Commissioner of the Australian Federal Police v Fu (No 5) [2016] NSWSC 121

Commissioner of the Australian Federal Police v Fu (No 5) [2016] NSWSC 121

The Court was not persuaded that the hearing date should be vacated or that evidence should be taken on commission because the evidence showed practical possibilities for alternative audio-visual or internet-based links from China, the witnesses could travel some distance with assistance to access such a link, the family appeared able to meet necessary costs, the matter had been known for months, and s 63 of the Evidence Act 1995 (NSW) provided a possible alternative if the witnesses were unavailable. The alternative telephone evidence order was refused as premature and better left to the trial judge once the position became clearer.

Jurisdiction
Australia
Judgment Date
24 February 2016
Procedural Posture
Application for Vacation of a Hearing Date in Relation to an Application Pursuant to S 29 of the Proceeds of Crime Act 2002 (cth) / Notice of Motion Dated 10 February 2016 and Alternative Application for Evidence to Be Taken by Telephone Before the Scheduled Hearing on 29 February 2016
Outcome
The notice of motion and the alternative application were dismissed, with Ms Qiong Fu and Ms Ya Qing Shi ordered to pay the plaintiff's costs of the hearing.
Legal Topics
['restraining Orders' 'exclusion of Property From Restraining Orders' 'vacation of Hearing Date' 'evidence on Commission' 'remote Evidence' 'telephone Evidence' 'unavailable Witnesses']
['proceeds of Crime' 'civil Procedure' 'evidence'] ['restraining Orders' 'exclusion of Property From Restraining Orders' 'vacation of Hearing Date' 'evidence on Commission' 'remote Evidence' 'telephone Evidence' 'unavailable Witnesses']

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Procedural Posture

Application for Vacation of a Hearing Date in Relation to an Application Pursuant to S 29 of the Proceeds of Crime Act 2002 (cth) / Notice of Motion Dated 10 February 2016 and Alternative Application for Evidence to Be Taken by Telephone Before the Scheduled Hearing on 29 February 2016

Legal Issues

  1. 1 ['Whether the hearing date for the s 29 Proceeds of Crime Act 2002 (Cth) application should be vacated.' "Whether evidence from Mr Jing Gao Fu and Ms Ya Chun Shi should be taken on commission in the People's Republic of China." 'Whether an alternative order should be made under r 31.3 of the Uniform Civil Procedure Rules 2005 (NSW) for evidence from Mr Jing Gao Fu and Ms Ya Chun Shi to be taken by telephone.']

Ratio Decidendi

The Court was not persuaded that the hearing date should be vacated or that evidence should be taken on commission because the evidence showed practical possibilities for alternative audio-visual or internet-based links from China, the witnesses could travel some distance with assistance to access such a link, the family appeared able to meet necessary costs, the matter had been known for months, and s 63 of the Evidence Act 1995 (NSW) provided a possible alternative if the witnesses were unavailable. The alternative telephone evidence order was refused as premature and better left to the trial judge once the position became clearer.

Court Disposition

The notice of motion and the alternative application were dismissed, with Ms Qiong Fu and Ms Ya Qing Shi ordered to pay the plaintiff's costs of the hearing.

Orders

  • ['The notice of motion of 10 February 2016 is dismissed.' 'The application for an alternative order by Ms Qiong Fu is dismissed.' 'Ms Qiong Fu and Ms Ya Qing Shi must pay the costs of the plaintiff of the hearing before me.']