreign exchange agreement’, the restitution claim and the enforcement claim. Wu sought judgment against Yin on the foreign exchange agreement claim and the restitution claim for RMB ¥3,469,995, or alternatively on the enforcement claim for the Chinese judgment sum (which was slightly more because it included court fees).[4] The associate justice considered that the essential aspects of the statement of claim, for summary judgment purposes, involved two alternative claims — the enforcement claim and the restitution claim. He summarised the claims in the following terms:[5]
(1)By a foreign exchange agreement made on or before 30 August 2017, Yin promised Wu that he would exchange USD $600,000 of currency of the United States of America for RMB ¥3,966,000 of the People’s Republic of China.
(2)The foreign exchange agreement was made by voice messages, images and other communications between the parties through the use of social media applications known as Twitter, Telegram and WhatsApp between 14 and 30 August 2017.
(3)On 30 August 2017, pursuant to, or in contemplation of, the foreign exchange agreement, Wu arranged for the sum of RMB ¥3,966,000 to be paid into Yin’s Hua Xia Bank account ending in the numbers 987 (‘Hua Xia Bank account #987’). Yin did not pay USD $600,000, or any amount of United States currency to Wu.
(4)On 31 August 2017, Yin repaid RMB ¥496,005 to Wu but has refused or failed to repay the balance of RMB ¥3,469,995 despite demand.
(5)Wu commenced the Chinese proceeding and obtained judgment for the Chinese judgment sum, but Yin has refused or failed to pay that sum.
[4]Ibid [10].
[5]AsJ Reasons, [2].
In his defence to the further statement of claim, Yin denied or did not admit, or pleaded he did not know or could not admit, most of the allegations.[6] He did, however, raise positive defences in paragraphs 1A, 3C, 15A and 44A, and an express denial of engaging in the social media communications alleged to constitute the foreign exchange agreement. Those paragraphs are in the following terms:
[6]Ibid [5]; Reasons, [4].
1A.He does not know the Plaintiff and prior to learning of the Chinese Judgment (as defined in paragraph 14 of the Further Statement of Claim) he has never heard of the Plaintiff.
1.He denies the allegations in paragraph 1 [that he entered into the foreign exchange agreement with Wu] and, further, expressly denies sending the messages set out in the particulars to paragraph 1 and relied upon by the plaintiff in support of the alleged Foreign Exchange Agreement.
…
3C.The defendant says that his bank account number # 987 was frozen by the Chinese Government (as were his other mainland Chinese bank accounts and his [I]CBC Singapore bank account) on a date prior to 30 August 2017 and he was therefore unable to access his accounts in any way and was also unable to withdraw funds.
…
15A.He says further that: (a) he was not served with documents commencing the Chinese proceeding against him or served with any documents relevant to the Chinese proceeding while it was on foot; and (b) first learned of the Chinese Judgment upon receipt of the originating papers in this proceeding in or about June 2020
…
44A.Further, the defendant says enforcement of the Chinese Judgment should be refused because to do so would be contrary to Australian public policy and/or because there was a failure by the Chinese Court in issuing the Chinese Judgment to accord the defendant natural justice.
Particulars
The defendant relies on the matters alleged in paragraphs 1A, 1 and 15A above. Further particulars may be provided subsequent to discovery and prior to trial.
Following a number of interlocutory skirmishes during which the parties filed affidavit material, on 16 June 2021 Wu filed a summons seeking summary judgment. Yin then issued an application for further discovery and inspection of Wu’s mobile phone for the purpose of forensic analysis (‘discovery and inspection application’). These applications were listed for hearing before an associate justice. The associate justice deferred Yin’s discovery and inspection application and dealt only with Wu’s summary judgment application.[7] However, Yin relied on his affidavit material in support of his applications as being relevant to the summary judgment application.
(b) Wu’s affidavit material
[7]Reasons, [15].
In an affidavit affirmed on 3 February 2021, Wu stated that he is a Chinese national who established a business selling car accessories and replacement parts in April 2012.[8] In early 2017, he was concerned about the devaluation of Chinese currency and became interested in exchanging RMB for USD to maintain the value of his assets, but noted that Chinese nationals are subject to foreign currency exchange restrictions.[9] In this context, Wu deposed to the circumstances of the foreign exchange agreement, the transaction, and the Chinese civil and enforcement proceedings.[10] Wu exhibited copies of the social media communications and other documents referred to in his affidavit, including a transcript of recordings of live streaming broadcasts on Twitter. The exhibits included copies of documents in Chinese together with certified English translations.[11]
[8]Ibid [17].
[9]Ibid.
[10]The enforcement proceeding is discussed at [28] below.
[11]Ibid [18].
Wu stated that his Twitter handle is ‘Jason08580’. In July 2017, he first came across a Twitter account with the handle ‘@wangzheng1982’ with the username ‘Jiang Wang Zheng’. Wu stated that the user posted on the account on a daily basis, including videos and live broadcasts of a Chinese man speaking about foreign currency exchange. Wu said that, as the matters being discussed were sensitive in China, he believed the username ‘Jiang Wang Zheng’ was a nickname, and not the real name of the user of the account. Wu stated that after a month or so of reading and watching the live broadcasts from this Twitter account, on 14 August 2017, he contacted the user of the account through the private chat function and indicated that he was interested in conducting a currency exchange from RMB to USD. Wu said that the user of the Twitter account responded quickly to his message, and they thereafter exchanged multiple messages. In addition to communicating via Twitter, Wu said that he exchanged messages with the same person via the applications WhatsApp and later, Telegram.[12]
[12]Ibid [20].
Wu said that on 14 August 2017, he exchanged WhatsApp contact details with the user ‘Jiang Wang Zheng’. He said that from 14 to 15 August 2017, he entered into the foreign exchange agreement with the user via WhatsApp. Wu deposed that his understanding of the foreign exchange agreement from the messages was:
on the basis I provide him with the details of an unencumbered parcel of real property, he would agree to transfer to me the USD equivalent amount of the RMB I was seeking to exchange and that in the event that I did not transfer to him the funds in RMB, he would apply to the Court to seize my property.[13]
[13]Ibid [21].
Wu said that on 15 August 2017, he saved the WhatsApp phone number of user ‘Jiang Wang Zheng’ to the contact list on his mobile phone. He said that, in doing so, he believed Telegram informed him that the same contact details were registered with Telegram and prompted him to add the user as a contact on the Telegram application on his phone. Wu deposed that he then added the contact number to Telegram and observed that the account username was ‘Yin Edwin’. Wu said that thereafter, he began communicating with this person on Telegram.[14]
[14]Ibid [22].
Wu deposed that he further communicated with ‘Yin Edwin’ over the following days via Telegram to clarify the terms of the foreign exchange agreement. Further, on 28 August 2017, Wu stated that he and ‘Yin Edwin’ exchanged messages in respect of the foreign exchange rate. That evening, Wu stated that he received, presumably by Telegram, a copy of a Chinese resident identity card of a male person by the name of Ke Yin, with a residential address of Room 1602, in a building located in Hangzhou City (registered address), together with copies of two property ownership certificates which stated that Ke Yin was the owner of the property at the registered address.[15] The person on the registered identity card looked identical to the person he had previously observed in the live broadcasts on the ‘Jiang Wang Zheng’ Twitter account.[16]
[15]Ibid [23].
[16]Ibid [24].
From 28 to 29 August 2017, Wu stated that he transferred a total of RMB ¥4,000,000 to his cousin’s (Mr Yong Yong Xu) China Construction Bank Account, which ended in the numbers 315 (‘cousin’s bank account #315’), in four separate RMB ¥1,000,000 instalments.[17]
[17]Ibid [25].
Wu stated that on 29 August 2017, he exchanged further messages via Telegram with ‘Yin Edwin’, including receiving a voice message from ‘Yin Edwin’ requesting details of Wu’s bank account. He recognised the voice as the speaker from the live broadcasts on the ‘Jiang Wang Zheng’ Twitter account. In response to the voice message, he sent a photo of his bank card and two images containing the details of his bank account.[18] Shortly after this exchange, he received a message from a second WhatsApp account ending in the numbers 3444 (‘second WhatsApp account’), which he believed was a continuation of the previous Telegram exchange between himself and ‘Yin Edwin’ regarding the number of instalments in which he should transfer the RMB.[19] During this period, he understood that he was communicating with the person known to him from the identity card as Mr Ke Yin.[20]
[18]Ibid [26].
[19]Ibid [27].
[20]Ibid [29].
On 30 August 2017, Wu stated that he received Yin’s bank account details by a message from the second WhatsApp account. Later that day, he caused a sum of RMB ¥50,000 to be transferred from his cousin’s bank account #315 to Yin’s Hua Xia Bank account #987 and sent a remittance slip to the second WhatsApp account.[21]
[21]Ibid [30].
Wu claims that shortly after that sum was transferred, he learned of a sharp fall in the currency exchange rate and sought to have the RMB ¥50,000 refunded by sending a message to the second WhatsApp account. Very soon thereafter, Wu stated he received a screenshot from the second WhatsApp account of a remittance indicating that the RMB ¥50,000 had been transferred back to his cousin’s bank account #315.[22]
[22]Ibid [31].
At approximately 2:16 pm on 30 August 2017, following further negotiations by WhatsApp as to the rate of exchange, Wu stated that he caused RMB ¥3,966,000 to be transferred from his cousin’s bank account #315, to Yin’s Hua Xia Bank account #987, and that he sent a screenshot of the remittance slip to the second WhatsApp account.[23] Following this payment, he sent a message to the second WhatsApp account enquiring whether the funds had been received, and was advised ‘[h]asn’t arrived yet.’[24]
[23]Ibid [32].
[24]Ibid [33].
Thereafter, Wu deposed that he sent multiple WhatsApp messages to Yin seeking confirmation that the RMB ¥3,966,000 had been received, and that Yin replied that the money had not been received. This caused him ‘great concern’.[25]
[25]Ibid [34].
