Supreme Court New South Wales Medium Neutral Citation: Li v Wang (No. 3) [2024] NSWSC 661 Hearing dates: 28 May 2024 Date of orders: 28 May 2024 Decision date: 28 May 2024 Jurisdiction: Common Law Before: Lonergan J Decision: Evidence of Subo Zhang, Zhongpeng Wang and Fenglan Su to be given by audio visual link. Catchwords: PRACTICE & PROCEDURE – Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B – cross-examination of witnesses in China – evidence regarding credibility of plaintiff – two witnesses cannot attend court in Australia as no passport or visa – not unfair to allow evidence by AVL – in the interests of justice to allow evidence by AVL Legislation Cited: Evidence (Audio and Audio Visual Links) Act 1998 (NSW) Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Li v Wang (No. 2) [2024] NSWSC 649 In the matter of Mulberry Capital Management Pty Ltd v Shen - AVL Application [2022] NSWSC 1023 Category: Procedural rulings Parties: Bin Li (Plaintiff) Changshun Wang (First Defendant) Jianrong Su (Second Defendant) Zisu Wang (Third Defendant) Representation: Counsel: H Fielder (Plaintiff) A Berriman (Second & Third Defendants) Solicitors: Li Feng Lawside Lawyers (Plaintiff) Luminous Legal (Second & Third Defendants) File Number(s): 2021/00330140 Publication restriction: Nil REVISED EX-TEMPORE JUDGMENT 1. By notice of motion filed on 2 April 2024 the second and third defendants seek an order under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) ("the Act") that Subo Zhang, Zhongpeng Wang and Fenglan Su give evidence by way of audio visual link at the hearing of the proceedings. 2. I have outlined the nature of the proceedings in a judgment delivered this morning in respect of an application by the plaintiff for two of her witnesses to give evidence by audio visual link, an application which I granted: Li v Wang (No. 2) [2024] NSWSC 649 ("Li v Wang (No. 2)") at [8] to [17]. The witnesses in respect of which I granted the plaintiff's application are resident in China and are Chinese Mandarin speakers who will require an interpreter, and who will be cross-examined by the legal representative for the second and third defendants at the trial. 3. The principles that apply to applications of this nature have been set out in this morning's judgment: Li v Wang (No. 2) at [25] to [26]. 4. The plaintiff opposes the second and third defendants' application and has in helpful written and oral submissions outlined why she takes that approach. 5. The three witnesses are not technically relevant to any direct fact in issue in the proceeding which concerns a loan provided by the plaintiff to the named defendants, but rather they give evidence that seeks to undermine the plaintiff's credibility. 6. Two of the witnesses, Mr Wang and Ms Zhang, address the question of an allegation of fake hospital certificates deployed by the plaintiff in some context at some time, and therefore their evidence is only relevant to the issues concerning the plaintiff's credibility. 7. As correctly submitted by counsel for the plaintiff, the starting point as provided for in r 31.1 of Uniform Civil Procedure Rules 2005 (NSW) is that a party should give oral evidence and generally that involves physical presence for cross-examination unless the Court permits departure from that practice. 8. As I observed this morning in Li v Wang (No. 2), that position was significantly varied during the COVID-19 pandemic where everybody, including counsel, participated in legal proceedings and hearings, including regarding complex matters which required extensive cross-examination, remotely, using audio visual technology. 9. Cases pre-COVID-19 are replete with references to cross-examination by video link having "significant limitations" particularly on questions about reliability and credibility. It is fair to say that since the COVID-19 pandemic, technology for audio visual link evidence used by courts and other businesses has improved exponentially. I take judicial notice of that fact. 10. In respect of the third witness the subject of the application, her affidavit ranges more widely but has a great deal of material in it of questionable weight and relevance. This obviously is a matter for the trial judge. Nevertheless it is evident she too will require fairly extensive cross-examination using a Mandarin interpreter. 11. As stated by Hammerschlag CJ in Eq in In the matter of Mulberry Capital Management Pty Ltd v Shen - AVL Application [2022] NSWSC 1023 at [20]: "[20] It is preferable generally, and in particular where credit is in issue, for the protagonists to be present in Court. But it is also true that technical deficiencies such as unstable connections and transmission lag times which in the past were significant impediments to effective cross examination remotely are (to the extent that they still exist) no longer anywhere near as significant as they once were." 1. His Honour in that decision was dealing with an application for witnesses to give evidence from China with the use of a translator. His Honour made the following salient observations, which I adopt and consider relevant to the circumstances here, at [24] and [25]: "[24] Specifically with respect to credit findings, experienced trial judges know that assessing the credit of a witness whose evidence is given via a translation has limitations not present when the evidence is given in English. Evidence given via a translator has the capacity to undermine (in whole or in part) some of the forensic advantages which cross examining counsel would otherwise have. In my opinion, where evidence is given by translation, the disadvantage suffered by that fact will not be intensified by dint only of the evidence being given remotely, particularly if the translator is present in and under the control of the Court. The presence of the disadvantage because of translation reduces the significance of any disadvantage suffered by lack of presence. [25] I do not accept that a remote hearing increases the scope for misunderstanding and error with respect to accurate translation." 