Zhang v Sam and Mary Pty Ltd (No 2)
[2013] QDC 282
•11 OCTOBER 2013
[2013] QDC 282
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE RYRIE
No 1803 of 2013
YU ZHANG Plaintiff
and
SAM & MARY PTY LTD
and OTHERS DefendantsBRISBANE
10.01 AM, FRIDAY, 11 OCTOBER 2013
JUDGMENT
HER HONOUR: This is an application, document number 24, in the matter of Yu Zhang v Sam and Mary Proprietary Limited, as well as second and third defendants Mao and Wang, seeking for what is a direction in the application, pursuant to rule 367, that the witness intended to be called by the Plaintiff, one Jian Lu, be permitted to give her evidence at trial, but essentially by video link from Shanghai, where she currently is living – that’s situated, obviously, in China – and further and other directions or orders that the Court considers appropriate to facilitate the trial on a separate question that has been set specifically for hearing on the 24th and 25th of October. Costs are also sought.
Neither party were required to attend for the purpose of publishing this matter, but nevertheless, I just want to put on the record that Mr Amerena didn’t receive the message and is here and I’ve just spoken to him about something that’s non-controversial – in any event, in the absence of Mr Steele, who is counsel for the Defendants who appeared on the matter in front of me – relating to the relevant rule and/or the appropriate section under the Evidence Act to seek to actually allow someone to give video link evidence in this Court. So whilst the application may be just seeking a direction, that’s non-controversial, as I’ve said.
The relevant section and the relevant rule, obviously, to allow evidence to be given by video link or any other form of communication, which includes telephone, for example, is rule 392 of the Uniform Civil Procedure Rules, which must be read in conjunction with the provisions as they appear in the Evidence Act under Division 4 as they relate to 39Q, up to and including 39Z, which is the general provisions that relate to the use of audio-visual link or audio link. That division I’ve just referred to in the Evidence Act specifically applies to any proceedings. That can include a criminal proceeding before a Queensland court and therefore, as I’ve said, neither sit alone insofar as rule 392.
So bearing those things in mind and going on the basis that I know that Mr Steele and Mr Amerena, when they appeared last week in applications before me on this matter, were aware that that was the argument and the appropriate reference to the rule and Evidence Act as applicable, the application as it stands, I shall just simply leave as it is, bearing in mind that – as I’ve said – if I make an order, would be pursuant to what I’ve just referred to in any event. The relevant considerations when one has regard to whether or not there should be evidence received by way of video link and/or telephone, for that matter, but more importantly, any form of communication other than from a witness that doesn’t require their attendance in person, has been considered in the matter of ASIC v Rich.
The citation for that is (2004) 49 ACSR 578. Austin J was kind enough to set out a series of considerations in that decision that are applicable in my mind here. That includes – and not obviously exhaustive – but costs involved with bringing a witness to the court, difficulties created by differences, for example, in time zones, appropriateness of audio-visual facilities for centrally important evidence, assessment of credit, difficulties raised by the use of documents that might be used in cross-examination, technological difficulties due to lapse of time between
transmission and receipt of questions and answers and the like and difficulties posed generally by use of audio-visual facilities where cross-examination might be, for example, lengthy.
As I’ve already said, the rule 392 should also be read in addition to and should not be seen as limiting the scope of rule 392 when one has reference to 39Q to Z of the Evidence Act. As I’ve said, they pretty much should be read together. Also, obviously, the relevant practice directions that are appropriate in a case such as this that have already been referred to. And they include – and I’ll just put them on the record – Practice Direction No. 1 of 2008 as well as Practice Direction No. 1 of 2010, which relates to, obviously, interpreters. Dealing then with the matter at hand, both counsel helpfully provided outlines of submissions, together with their argument and the relevant case law.
Exhibit 1 relates to the Applicant Plaintiff’s outline and exhibit 2 that was marked relates to the Defendant Respondent’s outline. I’ve read those and I’ve also taken into account what both parties have said. I’ve had the benefit of the time where I have received a copy of the transcript of what was stated by both counsel for the purpose of the application last week, which has come to me through the middle of this week, which has allowed me to also review that before giving this decision. It would be trite to say that both parties agree that the evidence of Ms Lu is centrally importance evidence that needs to be provided in relation to this matter.