Wu then deposed that at 6:13 pm on 30 August 2017, he received a message from a different WhatsApp account ending in the numbers 8765 (‘third WhatsApp account’) to the following effect: ‘I will also take responsibility for this USD $600K. I, Ye Kin, will take responsibility.’[26]
[26]Ibid.
At 3:41 pm on 31 August 2017, Wu stated that he received a message from the third WhatsApp account, which he believed was sent by Yin. Wu stated that he understood the message to mean that Yin was offering him a complete refund of the RMB ¥3,966,000, that he no longer wanted to proceed with the foreign exchange agreement, and instead sought to return the money to him. He understood the offer to mean that Yin had received the RMB ¥3,966,000 and sought to return the funds in their entirety as he could no longer sell Wu the USD. Wu stated that he accepted this offer, and that he responded to the third WhatsApp account and provided the details of his cousin’s bank account #315.[27]
[27]Ibid [35]–[36].
At 5:19 pm on 31 August 2017, Wu stated that he received a screenshot from the third WhatsApp account showing a bank transaction in the sum of RMB ¥496,005 as having been refunded to his cousin’s bank account #315. He confirmed that this amount was received.[28] In respect of the remaining RMB ¥3,499,995, Wu stated that he exchanged further messages with the third WhatsApp account seeking the immediate return of that sum. He also sent numerous messages via Twitter, Telegram, and the other WhatsApp accounts.[29]
[28]Ibid [37].
[29]Ibid [38].
Wu stated that he stopped receiving messages from all of those social media accounts on 31 August 2017.[30]
[30]Ibid [39].
Wu stated that he thereafter approached police as he believed he had been ‘defrauded’, but was advised that the police could not assist as it was a ‘civil matter between [Yin] and [himself]’.[31]
[31]Ibid [40].
Although not stated in Wu’s affidavit, in the interests of recording the relevant chronology it should be noted here that Yin produced, as an exhibit to one of his affidavits, a Twitter post or message which he read on 1 September 2017 (‘1 September Twitter post’). Although not stated in the affidavit, and it is unclear from the translation produced, it was common ground that this post was made by Wu. The post is in the following terms:
Yin Ke, you are a complete scammer, I will show the evidence one by one, don’t block me if you have the ability. Let everyone see, I hope you will not become the second me. I sent you a remittance of 3,966,000 U.S. dollars to the account immediately, but falsely claimed that the account was blocked and the payment was delayed, and you stole my money and swiped the card overseas to buy financial products.[32]
[32]Ibid [56].
Returning to Wu’s affidavit, he stated that, also on 1 September 2017, he watched a live broadcast on the ‘Jiang Wang Zheng’ Twitter account in which Yin discussed the foreign exchange agreement (‘1 September Twitter broadcast’).[33] Importantly, in the 1 September Twitter broadcast Yin made the following statements and admissions concerning his knowledge of the alleged foreign exchange agreement, the receipt of the RMB ¥3,966,000 into his Hua Xia Bank account #987 and the circumstances of the partial repayment of RMB ¥496,005:
(1)Yin commenced the broadcast by asking the ‘people behind Yong Yong Xu’ (Wu’s cousin from whose bank account the RMB ¥3,966,000 was paid) to ‘please quit your stupid behaviour’.
(2)With apparent reference to the contemplated foreign exchange agreement, albeit without stating who he was dealing with, Yin said that he ‘told him clearly at the beginning to do it in one lot but it cannot be too large … [y]et he wired to me three million nine hundred and sixty six thousand …’ Yin then stated that ‘this lot of money didn’t come through to my account … Huaxia Bank told me they recorded it, but their headquarters didn’t release this money to me. I don’t know why either.’
(3)Because Hua Xia Bank did not release the money to him, ‘for the sake of testing this account, I wired one million from ICBC Bank to my Huaxia Bank. When this money arrived, I wired it out immediately’.[34]
(4)Next, Yin said that he ‘then wired him four hundred and ninety six thousand and five’. Yin said that he then communicated ‘with him’ that he would ‘wire one million back to you directly’, but that ‘he simply started to freeze my account’.
(5)Yin said that all of his other accounts had previously been frozen by ‘those Communists Bandits … through administrative means,’ and that he believed it was ‘the people behind this person Yong Yong Xu’ who somehow debited his accounts online. These aspects of Yin’s statements in the broadcast are disjointed and difficult to follow. However, they contain a clear complaint by Yin that the Hua Xia Bank account #987 was not frozen at the time of Wu’s payment of RMB ¥3,966,000 into the Hua Xia Bank account #987, but that ‘the people behind’ Yong Yong Xu had brought about the situation that this account became frozen.
[33]Ibid [41].
[34]Emphasis added.
On 13 October 2017, Wu commenced a civil proceeding against Yin in the Ningbo People’s Court. The Chinese judgment was handed down on 1 November 2018. Wu obtained judgment for RMB ¥3,469,995, plus court costs, making a total of RMB ¥3,510,015.[35] Wu produced a copy of the Chinese judgment as an exhibit. Relevantly, that judgment records that the basis on which Wu made his claim was an illegal foreign exchange transaction which was accordingly ‘invalidated’ and unenforceable, but that the money paid by Wu to Yin, less the amount paid, should nevertheless be returned to Wu.
[35]Reasons, [42].
The Chinese judgment records that: ‘[t]he defendant [Yin] failed to attend despite having been legally summoned to attend. As such, the court shall enter default judgment according to the law. … Any party dissatisfied with this judgment may, within 15 days from the date of service of the written judgment, file an appeal …’
Wu stated that he subsequently commenced an enforcement proceeding against Yin. In the course of that proceeding, Wu stated that he obtained copies of Yin’s bank statements which showed that on 30 August 2017, after the RMB ¥3,966,000 had cleared in Yin’s Hua Xia Bank account #987, a sum of RMB ¥3,500,000 was transferred into another bank account held by Yin with the Industrial and Commercial Bank of China ending in the numbers 770 (‘ICBC Bank account #770’).[36] The bank statement for the ICBC account #770 records that this amount was then transferred on the same day to Yin’s ICBC account #706. There are then many further transactions recorded on each of these three accounts. By 2 September 2017, the Hua Xia Bank account #987 was reduced to RMB ¥29.99.
[36]Ibid [43].
In a further affidavit affirmed on 4 August 2021, Wu deposed to the manner in which he had obtained copies of Yin’s bank account statements in the course of the Chinese enforcement proceeding, which he said were sent to him from the chambers of the presiding judge.[37] Wu explained in this affidavit:
4.In my Affidavit affirmed 3 February 2021, I exhibited copies of bank statements of the Defendant’s bank accounts #987, #706 and #770 as part of the Exhibit DW-3 to that Affidavit. I obtained these documents from Ningbo People’s Court through the enforcement proceeding of the Chinese Proceedings which are the subject of these proceedings (“Enforcement Proceeding”). The following paragraphs are an account of how I acquired the documents.
5.On 27 July 2020 at 6:18 PM, I logged on to WeChat “[Mandarin text] (Zhang Shang Fa Ting)”, translated as ‘Palm Court’, an online court mini program built within the WeChat application, on my phone and selected the virtual court room for the Enforcement Proceeding (reference number (2019) [Mandarin text] 0212 [Mandarin text] 2485, translated as “(2019) Zhejiang 0212 Enforcement 2485)”.
6.On 27 July 2020 at 6:40 PM, I sent a text submission in the virtual court room to the Presiding Judge Qionglin Zhang requesting, inter alia, the Defendant’s bank documents and bank statements for the account #987 from 1 August 2017 to 30 September 2017. At 7:16 PM, His Honour replied that the Court will conduct a search for the requested documents that week. At 7:49 PM, I stated that I wanted the requested documents posted to my address at [address stated in Ningbo China].
7.On 30 July 2020 at 2:26 AM, I sent a text submission to His Honour Judge Zhang in the virtual courtroom following up on the progress of my above request. At 8:32 AM, his honour Zhang replied that the documents had been posted and should be delivered on that day. …
8.On 30 July 2020, I received from mail the bundle of documents mentioned in para 6–7 above. …
9.On 5 August 2021 at 8:03 AM, I sent a text submission to His Honour Judge Zhang in the virtual courtroom noting that the bank statements received showed that, after receiving a sum of RMB 3,966,000 from me on 30 August 2017, the Defendant transferred a sum of RMB 3,500,000 from his bank account #987 to his bank account #770, and received a sum of RMB 1,000,000 from his bank account #706. I requested the bank documents and bank statements for the accounts #770 and #706 from the dates they were opened to 3 August 2020. …
10.On 18 August 2020, I received from mail the two bundles of documents mentioned in para 9 above.[38]
[37]Ibid [52].
[38]AsJ Reasons, [19].
The court file also included an affidavit of Mr Daocai Wang, who was a solicitor with carriage of the matter on behalf of Wu (‘the Wang affidavit’). This affidavit was not relied on before the associate justice, but was in the court book prepared for the purposes of the appeal to the Trial Division and the exhibits to it were referred to by both parties in the hearing before this Court. The Wang affidavit had been filed together with the originating motion. By the Wang affidavit, Mr Wang exhibited numerous documents relevant to the Chinese civil proceeding with copies in both Chinese and certified English translations of each document. This included a copy of the complaint in Wu’s Chinese civil proceeding.[39] That complaint wrongly characterised the dealings between the parties as a loan from Wu to Yin. That wrong characterisation was presumably deliberate because of the illegal nature of the alleged foreign exchange transaction.
[39]Reasons, [44].
