Liu v Option Funds Management Limited [2022] FCA 444

Liu v Option Funds Management Limited [2022] FCA 444

The Court granted leave because, balancing the relevant circumstances, permitting Mr Zhu to give evidence by video link from China was in the best interests of the administration of justice. His anticipated evidence was short, relatively uncontentious and peripheral; the defendants would not be materially disadvantaged in cross-examination; his serious health condition and inability to be vaccinated made international travel and COVID-19 exposure significant concerns; the situation in China remained fluid; Chinese law was not shown to prohibit the evidence; and allowing video evidence was consistent with the overarching purpose of the Court's civil procedure.

Jurisdiction
Australia
Judgment Date
11 April 2022
Procedural Posture
Commercial and Corporations Proceeding; Interlocutory Application for Leave to Give Evidence Via Video Link / Pre Trial Interlocutory Application, With Trial Listed to Commence on 6 June 2022
Outcome
Application granted; the second plaintiff was permitted to give evidence at trial via video link from the People's Republic of China, with costs of the interlocutory application to be the plaintiffs' costs in the cause.
Legal Topics
['evidence by Video Link' 'section 47 A(1) of the Federal Court of Australia Act 1976 (cth)' 'best Interests of the Administration of Justice' 'covid 19 Travel and Health Considerations' 'chinese Law and Evidence Collection' 'unconscionability and Special Disadvantage Allegations']
['practice and Procedure' 'commercial and Corporations' 'regulator and Consumer Protection'] ['evidence by Video Link' 'section 47 A(1) of the Federal Court of Australia Act 1976 (cth)' 'best Interests of the Administration of Justice' 'covid 19 Travel and Health Considerations' 'chinese Law and Evidence Collection' 'unconscionability and Special Disadvantage Allegations']

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Procedural Posture

Commercial and Corporations Proceeding; Interlocutory Application for Leave to Give Evidence Via Video Link / Pre Trial Interlocutory Application, With Trial Listed to Commence on 6 June 2022

Legal Issues

  1. 1 ["Whether the second plaintiff should be permitted to give evidence at trial via video link from the People's Republic of China." "Whether permitting evidence by video link would be in the best interests of the administration of justice having regard to the nature of the evidence, the second plaintiff's health, COVID-19 risks and travel restrictions." "Whether Chinese law, including art 284 of the Civil Procedure Law of the People's Republic of China, prohibited or weighed against the second plaintiff giving evidence by video link from China."]

Ratio Decidendi

The Court granted leave because, balancing the relevant circumstances, permitting Mr Zhu to give evidence by video link from China was in the best interests of the administration of justice. His anticipated evidence was short, relatively uncontentious and peripheral; the defendants would not be materially disadvantaged in cross-examination; his serious health condition and inability to be vaccinated made international travel and COVID-19 exposure significant concerns; the situation in China remained fluid; Chinese law was not shown to prohibit the evidence; and allowing video evidence was consistent with the overarching purpose of the Court's civil procedure.

Court Disposition

Application granted; the second plaintiff was permitted to give evidence at trial via video link from the People's Republic of China, with costs of the interlocutory application to be the plaintiffs' costs in the cause.

Orders

  • ["The second plaintiff be permitted to give evidence at the trial via video link from the People's Republic of China." 'The evidence of all witnesses at the trial is to be given orally other than the evidence of witnesses who have sworn and affirmed affidavits and are not required for cross-examination by the...