Without going into any detail as to what that might be, there’s no dispute that her evidence is essentially very important for the Plaintiff to assist their case – on behalf of the Plaintiff – and equally, the Defendant argues it’s just as important that they have the fair ability to cross-examine her, because they also believe her evidence is centrally important to them to prove the contra to what is being suggested by the Plaintiff in the pleadings. The fact that a witness might have centrally important evidence, however, to provide in a proceeding is not alone a fact that is decisive against the use of audio-visual evidence. Mr Steele proposed that because it was centrally important, that it was important therefore, for any assessment of credit, that she should be present in the court in order that a proper assessment could be made by the relevant trial judge.
However, as I’ve said, the fact that her evidence would be centrally important as agreed by both parties doesn’t, as I’ve said, immediately infer that there should not therefore be any use of audio-visual evidence. It can, and the authorities that I’ve read and been referred to suggest, that audio-visual evidence may still be received, even notwithstanding if a witness might be centrally important, if the interests of justice is served. And that’s really the fundamental test that has to be applied with reference to the summary of matters that – as I’ve already referred to – by Austin J in ASIC v Rich.
It appeared to me, upon my review of the transcript and particularly exhibit 2, the Defendant’s submissions, that the primary submission that was made by the Defendants against having the Applicant give her evidence by audio-visual link is
that she should be deemed by this court to be a “reluctant witness”. Mr Steele’s submissions to the court, as well as in his exhibit number 2 in writing are, in essence, that her reluctance can be inferred by reference to her conversation that was contained in Ms Lee’s affidavit, document number 25. In particular, Mr Steele said that if one referred to it, specifically at paragraph 3, which took place on the 17th of September 2003, between Ms Lee, solicitor for the Plaintiff and Ms Lu, that when Ms Lu was asked by Ms Lee if she would come, she merely offered a number of reasons why she didn’t want to come.
She referred to, first up, Mr Steele pointed out, costs regarding travel, the fact that she might lose work and that it was submitted that it was nearly an afterthought by her that she then said that her parents would forbid her from coming in any event. That, it was submitted, on behalf of the defendants, demonstrated a reluctance on her part to give evidence at all, which would, obviously, then affect any assessment of her credibility by the trial judge in those circumstances. It was pointed out by Mr Steele that the obligations upon the Plaintiff to prove its case are not for the Defendant to do so for them and therefore, in those circumstances, particularly where there’s a reluctant witness who just simply doesn’t want to give evidence at all, that she should not be given the benefit of being allowed to be provided the opportunity to simply remain in China and perhaps not even come to give evidence.
Dealing with the first primary submission that was made by the defendants, which was the reluctancy of the witness Lu, that submission, in my mind, overlooks the following matters: it is clear in document number 15 – Ms Lee’s affidavit, particularly CL3-2 – that she’d already expressed what her parents’ position was to the Plaintiff well before her conversation with Ms Lee on the 17th of September 2013. She also had expressed, in her own affidavit – document number 4, page 11 of her affidavit that was relied on – that she was telling the Plaintiff that she was willing to help in any way she could. When one has regard to the timing of those two matters that I’ve just referred to, it therefore can’t be viewed as being simply an afterthought by her, when she then had her conversation with Ms Lee on 17th of September 2013, that she would use, as it were, an excuse that her parents were forbidding her to come at that point.
Clearly she was already expressing that view, quite clearly in my mind anyway, well before any conversation with Ms Lee took place on the 17th of September 2013. It is arguable that, clearly there is, as Mr Steele submitted, no evidence that the plaintiff was offering to pay costs for her travel or compensate her for any work loss that she might lose if she was required to come to Australia to give evidence. That again, unfortunately, in my mind, overlooks the fact that it wouldn’t obviate, nevertheless, the fact that her – where she lives with her parents, even if she is an adult – has been forbidden by her parents to come to Australia. The evidence by Ms Lee would’ve been more helpful, I suspect, had it been in better form from Ms Lu herself or from her parents, who could’ve sworn, in first person, as to their position. But nevertheless, the evidence is available.
Nevertheless, on an interlocutory matter such as this, that evidence could’ve been obtained and I’m willing to take it that what has been said to Ms Lee about her parents forbidding her to go and together with the two matters I’ve already just referred to suggest that that has, in fact, a true position from Ms Lu’s partner that she’s not simply using it as an excuse not to come. She therefore, in my mind, has also expressed that she was willing to give evidence by video, which is also subsequent to the points Mr Steele pointed out as it related to the conversation with Ms Lee on the 17th of September 2013.