Mr Wang stated that he had been informed by Wu and believed that the Ningbo People’s Court had arranged for the Hangzhou City People’s Court to serve a copy of the complaint on Yin at the registered address listed on Yin’s Chinese resident identity card, as that address was located within the Hangzhou City People’s Court’s jurisdiction. Mr Wang exhibited a copy of the letter of request sent from the Ningbo People’s Court to the Hangzhou City People’s Court, and the response from the Hangzhou City People’s Court certifying that it had not been able to serve the documents as Yin had been ‘outside for a long time’. Mr Wang also exhibited a certified English translation of the Ningbo People’s Court’s ‘Notice of Change of Procedure’ in the Chinese civil proceeding dated 5 December 2017. That notice stated that ‘service to [Yin was] to be done by way of public announcement, according to the provisions of the Opinions of the Supreme People’s Court on Several Issues Concerning the Application of the Civil Procedure Law of the People’s Republic of China and [pursuant to] the provisions of the Supreme People’s Court on Several Provisions Concerning the Application of Summary Procedure in the Trial of Civil Matters, the Court decides to try the case by applying ordinary procedure instead’. Further, in a separate civil ruling of the same date, it was found that as Yin’s whereabouts were unknown, the case would not be dealt with by way of summary procedure and would instead proceed by way of ordinary procedure.[40] The ordinary procedure was not explained in the ruling.
[40]Ibid [45].
Mr Wang also exhibited a certified English translation of the ‘Public Notice’ to Yin by the Ningbo People’s Court on 28 December 2017, which stated:
In relation to the private loan dispute between the plaintiff Wu Di and defendant Yin Ke, you are now, by way of public notice, served with the Complaint and a copy of the evidence, notice to attend, notice to adduce evidence, risk reminder, summons to attend court, notice of change of procedure, civil ruling and the letter of notice. You are deemed to have been served with the said documents after sixty days from the date of this public notice.[41]
[41]Ibid [46].
The Public Notice stated that the matter was listed for hearing on 23 March 2018 and that judgment would be entered ‘in accordance with the law’, if the time requirements contained in the notice were not met.[42] Mr Wang did not give any evidence as to how the Public Notice was published.
[42]Ibid [47].
Mr Wang also exhibited a certified English translation of a further public notice given on 29 August 2018, which listed the matter for hearing on 1 November 2018.[43]
(c) Yin’s affidavit material
[43]Ibid [48].
Relevantly, Yin’s affidavits were in the following terms:
AFFIDAVIT OF KE YIN AFFIRMED 13 JULY 2020
1.I am the Defendant in this proceeding. I make this affidavit in support of the application for security for costs filed today in this proceeding.
Background
2.I am a Chinese asylum seeker residing in Australia under a protection visa.
3.I have read the Affidavit of Daocai Wang sworn 4 May 2020.
4.I deny any liability to the Plaintiff.
5.The basis for the asserted liability appears to me to be contained in [the facts stated in the Chinese judgment]. Those pages say that I entered into a transaction in the sum of 3,966,000 yuan with the Plaintiff on 30 August 2017. I deny I did so.
6.I do not know the Plaintiff. Further, at the time the transaction is said to have been made, I was living in Singapore and all of my bank accounts in mainland China, as well as my [I]CBC Singapore bank account [#770] had been frozen by the Chinese Government. My accounts were frozen in April/May 2017, due to the same activities that caused me to seek political asylum in Australia under a protection visa.
7.I was never served with the Chinese proceeding. I knew nothing about it at the relevant time. I first became aware that a judgment had been given against me in China in September 2017 when I read about it on a Chinese government Twitter account.
8.If the Chinese proceeding had been brought to my attention, then I could not and would not have defended it. This is because if I had returned to mainland China, I believe I would have been imprisoned because of the activities that I have carried out that are against the interests of the Chinese Government.
…
AFFIDAVIT OF KE YIN AFFIRMED 30 NOVEMBER 2020
…
2.Paragraph 7 of my previous Affidavit [affirmed 13 July 2020] in the second sentence said:
“I first became aware that a judgment had been given against me in China in September 2017 when I read about it on a Chinese government Twitter account.”
3.I affirmed the Affidavit after it had been translated for me by Zhongnan Hu. The abovementioned sentence is incorrect.
4. What I meant to say was that:
“I first became aware of the transaction the subject of this proceeding in September 2017 when I read about it on a Twitter account.”
Now produced and shown to me and marked with the letters “KY-1” is a true copy of the [1 September Twitter post] which brought the transaction to my attention.
5.After I read the [1 September Twitter post], I tried to log in to my Hua Xia Bank Account number #987. This is the bank account that had been frozen by the Chinese Government in or about April or May 2017. I was prevented from logging into that bank account and could make no transactions from that account.
6.I first learnt of the Chinese judgement when I was served with this proceeding on 13 June 2020.
AFFIDAVIT OF KE YIN AFFIRMED 1 SEPTEMBER 2021
1.I am the Defendant in this Proceeding and make this my Affidavit in response to the Affidavit of Dickson Luo affirmed 3 August 2021 and the Affidavits of Di Wu affirmed 4 August 2021 [concerning Wu’s requests that Yin produce an unredacted version of his passport and documents filed in support of his Australian visa application].
Personal identity documents accessible online
2.In the Affidavit of Dickson Luo affirmed 3 August 2021, Mr Luo deposes to my passport being readily accessible and available to view online.
3.I first learnt that an image of my passport was online in April or May 2017 after I found it on Twitter. I did not upload an image or copy of my passport to the internet. I have never given any person permission to do so. I am distressed that my personal information has been made available without my knowledge or consent. I am concerned that my passport has been published by the Chinese Communist Party or by a person associated with the Chinese Communist Party because I have been outspoken in my criticism of the Chinese Communist Party. My concern about the involvement of the Chinese Communist Party is also founded upon the actions taken in respect of my parents in China, as described further below.
Documents sought from the Department of Home Affairs
4.In the Affidavit of Di Wu affirmed 4 August 2021, Mr Wu deposes to requiring documents sought from the Department of Home Affairs by Subpoena dated 9 June 2021, to confirm whether my mother’s name is Xiaochun Jiang.
5.I confirm that my mother’s name is Xiaochun Jiang.
6.I am very concerned that should the documents from the Department of Home Affairs be disclosed in this Proceeding, that my family and close associates in China will be persecuted. I am also concerned about documents containing highly personal and sensitive information, such as my visa application, finding their way onto the internet in the same way my passport is now on the internet.
7.As deposed below, my parents’ bank accounts were frozen in May or June 2017 and on 4 January 2020 my mother was charged with Endangering National Public Safety and then granted bail subject to home supervision. I believe these actions have been taken against my parents because of my public criticism against the Chinese Communist Party.
8.Since the commencement of this proceeding there have been a number of messages posted on Twitter about what has occurred in this proceeding. Those messages on Twitter have included my home address. Although I cannot prove who is responsible for these messages being posted, I am concerned the Chinese Communist Party has been involved in some way. That is because I have been outspoken in my criticism of the Chinese Communist Party and I am familiar with the way the Chinese Communist Party tries in various ways to impose pressure on Chinese citizens who, like me, are openly critical of the Party. ...
Transactions and Bank Statements
9.I have considered the transactions referred to in paragraph 13 of the Di Wu Affidavit affirmed 4 August 2021. I did not make the transactions referred to on pages 107 and 108 [being transfers to Yin’s ICBC account #770 from his mother in February and March 2017 and a transfer from that account to another of Yin’s accounts]. That account was frozen in early 2017 and in any event, I had ceased to use that account … from September or October 2016. I did so for three reasons being:
9.1.From late 2015 I had been approached by the National Security Department in China for money.
9.2.From September or October 2016 I had decided that I was going to live outside of mainland China and so I started to use bank accounts that were not mainland Chinese bank accounts.
9.3.My sources of income from early 2016 were no longer from within mainland China.
10.In early January 2020 my mother, Xiaochun Jiang, was charged with Endangering National Public Safety in China. Since that time she has been monitored at her home on bail. I am informed by my parents and believe that their bank accounts in China have been frozen since May or June 2017. I believe those accounts were frozen by the Chinese Communist Party government (or at its direction) because of my public criticism of the Party.
11.I have considered the transactions referred to in paragraphs 14 and 17 of the Di Wu Affidavit affirmed 4 August 2021 [being transactions in early 2017 on another of Yin’s accounts]. As with account number #770 referred to in paragraph 9, I ceased using this account in about September or October 2016.
12.In relation to paragraph 16 of the Plaintiff’s Submissions dated 30 August 2021 [to the effect that Yin had not deposed to or produced any written communications to or from his bankers to support his allegation that his accounts had been frozen], I tried to contact the bank because I could not log in. The bank staff informed me that I would need to return to China and attend the branch to resolve this issue.
13.On 1 September 2017 when I ascertained that my bank account #987 was frozen, I took a video of myself trying to log into my account. That video is document number 5 of my Affidavit of Documents affirmed 14 May 2021. As I have been unable to log into my account I am not able to access documents and bank account records. The bank account records are referred to in item 4 to Schedule 2 of my Affidavit of Documents affirmed 14 May 2021.
In Yin’s affidavit of documents dated 14 May 2021, he stated that he had not been able to access bank records relating to his Chinese bank accounts. He stated that, as his Hua Xia Bank account #987 was frozen by the Chinese government from about April or May 2017, he did not have access to the records. Further, he stated that his two accounts with the Industrial and Commercial Bank of China (ICBC Bank accounts #706 and #770) were frozen by the Chinese Government in or around early 2017.[44]
[44]Ibid [59].
In this affidavit, Yin listed a video which he said he took of himself attempting to log on to his Hua Xia Bank account #987 on 1 September 2017 as a relevant document. A screen shot of the computer screen and the message it conveyed was subsequently exhibited to an affidavit of Wu’s solicitor, and the English translation of the message is as follows:
Security note:
The content you have entered seems to have been tampered with.
Please check it.[45]
[45]Ibid [60]–[61].
In this affidavit, Yin also acknowledged that his Twitter handles included ‘wangzheng1982’ and ‘jingwangzheng’ and stated that these had been suspended in approximately December 2017 and June 2018 respectively.[46]
[46]Ibid [62].
