Dunbrae Pty Ltd v Armani Restaurant Pty Ltd [2022] NSWDC 308

Dunbrae Pty Ltd v Armani Restaurant Pty Ltd [2022] NSWDC 308

The application was refused because no approach had been made to the United Arab Emirates, the Court did not know whether the United Arab Emirates was a member of the Hague Convention or what its present laws provided about taking evidence in the proposed way, the civil matter was of modest quantum and could be conducted later without significant prejudice, and the judge was not confidently persuaded that an inferior State court acting under State legislation could permit the evidence without possible adverse ramifications for Mr Krich or international relations.

Jurisdiction
Australia
Judgment Date
03 August 2022
Procedural Posture
Civil / Part Heard Proceeding; Defendant/cross Claimant's Application for Mr Krich to Give Evidence From Dubai by Audio Visual Link
Outcome
Application for evidence to be taken by audio visual link from the United Arab Emirates denied.
Legal Topics
['audio Visual Link Evidence' 'taking Evidence From a Foreign Country' 'international Comity' 'foreign Sovereignty' 'hague Evidence Convention']
['civil Procedure' 'evidence'] ['audio Visual Link Evidence' 'taking Evidence From a Foreign Country' 'international Comity' 'foreign Sovereignty' 'hague Evidence Convention']

Case Brief

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Procedural Posture

Civil / Part Heard Proceeding; Defendant/cross Claimant's Application for Mr Krich to Give Evidence From Dubai by Audio Visual Link

Legal Issues

  1. 1 ['Whether Mr Krich should be permitted to give oral evidence by audio visual link from Dubai in the United Arab Emirates.' "Whether taking evidence by audio visual link from a foreign sovereign nation may offend that nation's sovereignty or have international relations ramifications." 'Whether the Court should exercise discretion under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B where no approach had been made to the United Arab Emirates and the relevant foreign law position was not established.']

Ratio Decidendi

The application was refused because no approach had been made to the United Arab Emirates, the Court did not know whether the United Arab Emirates was a member of the Hague Convention or what its present laws provided about taking evidence in the proposed way, the civil matter was of modest quantum and could be conducted later without significant prejudice, and the judge was not confidently persuaded that an inferior State court acting under State legislation could permit the evidence without possible adverse ramifications for Mr Krich or international relations.

Court Disposition

Application for evidence to be taken by audio visual link from the United Arab Emirates denied.

Orders

  • ["The defendant/cross claimant's application for Mr Krich to give evidence from Dubai in the United Arab Emirates by Audio Visual Link is denied."]