He v Chen
[2024] NZHC 23
•25 January 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2014-404-3369
[2024] NZHC 23
BETWEEN YAO WEI HE
Plaintiff
AND
ZHIXIONG CHEN
Defendant
Hearing: On the papers Counsel:
Plaintiff unrepresented
C Jiang and K Mills for Defendant
Judgment:
25 January 2024
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 25 January 2024 at 4.15 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Tompkins Wake, Auckland
HE v CHEN [2024] NZHC 23 [25 January 2024]
[1] In this proceeding, Mr He sues Mr Chen for breach of their alleged joint venture agreement relating to a business that exported goods to China. Mr He also claims for breach of fiduciary duty, in money had and received, and for Companies Act breaches relating to the joint venture, and further in respect of an investment he says he made with Mr Chen in Hong Kong, which has not been repaid. There has been very serious delay in determination of the proceeding, it having been brought in December 2014. By judgment dated 17 February 2023, Associate Judge Gardiner dismissed Mr Chen’s application to strike the proceeding out for want of prosecution, or alternatively because the causes of action are not arguable and the proceeding has become an abuse of process.1 As the Judge then observed, the trial is set for February 2024.
[2] Mr Chen has applied for orders that he and three other witnesses be permitted to give evidence during the trial via audio visual link (AVL) in accordance with the protocol for participation in remote hearings applicable in the Senior Courts. I use the term AVL broadly, in accordance with the definition at s 3 of the Courts (Remote Participation) Act 2010 (Act), to include attendance via “Virtual Meeting Room” (VMR) technology, rather than narrowly to suggest an audio visual link specifically established independently of the Court and trial participants via external telecommunications agency. Mr He opposes.
[3]This judgment determines Mr Chen’s application.
Jurisdiction
[4] There is no default position or presumption in favour of giving evidence in the ordinary way.2 AVL may be used for the participation of witnesses in a civil proceeding if a judicial officer or registrar determines to allow its use.3 Such a determination must be made in accordance with criteria set out in s 5 of the Courts Remote Participation Act 2010, and take into account whether or not the parties consent.4 Section 5 states the criteria for consideration as follows:
1 He v Chen [2023] NZHC 119.
2 V (CA492/10) v R [2011] NZCA 525 at n 8 citing R v Shone [2008] NZCA 313 at [28].
3 Courts Remote Participation Act 2010, s 7(1).
4 Section 7(3).
(a)the nature of the proceeding:
(b)the availability and quality of the technology that is to be used:
(c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—
(i)the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and
(ii)the level of contact with other participants:
(d)any other relevant matters.
Grounds of application
[5]Mr Chen’s application is made on the grounds that:
(a)He resides in China and has not resided in New Zealand for a number of years.
(b)He has underlying health issues and travelling to New Zealand via a long haul flight will adversely affect his health.
(c)Travel to New Zealand will adversely affect his “real estate development businesses”, which requires attention during the present “real estate crisis” in China;.
(d)The additional witnesses are not parties to the proceeding, do not reside in New Zealand, and are not fairly or reasonably required to travel to New Zealand.
Mr He’s position
[6] Mr He submits that Mr Chen and the other witnesses should be required to travel to New Zealand to give evidence in person because:
(a)It would be hard for the Court to assess their credibility, and if they chose to lie there would be little the Court could do to sanction them.
(b)Parts of the trial (at least) will require translation and it would be “even harder” should AVL evidence be permitted.
(c)A substantial common bundle of documents, comprised of more than 300 separate documents and more than 1000 pages, will be used during the trial. Practical difficulties are therefore likely to arise, an issue Mr He suggests may be exacerbated intentionally “if the hearing is going bad for Mr Chen”.
[7] Mr He is concerned that the witnesses may collaborate or be coached. He submits that the allegations he makes in these proceedings provide some foundation for this concern. Mr He also submits that:
(a)Mr Chen is a property investor rather than developer, and his business does not require his attendance in China during the trial; and
(b)Mr Chen’s health concerns are not so substantial that he cannot travel.
Discussion
[8] The proceeding is an ordinary civil proceeding dealing with the question of financial liability as between private individuals. Its nature does not of itself suggest the desirability of personal attendance by witnesses.
[9] Experience during the COVID-19 pandemic has shown that VMR technology supporting the remote participation of witnesses is widely available internationally, is of good quality, and is relatively easy to use.
[10] Mr He’s concerns about collaboration and coaching appear purely speculative. In general, evidence by AVL has not been seen as adversely affecting the assessment of credibility.5
5 R v Simi [2008] NZCA 515 at [26].
[11] More particularly, when declining Mr Chen’s strike out application, Associate Judge Gardiner observed that albeit the parties’ recollections of conversations about the joint venture will have dimmed, their respective accounts have already been the subject of affidavits and briefs of evidence. And a quantity of financial and accounting records have been discovered.6 It therefore appears there is documentary material available against which the credibility of witnesses may be assessed.
[12]As Thomas J wrote in Burden v Debonaire Furniture Ltd:7
… New Zealand courts focus on a critical analysis of the evidence with an emphasis on consistency and how the evidence relates to other material. There is little support for the notion that demeanour is a reliable indicator of credibility. This context is important when considering the observations which have been made in various cases about the potential difficulty in assessing credibility when a witness gives evidence by AVL
[13] Accordingly, I do not consider that the witnesses being called via AVL will affect the Court’s ability to assess their credibility.
[14] The proposed AVL witnesses do not require to be kept apart from other trial participants for safety reasons. The level of contact they might have with other participants is not therefore a reason in favour of AVL, as on occasion it is in other cases. That said, there is as I have noted no evidential foundation for any concern as to collusion between them. In any event, they have had many years to have discussed the case. I do not consider that giving evidence via AVL rather than in person will limit any opportunity that may have arisen for inappropriate contact between them, or will provide the trial Judge with any lesser ability to detect the result of such contact.
[15] In light of those observations, I do not consider Mr Chen’s reasons for being disinclined to travel to New Zealand to require particular scrutiny. He will have been advised that on occasion witnesses giving evidence by AVL find it difficult to establish rapport with the tribunal of fact. And in light of the extensive delay in determination of this proceeding he will understand that adjournment of the fixture is most unlikely, even if unexplained technical difficulty with AVL arises. Any risk of prejudice arising
6 Above n1, at [53], [54] and [58].
7 Burden v Debonaire Furniture Ltd [2017] NZHC 1553 at .
through the proposed use of AVL therefore appears to be faced by Mr Chen, rather than Mr He.
Result
[16] Mr Chen’s application is granted. The witnesses the subject of that application may give evidence during the trial in this proceeding via VMR, on condition that:
(a)the protocol for participation in remote hearing applicable in the Senior Courts is observed;
(b)Mr Chen ensures his witnesses are adequately educated in the use of VMR;
(c)the VMR technology used is capable of displaying to witnesses the entirety of the documentary material contained in the common bundle, or otherwise offered with the leave of the trial Judge by any party; and
(d)Mr Chen accepts the risk of incompetent use or technical failure of the VMR facility is likely to fall to his substantive detriment, subject to the trial Judge finding otherwise.
Johnstone J
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