In Yin’s affidavit affirmed 1 September 2021, he stated that he denied making any of the bank transactions referred to by Wu in his affidavit of 4 August 2021. He again deposed that the relevant bank account (ICBC Bank account #770) was frozen in ‘early 2017’ and that he had ceased using the account in September or October 2016. Yin stated that he tried to contact the bank because he could not log in to the account and deposed that he was informed by bank staff that he would need to return to China and attend the branch to resolve the issue.[47]
[47]Ibid [63].
Yin also relied upon an affidavit sworn by his solicitor, Mr Andrew Stops, on 15 July 2021 (‘the Stops affidavit’). In that affidavit, Mr Stops stated that based upon a review of documents discovered by Wu he had undertaken, he considered there were some irregularities in the alleged electronic communications between Wu and Yin. Such irregularities included the identity of who downloaded the documents, an incorrect phone number associated with a social media account, concerns as to whether a video of Wu scrolling through his communications with Yin on his mobile phone had been edited, concerns there was incomplete metadata in relation to the Telegram messages, and the fact that there were no documents discovered from any ‘WeChat’ messages. Stops asserted that Yin required access to Wu’s phone(s) to enable Yin to obtain access and test the accuracy of relevant metadata, which was said to be essential to his defence.[48]
[48]Ibid [66].
After the Stops affidavit, Yin filed a further affidavit dated 29 July 2021, in which he denied Wu’s claims in the proceeding, referred to the Stops affidavit and deposed that he could not provide ‘better instructions for a better defence’ until the issues set out in the Stops affidavit ‘are resolved’.
We turn to consider the reasons of the associate justice and the judge on appeal.
Associate Justice’s reasons
The associate justice described the issues in broad detail,[49] and then set out ss 61 and 63 of the Civil Procedure Act 2010 (‘CPA’), which are in the following terms:
[49]AsJ Reasons, [1]–[5].
61 Plaintiff may apply for summary judgment in proceeding
A plaintiff in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a defendant’s defence or part of that defence has no real prospect of success.
...
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c)on the court’s own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
The associate justice then set out the law relating to the test applicable in determining whether a defence has no real prospect of success by reference to this Court’s decision in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[50] in the following terms:
Upon the present state of authority:
(a)the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[51]
[50](2013) 42 VR 27; [2013] VSCA 158 (‘Lysaght’).
[51]AsJ Reasons, [8], citing Lysaght (2013) 42 VR 27, 40 [35]; [2013] VSCA 158 (Warren CJ and Nettle JA, Neave JA agreeing at [36]).
Next,[52] the associate justice referred to this Court’s decision in Hausman v Abigroup Contractors Pty Ltd,[53] where the Court stated:
The defendant must satisfy the court that, in respect of the claim to which the application for judgment relates, a question ought to be tried, or there ought for some other reason to be a trial of that claim. The court, if so satisfied, will give the defendant leave to defend and the proceeding will continue to trial in the ordinary way. The court will normally require an affidavit by, or on behalf of, the defendant before it will be satisfied that the defendant is entitled to leave to defend. The standard of diligence required of the defendant in preparing a case in opposition to the application, especially if under pressure of time, is perhaps not as high as that required in preparing for trial.
None the less, the defendant is required to use reasonable diligence to put before the court, albeit in a summary form, all the evidence relied on in the defence. In that regard, it would generally be regarded as an injustice to the plaintiff to allow the defendant to introduce for the first time, on appeal, evidence which was readily available for the hearing of the application, but was not produced. An affidavit filed by the defendant may contain a statement of fact based on information and belief.
The authorities suggest that an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff’s claim and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.[54]
[52]AsJ Reasons, [9].
[53](2009) 29 VR 213; [2009] VSCA 288 (‘Hausman’).
[54]Ibid 225–6 [63]–[65] (Weinberg and Bongiorno JJA, Williams AJA) (citations omitted).
Hausman was a case emphasised by counsel for Wu in the hearing before the associate justice, in support of the submission that the defence filed by Yin was only a bare denial and did not contain sufficient particulars to enable the defence case to be properly understood. The associate justice viewed Yin’s defence and affidavit evidence against this standard. In summary, the associate justice considered that the denials, non‑admissions and positive defences pleaded by Yin amounted to bald denials and bare assertions without particulars and there was no prospect that the defence to the restitution claim would succeed. The associate justice reached his conclusions in this regard by the following process of reasoning.
The associate justice commenced by considering Yin’s defences to the restitution claim which were pleaded in paragraphs 1A, 1 and 3C of the defence[55] and the affidavits of Yin in support of those defences.
[55]Paragraphs 1A, 1 and 3C of Yin’s defence are set out at [6] above.
The associate justice’s reasons for determining that paragraphs 1A, 1 and 3C of the defence, and Yin’s affidavit evidence relevant to it, did not give rise to a reasonable prospect that Yin’s defence to the restitution claim would succeed at trial were brief. It appears that the process of reasoning was as follows.
First, although there was nothing in the 1 September Twitter post to indicate the identity of the person who posted it, and Yin had deposed that ‘he first heard of the transaction when he received that Twitter post’,[56] the fact that Yin did ‘not swear in any affidavit that he did not know who the sender of that post was, nor does he say that [the] tweet was received in error’,[57] meant that paragraph 1A of the defence and the evidence in support of it, that Yin did not know Wu and had never heard of him prior to learning of the Chinese judgment, was a defence which ‘goes nowhere’ because ‘[a]ll it contains is a bare assertion which is not backed by evidence’.[58]
[56] AsJ Reasons, [16].
[57]Ibid.
[58]Ibid.
Second, as to the defence in paragraph 3C, that the relevant bank accounts in Yin’s name had been frozen at relevant times and he had been unable to access those accounts in any way so as to withdraw funds, the associate justice treated the copy bank statements obtained by Wu from the Chinese court as determinative. The associate justice reasoned that Yin’s evidence that the relevant accounts were frozen did not ‘challenge the authenticity’ of the copy bank statements,[59] and questioned Yin’s sworn evidence that the accounts were frozen on the basis that Yin had not disclosed in his affidavit of documents any document constituting ‘any communication from the Chinese government or his bankers, whether in China or Singapore, giving notice that his accounts were frozen [and nor was there any document evidencing] enquiry of his own bank or [any] bank statements’.[60] On this basis, the associate justice treated the defence based on frozen bank accounts as ‘[a]t best … merely an allegation that the records may not be authentic’.[61]
[59]Ibid [25].
[60]Ibid.
[61]Ibid.
The associate justice then rejected the challenge to the authenticity of the copy bank statements on two grounds. First, if the bank statements were not authentic ‘they would necessarily be false and may lead to a conclusion that there is fraudulent conduct … [and] fraud was not alleged’.[62] Second, the associate justice accepted Wu’s evidence as to how he obtained the copy bank statements as a sufficient basis for them to be admissible as business records which demonstrated ‘that the payment was made to [Yin] and [Yin] moved the payment to another account which was also his’.[63] On this basis, the associate justice concluded that Yin’s defence that his relevant bank accounts were frozen was, although supported by sworn evidence, ‘nothing other than a bare assertion’.[64] In other words, the associate justice rejected Yin’s sworn evidence on the basis of inferences arising from his failure to discover documents which the associate justice considered ought to exist if his bank accounts had indeed been frozen.
[62]Ibid.
[63]Ibid [26].
[64]Ibid.
The associate justice then considered the claim for summary judgment on the enforcement claim. First, he considered paragraph 44A of the defence. Relevantly, paragraph 44A alleges that enforcement of the Chinese judgment should be refused because there was a failure by the Chinese court to accord natural justice to Yin. The particulars of that defence refer to paragraphs 1A, 1 and 15A of the defence, which are set out above.[65] The associate justice noted the evidence of Yin that he had not been served with any of the court documents in the Chinese proceeding and first learned of it when he was served with the originating papers ©n the current proceeding.[66]
[65]Paragraphs 1A, 1 and 15A of Yin’s defence are set out at [6] above.
[66]AsJ Reasons, [28].
The associate justice first reasoned that the Chinese court had jurisdictional competence because Yin was using a Chinese passport during the time that the proceeding was before the Chinese court.[67] That finding is uncontroversial on this application.
[67]Ibid [31]–[32], citing Liu v Ma (2017) 55 VR 104, 106 [6] (Mukhtar AsJ); [2017] VSC 810.
As to Yin’s evidence that he had not been served with the documents in the Chinese civil and enforcement proceedings, and had thus been denied natural justice in those proceedings, the associate justice apparently reasoned as follows. First, in the translation of the Chinese judgment it is stated that Yin ‘failed to attend [the hearing] despite having been legally summoned to attend’.[68] On this basis, the associate justice considered that it was for Yin to prove that ‘he knew nothing about the hearing at the relevant time’.[69] The associate justice did not explain why Yin’s sworn evidence that he had not been served with any of the court documents and did not know of the Chinese proceedings until he was served with the documents in the current proceeding was not proof that he knew nothing about the hearing at the relevant time.
[68]AsJ Reasons, [33].
[69]Ibid [34].
Second,[70] the associate justice referred to the decision of the New South Wales Court of Appeal in Boele v Norsemeter Holding AS,[71] where Giles JA (Handley and Beazley JJA agreeing) said:
In determining whether due notice has been given regard will be had to the notice provisions of the foreign court: for example, notification not by personal service but in accordance with the rules of the foreign court may be held to be consistent with affording natural justice even if not in accord with notice provisions of the forum (see Jeannot v Fuerst (1909) 25 TLR 424; Igra v Igra (1951) P 404; Terrell v Terrell (1971) VR 155).[72]
[70]Ibid [35].
[71][2002] NSWCA 363 (‘Boele’).
[72]Ibid [28] (Giles JA, Handley and Beazley JJA agreeing at [1] and [2] respectively) (emphasis added).
On the basis of this statement, and because of the statement in the Chinese judgment that Yin had been ‘legally summoned’, the associate justice took the view that the onus was on Yin to establish by evidence that ‘the Chinese court has not acted in accordance with its rules … [or] that the Chinese court has failed to follow its own law and procedure’.[73] As Yin had not produced such evidence, the associate justice concluded that there was ‘nothing before the Court to demonstrate that [Yin] has not been provided with procedural fairness’.[74]
[73]AsJ Reasons, [36].