1. His Honour went on to make observations that the way to manage some of the practical difficulties, was to ensure that certain arrangements were in place for the giving of evidence at a remote location and for the parties to arrange an appropriately technically adequate platform and for the translator to be physically present in the courtroom in Sydney. 2. There is wisdom in those arrangements and the mechanical orders his Honour imposed, but most importantly, it highlights what I consider to be the problem with the plaintiff's opposition to the defendants' application that there is somehow unfairness to the plaintiff having to cross-examine witnesses who are not physically present in the court. 3. I have taken the view that there is nothing unfair in these witnesses having to give evidence by audio visual link, rather than being present in the courtroom. 4. In the affidavit material relied on by the defendants there are particular additional reasons that indicate that it is not unfair to the plaintiff, but would be unfair to defendants, if I refused to make the order. In respect of witnesses Fenglan Su and Subo Zhang, neither of these women have a valid visa. Ms Zhang told the solicitor that she has a fear of flying and does not hold a passport. Ms Su has had an application for a visa to travel to Australia recently rejected. This means she cannot travel to Australia. 5. This has the end effect that if I do not make the order allowing evidence to be given by audio visual link, neither witness can be cross-examined. 6. The practical way in which the presiding trial judge may decide to deal with their unavailability is a matter for that trial judge but one option at least would be that the witnesses are "unavailable" within the meaning of the Evidence Act 1995 (NSW) and so their statements would go into evidence untested. 7. Obviously that would be very unsatisfactory but in circumstances where I have affidavit evidence that these women cannot legally make their way to Australia to be physically present in this Court in Sydney, it is difficult to see how it could be said to be unfair to the plaintiff to make a s 5B order where that may be the only way the witnesses can be cross-examined on the contents of their filed affidavits. 8. It was submitted that the witnesses ought to be physically present in court so that they can understand the solemnity of the occasion and the role they play in solemn civil proceedings. 9. That is a matter that is relevant, but in circumstances where many trials, many thousands of trials were run during COVID-19 using audio visual link, I do not consider solemnity cannot be communicated by methodology other than physical presence in court. It can be communicated by the way proceedings are conducted, the demeanour of the trial judge, the demeanour of counsel and the formal processes that will be adopted, albeit by audio visual link. 10. In respect of Mr Wang, he is a solicitor, and I have no reason to believe that he would do anything other than act in accordance with probity and the requirements of a legal practitioner when providing evidence on oath or affirmation to a Court. 11. Accordingly, on the application of the test in s 5B, I am not satisfied that it would be unfair to the plaintiff for the named witnesses to give evidence by audio visual link. It seems to me I should make the order sought in the notice of motion and I am satisfied that it is in the interests of justice to do so: (s 5B(3) of the Act). I add to that order some practical orders as to how that should be accomplished. 12. I make the following orders: 1. Pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), the Court grants leave for the following persons to give evidence by audio-visual link: Subo Zhang, Zhongpeng Wang and Fenglan Su at the hearing of these proceedings commencing on 17 June 2024. 2. In respect of the witnesses named in order 1, the second and third defendants are to ensure that, at the time a witness gives her or his evidence, no one else will be present in the hearing room save for an independent person whose presence is necessary to assist or deal with any technical or administrative issues whose names and details must be communicated to the plaintiff's solicitors in writing not later than seven days before the commencement of the hearing. 3. The second and third defendants are to arrange for a technically adequate platform, including the availability of a screen for documents to be shown to any witness, as well as a physical court book in the same form as that provided to the Court. 4. The second and third defendants are to bear the costs of the establishment of the platform and the making of all administrative arrangements for the taking of the evidence, those costs to become costs in the cause unless the Court otherwise orders. 5. The parties are to arrange for the presence of an official interpreter in the courtroom in Sydney. Costs 1. As the second and third defendants' notice of motion was successful, costs should follow the event. I order that the plaintiff is to pay the second and third defendants' costs of the notice of motion filed 2 April 2024. 2. The parties will need to approach the trial judge before the commencement of the trial with details and evidence regarding the location from where each witness will give evidence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2024