For example, even though she may well have raised the issue of costs, work loss and the like and her parents forbidding her, nevertheless, at the end of the very last sentence of the conversation set out at paragraph 3 in document number 25 of Ms Lee, she says she would appear via video this time and that details needed just simply to be confirmed with her to do that. Mr Steele tried to suggest that because she believes she could simply give her evidence by in front of the computer at home, that that somehow should weigh on my mind; that she wouldn’t be willing to fulfil what is required under the Practice Direction, namely that she would have to give her evidence alone in suitable facility by herself by arrangement. That is merely a young person probably who is not necessarily familiar with how to give evidence and probably is familiar with, in my mind, the ability to talk on Skype, for example, in front of a computer or the like that she well may have thought that’s how it’s done.
However, I am aware that there was an affidavit filed in the proceedings by Ms Li who also says that her firm would be willing to comply with the requirements of the relevant practice direction as it relates to taking evidence by audiovisual link from a witness, particularly who’s located out of Australia which would include arranging a translator if one is required and would ensure that the practice direction was fulfilled. So, in my mind, little can be made of the fact that she herself mentioned that she might – thought she could give her evidence by computer in front of a – at home. The counsel for the defendant also raised several difficulties taking the evidence by audiovisual link and particularly there was a reference to Park v Citibank and, in particular, page 225 and the citation is 31 NSWLR 219.
In particular, where it was commented by the judge hearing that matter that if, as he referred to it, a VCF was made available to permit the particular gentleman to give his evidence, if it was made it might well be that the court would have no power to compel a witness to attend at an appropriate venue for the purpose of giving evidence or to compel a witness to answer any questions or otherwise to control the manner in which the witness might give its evidence and what that means is, as Mr Steele says, that therefore in this case, if one was to substitute the name of Ms Lu into those statements as set out in Park v Citibank Savings Limited that Justice Powell was referring to, that there’d be no sanction, in other words, if she simply refused to give evidence or didn’t even turn up to give evidence or refused to give a particular answer or, indeed, gave evidence that was unsatisfactory.
That, however, would, in my mind, be the case regardless of whether or not audiovisual was allowed or not. If she simply didn’t choose to come, whether it was
directed to her to come to Australia, this court has no power to compel her to give evidence. She’s a foreign national who lives in China and it would be her choice in any event if she chose to come or not, even if she was told to come and give evidence in person, if she chooses to answer questions at her own convenience or refuses to answer one or in fact is evasive or in fact chooses to give incorrect evidence. I would’ve thought the advantage would be to the defendants.
The trial judge would undoubtedly take that into account when assessing her voracity for truth or reliability as a witness which could only be, in my mind, work towards the advantage for the defendant to make a submission of that type to the trial judge who undoubtedly, in my mind, would more likely than not then not accept her evidence which, I think, as I understood the pleadings from the defendants, was the whole basis upon which they say she’s centrally important in any event that she is not of any assistance to the plaintiff. If any of those situations arose as referred to in Park, then I would’ve thought that the defence therefore have an advantage.
Counsel for the defendant also referred to some other concerns. It was accepted by both parties that there was a limited amount of documents, maybe five or so, I think, the suggestion – maybe a few more documents that would be referred to during the course of the cross-examination and some might require translation because, as I understood, some emails might need to be translated from English – sorry, from – yes – from English into Chinese and Chinese into English and the like.
However, what is clear is both counsel conceded that the documents would be potentially of short compass. There’s not a lot of documents involved and the cross-examination, as I understand it, would not be necessarily lengthy. Those two facts, as Mr Steele quite rightly pointed out, again, aren’t decisive. Simply because something’s short compass and simply because it mightn’t take very long to cross-examine, that it automatically means a witness should come by audiovisual link. I’m acutely aware that that is not decisive either, but nevertheless they are considerations that can be taken into account when determining, as a whole, whether the interests of justice could be served here in allowing her to give her audiovisual evidence.
There was also a suggestion that it would be unfair to allow – if she was to give audiovisual evidence where there’s some documents, even if they’re in short compass and even if they had to be translated in part because English is her second language, even though she does demonstrate a good grasp of it by way of reading and understanding it, as evidenced by her affidavit that I looked at, document number 4, it was submitted that nevertheless that would make it impossible or very difficult for a trial judge to be able to make an assessment of her, particularly if something had to be translated and then she had to comment or, indeed, even if one of her answers or questions asked had to be translated to allow her then to answer either in English or in translation.