[74]Ibid [34].
Finally, the associate justice referred to the case of Jamieson v Robb[75] to support his conclusions on the enforcement of the Chinese judgment issue, on the basis that it was said to provide an example of a case where failure of proceedings to come to the actual notice of a defendant ‘does not impeach a jurisdictional competence that otherwise exists in a foreign court’.[76] The case concerned a plaintiff who had signed a memorandum of association of a company. The memorandum contained a provision that proceedings might be taken against him in his absence and without notice to him. Moreover, the relevant Companies Act applying to the company contained a provision that such proceedings could be heard ex parte and without notice to the contributories. The Full Court recognised the foreign judgment on the basis that the case concerned jurisdiction rather than natural justice. The case was obviously irrelevant to the issue before the associate justice, but, as it appears as a separate point after the issue had been determined against Yin there is no need to further consider the associate justice’s reference to this case.
[75](1881) 7 VLR (L) 170.
[76]AsJ Reasons, [39].
Judge’s reasons (appeal to Trial Division)
Yin’s grounds of appeal to the Trial Division were in the following terms:
1.The primary judge erred in holding that paragraph 3C of the Defence was not supported by evidence capable of supporting the allegations and thus had no real prospect of success ([AsJ Reasons] at [25]–[26]).
2.The primary judge erred in holding that the bank records produced by the plaintiff were admissible as business records ([AsJ Reasons] at [26]):
(a)without the defendant having the opportunity to put the plaintiff to proof as to their provenance; and
(b)without providing adequate reasons for finding that the criteria in s 69(1)(a) of the Evidence Act 2008 (Vic) were satisfied.
3. The primary judge erred in ([AsJ Reasons] at [16]):
(a)holding that the defendant had not adduced evidence or alleged facts capable of supporting the allegations in paragraph 1A of the Defence, including by failing to take into account the defendant’s evidence of inconsistencies and irregularities in the documents adduced by the plaintiff to support the alleged foreign exchange agreement; and
(b)placing an onus on the defendant to adduce evidence to show that he did not know that the plaintiff sent the Twitter message dated 1 September 2017, in circumstances where the message did not identify the plaintiff as the sender.
4.The primary judge erred in holding that paragraph 44A of the Defence had no real prospect of success, in that his Honour erroneously:
(a)rejected the allegations in paragraph 1A of the Defence as unsupported by evidence ([AsJ Reasons] at [16]);
(b)concluded that the defendant’s evidence was not capable of supporting the allegation that he had not been accorded natural justice ([AsJ Reasons] at [34], [37]–[39]); and©) treated the finding in the judgment of the Ningbo People’s Court that the defendant had been ‘legally summoned’ as determinative of whether enforcement of the judgment would be contrary to Australian public policy and/or whether the defendant had been accorded natural justice ([AsJ Reasons] at [33], [35]–[36]).
5.Further or alternatively, the primary judge erred by not ordering that the proceeding proceed to trial pursuant to s 64 of the [CPA].
The Trial Division judge dismissed the appeal. The judge summarised the grounds of appeal in the following terms:
(1)The associate justice erred in holding that Yin’s denial in his defence that he knew Wu prior to service of the current proceeding was not supported by evidence and thus had no real prospect of success (Yin’s claim he did not previously know Wu).
(2)The associate justice erred in holding that the bank records were admissible as business records (admissibility of bank records).
(3)The associate justice erred in holding that Yin’s claim that his bank accounts were frozen as at 30 August 2017 was not supported by evidence and had no real prospect of success (Yin’s claim his bank accounts were frozen).
(4)The associate justice erred in holding that Yin’s defence that he was not accorded natural justice in the Chinese court proceedings had no real prospect of success (Yin’s claim he was not accorded natural justice).
(5)Further, or alternatively, the associate justice erred in not ordering that the proceeding proceed to trial pursuant to s 64 of the CPA (consideration of s 64 of the CPA).[77]
[77]Reasons, [7].
After setting out the facts in a much more comprehensive fashion than did the associate justice,[78] the judge correctly recorded the principles relevant to an appeal from an associate justice to the Trial Division; noting that the appeal to her was by way of rehearing, and that this required Yin to show factual, legal or discretionary error on the part of the associate justice.[79]
[78]Ibid [9]–[66].
[79]Reasons, [81], referring to Ascot Vale Self Storage Pty Ltd (in liq) v Nom De Plume Pty Ltd [2019] VSC 794, [72] (Riordan J). See also Oswal v Carson [2013] VSC 355, [11] (Ferguson J); Goode v Common Equity Housing Ltd [2019] VSC 841, [10] (Ginnane J); Re Cohalan and Mitchell Roofing (in liq) [2020] VSC 222, [35] (Sifris J); Majak v Rose [2021] VSC 599, [17] (Keogh J).
The judge then referred to ss 61 and 63 of the CPA and set out the principles which guide exercise of the Court’s power to order summary judgment by reference to this Court’s decision in Lysaght. The judge summarised the ‘key matters to consider’ in exercising the discretion to give summary judgment as including:
whether the respondent to the application has a real as opposed to fanciful chance of success; that the power to terminate the proceedings should be exercised with caution; and that the discretion should not be exercised unless it is clear that there is no real question to be tried.[80]
[80]Reasons, [85].
The judge then referred to the decision of the High Court in Spencer v Commonwealth,[81] where the High Court considered the Federal Court equivalent of the summary judgment power. The judge noted that French CJ and Gummow J described the summary judgment power as involving a ‘practical judgment’ as to a defendant’s prospects of success,[82] and emphasised their statement that, where factual issues are capable of being disputed and are in dispute, summary dismissal should not be awarded to the plaintiff ‘simply because the Court has formed the view that the [defendant] is unlikely to succeed on the factual issue’.[83] Moreover, the judge correctly noted that in Spencer, French CJ and Gummow J cautioned against giving summary judgments in cases involving ‘complex questions of fact’,[84] and referred with approval in that regard to the statement by Lord Hope of Craighead in Three Rivers District Council v Bank of England [No 3][85] that:
The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions … it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, … that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.[86]
[81](2010) 241 CLR 118; [2010] HCA 28 (‘Spencer’).
[82]Reasons, [86], referring to Spencer (2010) 241 CLR 118, 132 [25]; [2010] HCA 28.
[83]Ibid.
[84]Reasons, [86]; Spencer (2010) 241 CLR 118, 132 [26]; [2010] HCA 28.
[85][2003] 2 AC 1 (‘Three Rivers’).
[86]Spencer (2010) 241 CLR 118, 130 [21]; [2010] HCA 28, referring to ibid, 260–1 [95].
Further, the judge rightly recorded that the High Court in Trkulja v Google LLC,[87] reiterated its comments in Spencer as to the caution to be exercised in giving summary judgment.[88]
[87](2018) 263 CLR 149; [2018] HCA 25 (‘Trkulja’).
[88]Reasons, [87], referring to Trkulja (2018) 263 CLR 149, 158 [23] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); [2018] HCA 25.
While stating and accepting the principles in Spencer and Trkulja, the judge also gave prominence in her summary of the applicable law to the statements of this Court in Hausman, which had been referred to by the associate justice and which her Honour summarised as making ‘clear the expectations of a party opposing an application for summary judgment’,[89] emphasising the statement in Hausman that:
an affidavit in opposition to an application for summary judgment must provide sufficient particulars to enable the defence case to be properly understood. A bald denial that the defendant is indebted to the plaintiff will not suffice. The affidavit should, so far as practicable, deal specifically with the plaintiff’s claim and the facts set out in the supporting affidavit to establish that claim. It should state clearly and concisely what the defence is, and identify the facts relied upon in support of that defence.[90]
[89]Reasons, [88].
[90]Hausman (2009) 29 VR 213, 226 [65] (Weinberg and Bongiorno JJA, Williams AJA); [2009] VSCA 288 (citations omitted).
Finally, in her review of the applicable law, the judge noted that the discretion under s 64 of the CPA was guided by the interests of justice and whether or not ‘the dispute is of such a nature that only a full hearing on the merits is appropriate’.[91] By reference to the decision of John Dixon J in Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd,[92] the judge noted that the discretion as to whether to exercise the power under s 64 was to be exercised in light of the object of facilitating the just, efficient, timely and cost effective resolution of the real issues in dispute.[93]
[91]Reasons, [89].
[92](2011) 35 VR 1; [2011] VSC 222 (‘Ottedin’).
[93]Reasons, [90], referring to Ottedin (2011) 35 VR 1, 8 [18(3)]; [2011] VSC 222.
The judge then stated that she had applied the above principles in her determination of the appeal,[94] and on that basis proceeded to affirm the decision of the associate justice on each of those issues. In doing so, the judge conducted a far more extensive analysis of the facts than had the associate justice.
[94]Reasons, [91].
As to Yin’s claim that he did not previously know Wu, the judge analysed Wu’s evidence against what she regarded as material omissions or inconsistencies in Yin’s evidence, referred to matters which she would have expected Yin to specifically deny or comment on beyond his ‘bald denial’ of knowing Wu,[95] and concluded:
97Noting the expectations of the contents of a defendant’s affidavit in opposition to an application for summary judgment as set out in Hausman, and given the extensive documentary evidence produced by Mr Wu in support of his claim, it was reasonable to expect Mr Yin to respond beyond a ‘bald denial’. Mr Yin’s silence in this respect was inexplicable and his lack of engagement with the material put against him by Mr Wu was so deficient that the Associate Justice was correct to categorise Mr Yin’s evidence as his Honour did.
98Mr Yin referred me to Spencer and Trkulja to support his submission that summary judgment must be refused if there are real factual issues between the parties, which can only be resolved after the cross‑examination of deponents. Whilst that principle is well established, it cannot fairly be said to apply to this case. After careful analysis of the voluminous affidavit material filed, the Associate Justice was able to reach a ‘practical’ and ‘confident’ conclusion — that this aspect of Mr Yin’s defence had no real prospect of success.
