Xia & Anor v Santah Pty Ltd & Anor [2003] NSWSC 807

New South Wales Supreme Court

CITATION : Xia & Anor v Santah Pty Ltd & Anor [2003] NSWSC 807 HEARING DATE(S) : 1 September, 2003 JUDGMENT DATE : 1 September 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Application refused.

CATCHWORDS : EVIDENCE - AUDIO LINK - Application for the taking of evidence by audio link of witnesses in China - credit a substantial issue - evidence would probably be given through an interpreter. HELD: There would be no practical means for the Court to assess the demeanour and credibility of the witnesses if their evidence were given through an interpreter and via audio link. Eli Long Mei Xia - First Plaintiff PARTIES : Bao Tai Lu - Second Plaintiff Santah Pty Limited - First Defendant John Papadatos - Second Defendant FILE NUMBER(S) : SC 4249/01 COUNSEL : M.D. Broun QC - Plaintiffs P.P. Strasser - Defendants SOLICITORS : Solomon Pacific Legal - Plaintiffs Adams & Co Lawyers - Defendants

1 In these proceedings the Plaintiffs sue the Defendants for wrongful interference with the Plaintiffs' business. A number of witnesses are to be called by both sides. Principally in contention seems to be what was said and done between the various parties and their respective employees at a certain period of time and not much depends upon documentary evidence. 2 Central to the issues in the case is the issue of credit. From what I have seen so far, it is quite clear to me that the Plaintiffs' version of events is in very material respects strenuously contested by the Defendants. 3 The present application is an application by the Plaintiffs for leave to adduce the evidence of two witnesses by audio link. The circumstances are that these two witnesses, who were formally in the employ of the Plaintiffs, departed to China some twelve months ago. They are presently resident in China and they are not able to attend with any degree of convenience a centre at which a video link facility may be used. The only facility apparently available to them by means of which they could give evidence is an audio link. 4 The Defendants oppose the granting of leave to adduce the evidence of these witnesses by audio link. Mr Strasser, who appears for the Defendants, makes these points. Firstly, he says that the central issue in the cross examination of these two witnesses will be credit. The Plaintiffs are claiming very substantial damages from the Defendants, including exemplary damages. The conduct of the Defendants' employees is therefore very much in issue. It is to that conduct that the evidence of these witnesses relate. 5 Mr Strasser then makes the point that not only will the usual advantages of a cross examination in the presence of the Court be denied in this case, but even the second best option, that is a video link, will be denied. The Court will therefore simply have questions addressed in cross examination by Counsel here and the only response which I will receive and be capable of understanding will be the voice of a Chinese interpreter who will probably have to assist these two witnesses to give their evidence. 6 It seems to me that this manner of giving evidence is far to too remote to be of any assistance to the Court in assessing the credibility of these two witnesses. As I say, the only evidence that I will have the opportunity of assessing is the voice of the Chinese interpreter at the other end of the telephone line. Mr Broun QC, who appears for the Plaintiffs, makes the point that the interpreter may be in Sydney. Whether the interpreter is in Sydney or in China, I will really be hearing the evidence of the interpreter and will not have the means of assessing in any way the demeanour of the witnesses themselves, as I might be able to do if the evidence were given by video link. 7 The next point is that these two witnesses do not give evidence covering the whole of the range of issues between the parties. There are some eleven witnesses to give evidence for the Plaintiffs, including the Plaintiffs themselves. The witnesses the subject of this application are to give evidence about what is said to be two relatively minor incidents out of a number of incidents which make up the Plaintiffs' complaints. 8 Bearing in mind that these witnesses are not the central witnesses in the Plaintiffs' case and that their evidence, if permitted to be given by audio link, will be impractical of assessment as to credit by the Court, it seems to me that the Defendants will suffer undue prejudice if this application is allowed. 9 For those reasons, it seems to me that the Plaintiffs have not made out a sufficiently strong case to warrant a dispensation from the usual requirement that evidence be given by witnesses present in Court. Accordingly, the application is refused. 10 Costs of the motion will be costs in the cause. – oOo –