That submission, in my mind, overlooks the fact that that would be the case, even if she was here and required translation. A translator – it’s trite to say that when witnesses are having either documents translated or their evidence translated that it
automatically will impact in any event, regardless of whether they’re in person or by audiovisual link, by the very nature of the receipt of the evidence. The fact it’s been given by translation doesn’t assist and makes it more difficult, obviously, for trial judges to make then an assessment of a witness who is being assessed on credit. Those allowances are made, however, by trial judges who have to appreciate that – and do appreciate that witnesses speak a variety of languages these days, generally.
Some are able to speak more than one and clearly Ms Lu can, but nevertheless English isn’t her first language, she may require translation and even if she was in here in person she may still require it and so, in my view, that would nevertheless still be accommodated, regardless of whether she was here or whether she was in Chian giving her evidence and would have to be in any event. The documents also that are the subject of cross-examination or to be put through her for the purpose of the plaintiff’s case have to be in any event under the practice direction, supplied in advance for a witness to have available to her. It’s something the trial judge can make sure on day 1 that both counsel have adhered to that and made sure that the witness has got that available to them in any event in advance.
It also – the practice direction requires that those who want to have a translator arranged – which the plaintiff has already set out they’re prepared to make sure there is one available for her – is usually borne in accordance with the practice direction I’ve referred to by those who want to have a translator available in civil cases. That’s already been accepted that the plaintiff is prepared to make the arrangement for a translator to be there. The fact that some of the documents might be short compass sometimes can lead to lengthy cross-examination regardless, but nevertheless the time difference between Shanghai and Australia is only two hours.
It’s not an enormous difference between, say, for example, here and London or other places around the world that might make it particularly difficult on witnesses who have to get out of bed at 2 am in the morning or 1 o’clock, for example, so that they can give evidence in a timely way here. So there’s not a problem that I see there. It’s also – normally, I accept what Mr Steele says that witnesses usually should be required to give their evidence in person, but the fact remains the same. The legislation allows and the Uniform Civil Procedure Rules allow for, nevertheless, the court to take evidence by other means and this is one of those ways and it can be made on the application to the court and the court, in the exercise of its discretion, to determine whether it should in the interests of justice or not grant it.
Mr Steele raised about the translator – the difficulties that might be associated with having one over there, rather than here. Document 4 which is Ms Lu’s affidavit, in my mind, seems to evidence a good understanding by her as to her ability not only to speak English, but read and indeed translate. What it is was annexures to her affidavit which she has then deposed to in English which has been translated and which she’s signed as having an understanding and an accurate account of what was contained in those emails and the documents. That, to me, suggests that she might well need translation on some matters, but she may predominantly may not. That’s a factor I can take into account and do.
I did raise to the parties as a matter of what I thought courtesy that in a recent experience, that I had difficulties what was – as Mr Amerena assisted me, was a reference to a puppet cartoon type program that was on many years ago on TV called The Thunderbirds where a witness down in Melbourne, for example, who was giving evidence by consent by audiovisual link in front of me in a civil trial recently appeared to be delayed and jerky in her motions and movements. However, I take solace in the fact that the Evidence Act and the provisions that I’ve referred to, 39Q to R, that apply here provide for circumstances where, if there’s a complete failure in that regard, 39S of the Evidence Act – evidence is obviously a healthy – what I might describe as in my own words – scepticism relating to audiovisual link and how it may or may not appear.
So I take solace in the fact also that 39R of the Evidence Act also provides that the court may, at any time, vary or revoke any direction made under the section on its own initiative or on application of a party to a proceedings. So, for example, if that becomes such a difficulty that it’s virtually impossible to make an assessment of Ms Lu’s evidence and it may not – it may well have just simply been the link that occurred at the time that I was watching a witness in Melbourne – then both Mr Steele and even Mr Amerena can discuss that with the trial judge who’s got more power available in any event to control the proceedings under those circumstances. So I – it will yet to be seen whether the witness – if she was giving audiovisual link – did come across to the point where it was possible to assess her credit.
That can only be determined at the time. It cannot be foreseen by me as a possibility or in all probability. Whilst it might have happened in one of my cases, I can equally say that on other occasions where I’ve had witnesses appear from the prison cells from local correctional centres that that problem doesn’t exist. So it will yet to be seen and I think the fears in that regard could nevertheless be obviated by the fact that the Evidence Act and the provisions Q to Z inclusive allow for the court to control and take control of those matters in any event, if they arise.
So in short, I see no need for anyone to be in the room with her if Ms Lu gives her evidence. There was an offer to that effect. Clearly, it would be helpful to have someone available near the room in order that if documents and further things needed to be done or communications needed to be conducted by telephone or the like that communications obviously could be made through the various persons instructing counsel to in order that to be facilitated, but I think the practice direction is clear that she should give her evidence in a room alone that’s suitable with a translator, if required, and that there should be somebody outside the room, if required, to facilitate any difficulties with documents and the like to get that moving through the course of the trial.