99On the evidence before the Associate Justice, notwithstanding Mr Yin’s express denial, I am not satisfied that he erred in holding that there was no real prospect of Mr Yin’s defence that he
(i) had not heard of, and
(ii)did not know Mr Wu prior to finding out about the Chinese judgment.[96]
[95]Ibid [94]–[96].
[96]Ibid [97]–[99] (emphasis added) (citations omitted).
As to the admissibility of what the judge characterised as ‘the Chinese bank records’ — a reference to the copy bank statements from Yin’s accounts which he deposed had been frozen and were out of his control at relevant times — the judge summarised Yin’s contentions as follows. First, that Yin contended by his grounds of appeal on this issue that the associate justice erred in admitting those records into evidence under s 69 (1)(a) of the Evidence Act 2008. Second, that the associate justice gave inadequate reasons for so finding. Third, that in any event, the associate justice erred by not providing Yin with an opportunity to challenge the provenance of the copy bank statements at trial.[97]
[97]Ibid [100].
On this matter, the judge found no error in the associate justice’s decision to admit the copy bank statements as evidence of the transactions recorded under s 69 of the Evidence Act. Like the associate justice, the judge reasoned that, as Yin did not allege fraud or adduce evidence to ‘challenge the authenticity of the records’,[98] there was no error or lack of reasoning by the associate justice in accepting the evidence of Wu as to the provenance of the copy bank statements. The judge also held that the ‘nature and context’ of the bank statements permitted an inference to be drawn that they were true (translated) copies of ‘bank records [created by a person who] had personal knowledge of the asserted facts contained in them.’[99]
[98]Ibid [104].
[99]Ibid [103].
As to Yin’s claim that his bank accounts were frozen, the judge referred to Yin’s affidavit evidence to this effect and his contention that his defence on this basis was thus more than a bare assertion.[100] Once again, the judge found no error with the associate justice’s approach to this issue. Further, as with Yin’s evidence that he did not know and had not heard of Wu before the current proceeding, the judge noted what she regarded as material omissions or inconsistencies in Yin’s evidence, and referred to matters which she would have expected Yin to deny or comment on beyond his ‘bare assertion’ that his accounts were frozen and out of his control at relevant times. On this basis, like the associate justice, the judge rejected Yin’s affidavit evidence.[101] In doing so, the judge stated that she was ‘[m]indful of the principles articulated in Hausman in considering the expectations of a defendant in response to a summary judgment application’,[102] and on that basis concluded that Yin ‘ought to have adduced more evidence to demonstrate the viability of this aspect of his defence.’[103] On this basis, the judge upheld the associate justice’s conclusion that Yin’s evidence concerning his frozen bank accounts was ‘nothing more than a bare assertion … such that this aspect of his defence had no real prospects of success.’[104]
[100]Ibid [105].
[101]Ibid [105]–[108].
[102]Ibid [108].
[103]Ibid.
[104]Ibid.
As to Yin’s claim that he was not accorded natural justice because he was not served with any of the court documents in the Chinese proceedings, the associate justice noted Yin’s affidavit stating that he had not been served with any of the documents in the Chinese proceedings and only learned of the Chinese judgment when the current proceeding was served on him. The judge also noted Yin’s submission that there was no expert evidence about Chinese law and its proper application in relation to the Chinese proceedings.[105]
[105]Ibid [109].
The judge then set out what she regarded as the applicable principles in determining whether a foreign judgment may be enforced by judgment in Australia. After noting that the Foreign Judgments Act 1991 (Cth) had no application, because China is not a designated country under the applicable regulations,[106] the judge set out the basic common law principles. First, the judge referred to the four conditions which must be satisfied for a foreign judgment to be recognised at common law,[107] as stated by J Forrest J in Doe v Howard,[108] namely:
(a) the foreign court must have exercised jurisdiction that Australian courts will recognise;
(b) the foreign judgment must be final and conclusive;
(c) there must be an identity of the parties; and
(d) the judgment must be for a fixed sum or debt.[109]
[106]Ibid [110], referring to Foreign Judgments Regulations 1992 (Cth).
[107]Reasons, [111].
[108][2015] VSC 75 (‘Doe’).
[109]Ibid [56]. These four conditions are also set out in the Supreme Court of Victoria, Practice Note SC GEN 15: Enforcement of Foreign Judgments, January 2017, 4.1.
Next,[110] the judge noted the comments of Kirby P in Bouton v Labiche,[111] that common law courts should not be ‘too eager to criticise the standards of the courts and tribunals of another jurisdiction or too reluctant to recognise their orders which are, and remain, valid by the law of the domicile.’[112] The judge noted, however, that Kirby P went on to state that common law courts have reserved a right to refuse to enforce a foreign judgment in circumstances where the judgment offends against local ideas of substantial justice or was obtained contrary to the requirements of procedural fairness or natural justice.[113]
[110]Reasons, [112].
[111](1994) 33 NSWLR 225 (‘Bouton’).
[112]Ibid 234.
[113]Reasons, [113], referring to Bouton (1994) 33 NSWLR 225, 234.
The next principle stated by the judge concerned onus. The judge stated that if the four conditions summarised by J Forrest J in Doe are established, the onus falls on a defendant relying on one of the ‘exceptions’ — lack of substantial justice, procedural fairness or natural justice — to rebut the prima face presumption of enforcement.[114] In formulating the principle in this way, the judge relied on the statement of J Forrest J in Doe — which was a fraud case — that:
The burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for the party to establish the fraud and to do so clearly.[115]
[114]Reasons, [115].
[115]Doe [2015] VSC 75, [107(e)] (emphasis added).
Finally, the judge considered that, based on the passage from Boele which had been quoted by the associate justice and is quoted above, the authorities indicate that in considering whether there has been a denial of natural justice in obtaining a foreign judgment, the Court’s assessment is ‘ordinarily based upon the rules and procedures of that foreign jurisdiction.’[116]
[116]Reasons, [116].
The associate justice then noted that there are varying ways in which the applicable law of foreign jurisdictions as to notice of proceedings has been put before courts. The judge referred to the use of expert evidence, translations of foreign statutes tendered pursuant to s 174(1)(b) of the Evidence Act and reference to extracts of foreign law from an Asian law database.[117] It appears that the judge referred to these alternative methods of proving the relevant content of Chinese law for the purposes of this case, so as to show that there were various means available to the party bearing the onus on the natural justice issue to establish either that due notice was given according to Chinese law or that it was not.
[117]Ibid [119].
On the basis of the principles outlined by the judge, she determined that Wu had enlivened the prima facie presumption that the Chinese judgment would be enforced by this Court, a matter not in dispute in this Court, and expressly found that the burden was on Yin to persuade the associate justice that he had been denied natural justice. Like the associate justice, the judge treated Yin’s sworn evidence that he had not been given notice of the Chinese proceeding as a mere assertion, rather than uncontradicted evidence that he had not been personally served or otherwise received notice of the Chinese proceedings, as the following passage from the judge’s reasons demonstrates:
120… It was Mr Yin who sought to rebut that presumption, and in doing so, relied upon denial of natural justice and public policy grounds. In so alleging, the burden was on Mr Yin to persuade the Associate Justice that the Chinese judgment should not be enforced. However, save for asserting that he was never served with the Chinese proceedings, Mr Yin made no attempt to explain why he had been denied procedural fairness.
121Mr Yin alleged that the Associate Justice erred in accepting the Chinese Court’s finding that he had been ‘legally summoned’ as determinative, yet presented no evidence to explain what this meant under Chinese law, or how such a requirement had not been followed. That burden fell to Mr Yin, and his failure to produce evidence to establish that this aspect of his defence had a real prospect of success meant that it was open to the Associate Justice to conclude that it did not.[118]
[118]Ibid [120]–[121] (emphasis added).
The judge concluded her reasons on the natural justice issue by referring to the associate justice’s reliance on Jamieson v Robb[119] and noting that, although it was not directly analogous to the issue, no error had been shown by the associate justice in referring to it because he otherwise did not fall into error for the reasons previously explained.[120]
[119](1881) 7 VLR (L) 170.
[120]Reasons, [124].
Proposed grounds of appeal
The proposed grounds of appeal may be summarised as follows:
(1)Ground 1: the judge erred in upholding the associate justice’s conclusion that the defence to the enforcement claim had no real prospect of success, and in doing so erred by imposing an onus on Yin to adduce evidence about applicable Chinese law relating to service by public announcement and why that method of service had not been properly invoked in this case. Further, the judge erred by relying on the Wang affidavit which was not in evidence, or not relied on by Wu, on the hearings before either the associate justice or the judge.
(2)Ground 2: the judge erred in affirming the associate justice’s decision to grant summary judgment on the restitution claim in circumstances where Wu’s claim depended on complex materials which contained substantial irregularities identified in the Stops affidavit and which had not been tested through interlocutory and trial processes or cross-examination. The judge ought to have concluded that the restitution claim was not appropriate for summary judgment in those circumstances.
(3)Ground 3: the judge erred in upholding the associate justice’s conclusion that Yin’s allegation that he did not know Wu was a ‘bare assertion’ with no prospects of success, and concluding on her own review of the evidence that Yin’s allegation (and evidence) that he did not know Wu was a ‘bald denial’ which did not engage with Wu’s evidence and had no prospect of success.
(4)Ground 4: the judge erred in finding that there was no error by the associate justice in admitting the ‘purported’ copies of Yin’s bank statements into evidence, and finding that the associate justice gave adequate reasons for doing so under s 69(1)(a) of the Evidence Act.
(5)Ground 5: the judge erred in upholding the associate justice’s conclusion that Yin’s allegation that his bank accounts had been frozen and he could not access them at relevant times was a ‘bare assertion’ with no prospect of success.
(6)Ground 6: the judge erred in concluding that Yin’s reliance on s 64 of the CPA could not be argued on appeal because it was not raised before the associate justice, and by failing to conclude that the nature of the dispute was such that only a full hearing on the merits was appropriate.
