Over the last two years, we have moved to take evidence and conduct hearings by video-conferencing platforms as a consequence of the COVID-19 pandemic. Anecdotally, it seems many participants to litigation have simply moved across to video-conferencing and allowed their witnesses to give evidence other than in the jurisdiction of the court or tribunal. Two cases raise the question as to whether this is lawful where the witness is located outside of Australia. They are the cases of Motorola Solutions, Inc v Hytera Communications Corporation Ltd (Adjournment) [2020] FCA 539 (Motorola) and Haiye Developments Pty Ltd v Commercial Business Centre Pty Ltd [2020] NSWSC 732 (Haiye Developments).

Whilst these decisions are not particularly recent, they remain relevant in circumstances where anecdotally evidence is being given overseas. It also seems likely that many jurisdictions in Australia will continue to conduct some proceedings and receive evidence by video-conferencing platforms.

Both these cases touch on the following unique laws:

• the Civil Procedure Law of the People’s Republic of China (1991) (the Chinese law);
• the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Opened for signature 18 March 1970. 847 UNTS 231 (entered into force 7 October 1972) (Hague Convention).

Both Motorola and Haiye Developments concerned applications for adjournment shortly before listed trials were to commence.

The respondent in Motorola said that seven of its witnesses were located within the mainland of the People’s Republic of China. The plaintiffs in Haiye Developments said that three of their witnesses were located in the People’s Republic of China.

The parties each contended in their respective cases that by reason of the COVID19 pandemic and consequential travel restrictions, their witnesses were unable to travel.

Both parties submitted that Chinese law prohibited their respective witnesses being cross-examined via video-conferencing while being located in China. The taking of evidence by Australian court’s being an exercise of sovereignty by the Commonwealth within the territorial confines of China requiring the permission of the Chinese State.

Neither case considered the applicability of the Chinese law. Robb J said, at [57]:

It is reasonably arguable that the act of this court in taking evidence from a witness in a foreign country, by means of audio-visual equipment located in that country, would impinge on the sovereignty of that country, even in circumstances where the witness participated voluntarily. Even if that is wrong, as a matter of public international law, it could be well understood that foreign countries may consider such a process to involve an inappropriate impingement on their sovereignty. Whatever the Parliament of the state of New South Wales might think about the matter.

His Honour continued at [48]:

This consideration leads me to the only conclusion relevant to the disposition of the present application, which is that this court should take seriously the appearance that the process of taking evidence of the witness in the People’s Republic of China by audio-visual link could well be unlawful under Chinese law, as has been suggested, and furthermore, it may not be unreasonable for Chinese citizens located in that country to take the view that they should not risk being delinquent by giving evidence at the hearing in these proceedings by audio-visual means.

The critical takeaways for us as practitioners from these cases is that we must be very careful to be attuned to the risks that may be associated with a party seeking to adduce evidence in an Australia from a witness located in a different country. As both cases suggest that the procedure set out in the Hague Convention is quite slow, parties should turn their minds to activating those processes relatively early in the conduct of the proceeding.

Michael Sharkey

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