Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153

Auken Animal Husbandry Pty Ltd v 3RD Solution Investment Pty Ltd [2020] FCA 1153

Leave is granted for the applicant's eight witnesses resident in China to give evidence by audio visual link, as practical and legal obstacles have been addressed, COVID-19 creates indefinite delay otherwise, and appropriate safeguards can ensure fairness in examination, interpretation, and integrity of evidence. The applicant's application for a notice order as a precursor to a freezing order is refused due to lack of evidence of a real risk of asset dissipation and sufficiency of undertakings already offered by the respondents.

Jurisdiction
Australia
Judgment Date
11 August 2020
Procedural Posture
Interlocutory Application in Commercial Proceedings / Interlocutory Determination Prior to Trial
Outcome
Interlocutory application for leave to adduce overseas evidence by video link granted conditionally; application for notice order refused; costs in the cause, with liberty to apply for reconsideration.
Legal Topics
['video Link Evidence' 'international Evidence Taking' 'freezing and Notice Orders' 'fraud Allegations' 'lease Disputes']
['practice and Procedure' 'commercial Law'] ['video Link Evidence' 'international Evidence Taking' 'freezing and Notice Orders' 'fraud Allegations' 'lease Disputes']

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Procedural Posture

Interlocutory Application in Commercial Proceedings / Interlocutory Determination Prior to Trial

Legal Issues

  1. 1 ['Whether evidence of overseas witnesses can be given by video link from China under Australian and PRC law' 'Whether the conditions of COVID-19 pandemic and resulting travel restrictions justify leave for video link evidence' 'Whether appropriate safeguards exist for cross-examination and interpretation over video link' 'Whether a notice order restraining dealings with proceeds of farm sale should be granted as a precursor to a possible freezing order']

Ratio Decidendi

Leave is granted for the applicant's eight witnesses resident in China to give evidence by audio visual link, as practical and legal obstacles have been addressed, COVID-19 creates indefinite delay otherwise, and appropriate safeguards can ensure fairness in examination, interpretation, and integrity of evidence. The applicant's application for a notice order as a precursor to a freezing order is refused due to lack of evidence of a real risk of asset dissipation and sufficiency of undertakings already offered by the respondents.

Court Disposition

Interlocutory application for leave to adduce overseas evidence by video link granted conditionally; application for notice order refused; costs in the cause, with liberty to apply for reconsideration.

Orders

  • ["Leave for eight witnesses identified in applicant's interlocutory application to give testimony by video link from Shanghai, PRC, subject to specified conditions regarding venue, presence of persons, document access, interpretation, and technical support." "Applicant's interlocutory process otherwise dismissed."...