(7)Ground 7: the judge erred in refusing to adjourn the hearing, at which orders dismissing the appeal were to be made, to enable Yin to make an application to re-open the appeal on the basis of fresh evidence.
As to ground 7, we note that the nature of the fresh evidence was not revealed when the adjournment application was made. Yin has now assembled the fresh evidence on which he wishes to rely and sworn an affidavit concerning it. He has made application to this Court for the fresh evidence to be admitted and taken into account in this appeal. The Court informed the parties that, if necessary, the application to rely on fresh evidence would be considered in giving reasons on the application for leave to appeal.
Third, there is no doubt that the copy bank statements contain entries that are relevant to this proceeding.
Ground 5: Yin’s evidence that his bank accounts had been frozen
The issue under ground 5 is whether the associate justice was correct in concluding that Yin’s evidence that he could not access his bank accounts at relevant times was a ‘bare assertion’ with no real prospect of success. In support of this defence, Yin deposed in his first affidavit that all of his bank accounts in mainland China, as well as his ICBC Singapore bank account #770, had been frozen by the Chinese Government in April/May 2017 ‘due to the same activities that caused [him] to seek political asylum in Australia under a protection visa’. As to those ‘activities’ Yin deposed in his first affidavit that he will not return to mainland China because he believes he will ‘be imprisoned because of the activities that I have carried out … against the interests of the Chinese Government’. In his third affidavit, he expanded on his outspoken criticism of the Chinese Communist Party. In his second affidavit, he deposed that he could make no transactions from his Hua Xia Bank account #987 because it had been frozen. In his third affidavit, he specifically denied that he had been transferring money from his ICBC Bank account #770 after he alleged that account had been frozen, as depicted in the bank statements for that account. Moreover, Yin deposed to the video of himself trying to log into his Hua Xia Bank account #987 and his inability to access the account documents and records.
Yin contends that the associate justice’s rejection of this aspect of his defence, as a ‘bare assertion’, ignored much of his evidence and focussed instead on things that he could have specifically deposed to. Moreover, the apparent presence of transactions taking place on the accounts, as recorded in the copy bank statements, did not establish that Yin was in control of his accounts at those times. The fact that more evidence could have been adduced did not undervalue the evidence which had been produced. This matter was obviously one for trial, and not summary dismissal.
Wu contended that the allegation that Yin’s bank accounts were frozen was irrelevant because, even if the accounts were frozen, that was a matter between Yin and his bank. Thus, even if Yin is a Chinese dissident whose bank accounts have been frozen for that reason, that is his problem. Moreover, the allegation that Yin’s Hua Xia Bank account #987 was frozen lacks credibility because the evidence establishes that it was Yin who nominated that account for the purposes of the contemplated foreign exchange transaction, and the evidence in the copy bank statements recorded that Yin had received the bank transfer from Wu into that account. Moreover, Yin adduced no evidence of more recent attempts to contact his bank, obtain copies of his bank statements or make any other formal or written enquiry of his bank as to the status of his account.
Further, Wu relies on Yin’s statements and admissions in the 1 September Twitter broadcast which are set out above. He relies in particular on Yin’s statement that he was able to test his access to the Hua Xia Bank account #987 on 30 August 2017 without any problem (‘for the sake of testing this account, I wired one million from ICBC Bank to my Hua Xia Bank. When this money arrived, I wired it out immediately’), and that this statement is supported by entries in Yin’s bank statements.
In our view, taking the evidence as a whole, the associate justice was right to characterise this aspect of Yin’s defence as a ‘bare assertion’. Not only was it not supported by evidence, but the evidence in Yin’s bank statements is inconsistent with the assertion. The bank statements show many dealings leading up to and after the receipt of the RMB ¥3,966,000 payment. As the associate justice said, Yin did not allege that the entries in the statements were fraudulently made.
Grounds 2 and 6: Was the restitution claim appropriate for determination by summary judgment?
Grounds 2 and 6 overlap and should be considered together.
Overlaying both of these grounds is the proper construction of ss 63 and 64 of the CPA and the relationship between them. Those sections must be construed in the context of the Act as a whole, particularly in light of the objects of the Act to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute in civil proceedings.
Wu contended before the judge that s 64 was not expressly relied upon by Yin before the associate justice. Thus, the associate justice could not have made any error by not considering the discretion under s 64 before granting summary judgment. The judge accepted this submission.[170]
[170]Reasons, [127].
Yin contends that the associate justice erred by not considering s 64 and that the judge erred in holding that the associate justice was not required to do so unless it had been expressly relied on before the associate justice. In this regard, Yin placed particular reliance on other cases where the power under s 64 has been exercised because of the nature of the dispute,[171] and referred to the judgment of Digby AJA (Ashley and Tate JJA agreeing) in De Saram v Brown.[172]
[171]Referring to JBS Southern Australia Pty Ltd v Westcity Group Holdings Pty Ltd [2011] VSC 476 and Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd (2011) 35 VR 98; [2011] VSCA 444.
[172][2015] VSCA 142 (‘De Saram’).
In our view, these decisions are not of assistance on this issue. They demonstrate only that the exercise of the power under s 64 will depend upon the facts of each case. In De Saram, a submission that in every summary judgment application under s 63 it is necessary for the Court to consider the discretion under s 64 before granting summary judgment was left open.[173]
[173]Ibid [165] (Digby AJA, Ashley and Tate JJA agreeing at [1] and [2] respectively).
For the reasons appearing below, it is also unnecessary to decide that issue in this case. However, our view is that there is much to be said for a construction of s 63 which requires the court to consider whether the discretion under s 64 to order that a proceeding proceed to trial should be considered in every case where the court reaches the view that there is no real prospect of success. Otherwise, it is difficult to see the purpose of the introductory words to s 63(1) (‘Subject to section 64’). Reading the two sections together suggests that the discretion to give summary judgment under s 63 is subject to the court’s consideration of its discretion under s 64. On this basis, there is no requirement that express reliance be placed on s 64. Nevertheless, a person who wishes to rely on the matters in s 64 as a basis for resisting an application for summary judgment should, ordinarily, expressly rely upon them so that these matters can be addressed in argument.
Moreover, the governing authorities concerning the exercise of the Court’s discretion to give summary judgment require, in any event, consideration as to whether the dispute is more suitable for trial than summary judgment. This is part of the caution to be exercised before granting summary judgment. As noted by the judge, the statements by French CJ and Gummow J in Spencer applied to the determination of the summary judgment application in this case. Spencer involved consideration of the Federal Court summary judgment power, which is expressed in different terms to that in Victoria. By s 31A(2) of the Federal Court Act 1976 (Cth), summary judgment may be granted if there is ‘no reasonable prospect of success’. The majority judgment (Hayne, Crennan, Kiefel and Bell JJ) drew a distinction between the two tests, stating that the ‘no real prospect’ test and the ‘no reasonable prospect’ test convey very different meanings.[174] However, French CJ and Gummow J made no such distinction in their reasons, which proceeded on the basis that there was no material difference between the two tests. On that basis, French CJ and Gummow J approved the statement from Three Rivers that ‘more complex’ cases are unsuitable for summary disposition because they are ‘unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence’ and that the summary judgment power is ‘designed to deal with cases that are not fit for trial at all’.[175]
[174]Spencer (2010) 241 CLR 118, 139 [51]; [2010] HCA 28.
[175]Ibid 130 [21], quoting Three Rivers [2003] 2 AC 1, 261 [95] (Lord Hope of Craighead).
Further, French CJ and Gummow J emphasised the caution which should be attached to the exercise of the summary judgment power as requiring a ‘high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way’,[176] and emphasised the need for caution in the exercise of the summary judgment power in cases involving factual disputes, particularly complex factual disputes.[177]
[176]Spencer (2010) 241 CLR 118, 132 [24]; [2010] HCA 28, quoting Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, 275 [46]; [2006] HCA 27.
[177]Spencer (2010) 241 CLR 118, 132 [25]–[26]; [2010] HCA 28.
In the present case, reading the transcript of the hearing before the associate justice as a whole, it is clear that the substance of the oral submissions made to the associate justice was that, because of deficiencies in proof of Wu’s claims under the foreign exchange agreement, the existence of the discovery and inspection application and the unusual and complex nature of the claims, the dispute was of such a nature that only a full hearing on the merits was appropriate.
In particular, a reading of the transcript before the associate justice discloses, in clear terms, that counsel who then appeared for Yin submitted that Yin’s discovery and inspection application was relevant to the summary judgment application. Against opposition from the associate justice in argument, who expressed the view that the possible irregularities referred to in the Stops affidavit were ‘peripheral’, counsel for Yin persisted with the submission that the claimed irregularities were matters which the associate justice should take into account in determining whether the proceeding ‘needs to go to a full trial’ so as to allow all the evidence to be ‘properly tested’. Although the associate justice ultimately allowed Yin’s counsel to develop the relevance of the discovery and inspection application on this basis, and on the basis that it was relevant to the Court’s overall assessment of the evidence for summary judgment purposes, the associate justice made no reference to these submissions, the Stops affidavit or the discovery and inspection application in his reasons.
Yin contends that, by not expressly considering these submissions, or the asserted complexity of the case, the associate justice did not take into account material considerations in the exercise of his discretion under ss 63 and 64.[178]
[178]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40.