I’m confident the trial judge would be able to give those directions himself or herself in any event once the trial starts. So on balance, in the interest of justice, in light of the fact that her evidence is centrally important to the plaintiff to support its case, and without it they would be, in my view, restricted in being able to have their case fully ventilated to prove its case on behalf of the plaintiff who is, as I understand it, still
coming at this stage, I consider it is appropriate to allow her to give her evidence via audio-visual link from China.
There was a suggestion by Mr Steele on behalf of the defendants that she should simply get a visa too like the plaintiff. However, that overlooks the fact that at the moment it’s still dependant upon the plaintiff having the necessary documentation to show that she has money in the bank and is evidencing an intention to return back to China after she visits here for the purpose of giving evidence. As I understand it, both young women, Plaintiff and Ms Lu live with their parents and rely on their parents for support. It may be that simply their bank accounts on behalf – from their parents might be enough to satisfy those requirements. So for the directions that are being sought in addition to the audio-visual link, I’ll leave them as they are so that they can be made and if necessary can be brought back on if that becomes an issue relating to lack of documentation as it were. So because ‑ ‑ ‑
MR AMERENA: Your Honour.
HER HONOUR: Yes, sorry?
MR AMERENA: Before you make orders, could I just – your Honour, it’s true we offered to provide a translator but what we were offering was to provide a appropriately accredited translator here in Australia, not in China because otherwise we wouldn’t have an accredited – an independent and accredited ‑ ‑ ‑
HER HONOUR: No. No. That’s what I was worried about because we need an accredited translator from here.
MR AMERENA: Yeah. We will provide an accredited translator at court.
HER HONOUR: Right. Okay. Yep.
MR AMERENA: And I think it will work just as well from this end as from the other end anyway.
HER HONOUR: Yeah. Yeah. Probably better actually. Well see.
MR AMERENA: Yeah.
HER HONOUR: Okay. That’s no problem.
MR AMERENA: Thank you.
HER HONOUR: Because normally it has to be an accredited one from here anyway Mr Amerena. Otherwise it wouldn’t work. I wouldn’t think.
MR AMERENA: Yes. That’s exactly right. That’s why we’ve done it that way.
HER HONOUR: And that way there can be no suggestion that what’s being translated is not appropriate.
MR AMERENA: Yes. I think you’re better off with the accredited translator here.
HER HONOUR: With one here. I think that’s right. On the question of cost, each party asked for their own costs obviously. There has been notice – just on this point, there has been notice of Mr Lu’s difficulty, as I’ve said, relating to her parent’s prohibition, if I can call it that, as to her being able to travel as early as May 2013, Ms Lee’s affidavit suggests a phone call in September 17 2013. Unfortunately, in the material I have there has been no explanation as to why there was a delay in contacting her. There may well be a genuine one in that but nevertheless, the trail was already set and has been set for quite some time at the request of the parties, 23rd and 24th of October 2013.
The fact that parties do, if there’s not consent given by the other side, nevertheless still requires in any event a party to still come along and apply because it requires the exercise of a discretion by this court to grant whether audio-visual link should be given or not. It’s for those reasons that I consider that the plaintiff’s costs in the application before the court relating to audio-visual link should be costs in the proceeding only at this stage. I’ll allow the other costs to be reserved in relation to the other direction relating to the plaintiff itself, Mr Amerena.
MR AMERENA: Thank you.
HER HONOUR: Okay. So I’m just adjusting the order so that it reads this way just to allow the trial judge a little bit more ability under the Evidence Act.
MR AMERENA: Sure. Certainly.
HER HONOUR: I’m going to order:
That it is ordered pursuant to section 39R of the Evidence Act and rule 392 of the Uniform Civil Procedure Rules that Yan, Y-a-n, surname L-u or visa versa I think, but – be permitted to give her evidence at the trial at the separate questions set for hearing before this court, 24th and 25th of October 2013 by video link from Shanghai in the People’s Republic of China.
That this application for directions be adjourned to a date to be fixed.
That the plaintiff in the first, second and third defendants have liberty to apply on 24 hours notice in writing to the other.
Plaintiff’s costs of and incidental to the application as it relates to the audio-visual link or there only be costs in the proceedings – plaintiff’s costs in the proceedings.
That all other costs of and incidental to the application for directions will be reserved.
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