We do not accept Yin’s submissions. Reading the associate justice’s reasons as a whole, brief as they are, it is plain that the associate justice considered the restitution case to be a straightforward one. Wu proved that he arranged for the payment of RMB ¥3,966,000 into Yin’s Hua Xia Bank account #987, that Yin immediately transferred RMB ¥3,500,000 from those funds to his ICBC account #770, and has only repaid RMB ¥496,005. The associate justice dismissed the asserted defences as bald denials or bare assertions which were not supported by the evidence. In these circumstances, it is unsurprising that the associate justice decided that it was not necessary to consider the contention that the proceeding should go to trial on the basis of some concerns raised in the Stops affidavit as to the authenticity of some of the evidence relied upon by Wu in support of his claim under the alleged foreign exchange agreement. None of those issues could have altered the basis for the restitution claim, namely, that Wu had (through his cousin’s bank account) transferred money into Yin’s bank account under an agreement or contemplated agreement that the transfer would be in exchange for payment to Wu of USD $600,00, which was not paid and thus there was a total failure of consideration, and that (despite demand) Yin had failed to repay that amount or to assert any basis upon which he was entitled to retain it. There is nothing complex about that claim which required a full analysis of, or assessment of the authenticity of, the voluminous affidavits and exhibits relied upon by Wu to prove the foreign exchange agreement. The fact that those issues may be appropriate for a trial is not to the point.
We note that there was no ground of appeal to the judge which contended that, apart from the reasons concerning admissibility of the copy bank statements, the associate justice’s decision should be set aside because he gave inadequate reasons. It is unnecessary to consider whether such a ground of appeal might have been successful. This is because the summary judgment application was, while heard in the context of an appeal requiring the judge to find error in the associate justice’s reasons, basically a rehearing of the summary judgment application. The judge gave more than adequate reasons as to why the conclusions reached by the associate justice were correct. Moreover, all the material and arguments were before this Court and we would reach no different conclusion. Subject to Yin’s application to adduce fresh evidence, therefore, we would refuse Yin’s application for leave to appeal under grounds 2, 3, 4, 5 and 6.
Ground 7: refusal of adjournment to prepare fresh evidence application
By ground 7, Yin seeks to challenge the judge’s exercise of the discretion to refuse his application that the hearing — at which judgment was to be entered following the publication of the judge’s reasons — should be adjourned to enable him to prepare a fresh evidence application. We have considered the reasons given by the judge for refusing the application for an adjournment and can see no discretionary error. In any event, following further delay, Yin has now assembled the fresh evidence on which he wishes to rely and has made application to this Court for it to be admitted as part of his application for leave to appeal. Leave to appeal on ground 7 will be refused. We turn to consider the fresh evidence application.
Fresh evidence application
In his affidavits in opposition to the summary judgment application, Yin made references to his asserted status as a Chinese dissident who has been targeted by the Chinese Government because of his opposition to the present regime, and his belief that it was the Chinese Government which had frozen his relevant bank accounts before the dealings which are the subject of this dispute. No allegation was made against Wu that he was in some way involved in a conspiracy against him by the Chinese Government. As the associate justice noted, fraud was not alleged. Now, by purportedly fresh evidence, Yin seeks to contend that Wu is a party to such a conspiracy.
By an affidavit made on 4 April 2023 (‘fresh evidence affidavit’) Yin deposes that he always believed that Wu’s case was based on false information, fraudulent conduct and fabricated allegations and evidence, but had no evidence to support that belief and so could not plead the ‘suspected fraud’ or include evidence of it in his affidavits in opposition to the summary judgment application. He said that his search for evidence of the suspected fraud was the purpose of his discovery and inspection application supported by the Stops affidavit.
Yin then deposed that in late November 2022 he obtained ‘new information’ from persons who presented themselves to him as ‘police officers who were involved in a special task group against me, whose activities have included falsifying social media messages, bank statements or transactions’. Yin said that the reason the police officers gave for these activities against him was that they were in response to Yin’s activities as a political activist who was critical of Chinese authorities. He deposed that those activities arose from modest financial assistance he gave to some Chinese refugees in Thailand in 2014, which resulted in Ningbo State Security officials asking him and his parents to pay bribes in increasingly large sums to ‘avoid action being taken by the Chinese government in relation to [his] assistance of refugees.’ Yin deposed that, between September 2015 and September 2016, he paid bribes of about RMB ¥220,00 and his parents paid about RMB ¥700,00. He then formed the view that the demand for bribes would not stop, and so he cut off contact with the security officer he was dealing with and left China in February 2017 to live in Singapore. From about this time, he commenced making videos explaining the extortion by Ningbo State Security and otherwise criticising the Chinese political system, and posted them on Twitter and YouTube. He also started supporting pro‑democracy movements. He moved to live in Sydney in February 2018.
Yin’s affidavit then outlines a conspiracy case based on hearsay evidence from two un‑named police officers (‘witness 1’ and ‘witness 2’) claiming to be members of a ‘416 Special Case Group’ run by the ‘Ningbo State Security Bureau’ until 2020, when it was upgraded to a higher grade political security bureau. The main objective of the special case group was said to be to fabricate evidence against Yin for the purpose of causing his protection visa application in Australia to fail, because he would be disclosed as a fraudster who would fail the character test.
Yin deposed that witness 1 had contacted him because he had sympathy for him. He said that the early contact was by encrypted Telegram messages, which automatically disappear from each other’s phones after a certain period of time, and so could not be produced.
Yin exhibited what he described as a signed joint statement of officers of the alleged special case group, which he said was sent to him by witness 1 by Telegram and then post, and a translation of that document. The statement contains many redactions and it is impossible to know the identity of the signatories. The statement contains a bizarre account of an alleged course of ‘entrapment’ and fabrication of evidence by the so‑called special case group to lure Yin back to China and imprison him for 20 years or life for his activities which were said to have humiliated Xi Jinping and his daughter.
Of specific reference to this case, the statement alleges that Wu and the special case group ‘implemented the “entrapment” scheme through the “foreign exchange” set up’ — a reference to Wu’s claims in the current proceeding. The statement alleges that the entrapment involved the following steps:
(1)Blackmailing a vice president of the Hua Xia Bank into cooperating with the entrapment scheme.
(2)Wu transferring RMB ¥3,966,000 to Yin’s Hua Xia Bank account through the bank account of Yong Yong Xu, who is alleged to be ‘a businessman associated with the Ningbo State Security Bureau’. It was intended that this payment would be ‘held up while being processed’. This occurred and the transfer ‘was not actually completed’.
(3)The repayment of RMB ¥496,005 to Yong Yong Xu’s bank account was made ‘in order to create the illusion that the exchange had been partially returned’. In fact, Yong Yong Xu transferred the RMB ¥496,005 to the Ningbo State Security Bureau on receipt, and the money was used to fund the special case group ongoing investigation of Yin.
(4)As part of the entrapment scheme, Wu ‘announced the story on Twitter the same day, creating the illusion that [Yin] was a fraud’.
Rule 64.13(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) provides that evidence which was not before the court whose decision is sought to be appealed shall not be relied upon, unless this Court orders otherwise. The question of whether to admit fresh evidence is a matter of discretion.[179] In Foody v Horewood,[180] Chernov JA described the discretion to receive further evidence as ‘general and wide’, notwithstanding that the appeal is in the nature of a rehearing.[181] It was contended by Wu that the test has become more stringent, and the discretion less wide, in light of amendments made to the Rules since that statement was made. For the purposes of this appeal, it is unnecessary to decide whether that is so.
[179]Carroll v Goff [2021] VSCA 267, [54] (Maxwell P, Kennedy and Walker JJA).
[180](2007) 62 ACSR 576; [2007] VSCA 130 (‘Foody’).
[181]Ibid 597 [59] (Chernov JA, Ashley and Neave JJA agreeing at [75] and [98] respectively).
It is generally said that the test is a ‘stringent’ one and that the discretion will ordinarily not be exercised in favour of admitting fresh evidence unless the Court is satisfied of three things, namely, that it is sufficiently credible, that it could not have been obtained with reasonable diligence for use at the trial and that there is a high probability that the result would have been different had it been received at trial.[182] However, the approach to the admission of fresh evidence on appeal in a summary judgment case is less stringent, as ‘the affected party has not had the benefit of a trial and the opportunity thus afforded to investigate, and have a determination upon, the facts and the law’.[183]
[182]Ibid 598 [61] (Chernov JA, Ashley and Neave JJA agreeing at [75] and [98] respectively).
[183]Doherty v Murphy [1996] 2 VR 553, 563 (Hansen J); Total Gas Care Pty Ltd v Barry Bros Specialised Services Pty Ltd [2012] VSCA 303, [16]–[17] (Hargrave AJA, Whelan JA agreeing at [26]).
The issue in this case concerns the credibility of the fresh evidence, and also the credibility of the statements in Yin’s affidavit as to the circumstances in which the fresh evidence was obtained. Yin contends that the proposed evidence is sufficiently credible for the purposes of a summary judgment application where hearsay evidence is admissible. He relies on the High Court statement in Trkulja,[184] criticising the making of findings of fact on affidavit evidence in a summary dismissal proceeding based on the pleadings. Further, he contends that the proposed evidence should be admitted because the authenticity of the documents relied on by Wu was in dispute on the summary judgment application, and challenging authenticity was the purpose for Yin’s discovery and inspection application supported by the Stops affidavit.
[184](2018) 263 CLR 149, 163 [37]; [2018] HCA 25.
We do not accept Yin’s contentions. Having considered the circumstances in which Yin says he gathered the proposed fresh evidence, and the content of that evidence, we have reached a strong view that the circumstances and content concerning the issues in this proceeding lack any credibility at all. On this basis, the comments of the High Court in Trkulja are not apposite. Even if such evidence could be adduced at trial, it is so obviously lacking in veracity that, without cross‑examination, it would be rejected. In any event, there is no real prospect that Yin will be able to adduce the evidence at trial, as Yin’s own evidence is that witness 1 and witness 2 do not wish to be identified and the documents produced to Yin’s affidavit, including the so‑called joint statement, are full of redactions for this purpose. In some cases, the redactions make the evidence meaningless; in other cases they simply add to the lack of any credibility.
The application to adduce fresh evidence must be refused.
Conclusion
For the above reasons, we will grant leave to appeal on ground 1 and allow the appeal on that basis, with the result that the summary judgment for the Chinese judgment sum will be set aside. We will refuse leave to appeal on all the other grounds and, as a result, grant summary judgment to Wu for the amount of the restitution claim, together with interest.
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