To most of the world, Australia is considered a migrant society. Many of us come from different countries and may still have connections in these other countries. During a court case, these connections can sometimes give useful or even crucial evidence in your favour, or you yourself, may also be located in a different country at the time you are required to give evidence on your case.
In these extraordinary times, the various States and the Federal parliament have made changes to cope with COVID 19 and the lockdowns that come with it, allowing for the witnessing of affidavits through video link and/or conducting Court hearings and trials using audio-visual link. This has made the obtaining of evidence across geographical locations much more simple, however, before jumping into AVL, it may be important to ensure you are not offending the laws of any foreign countries.
One such example is the case of Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (Adjournment)  FCA 539, where Hytera was successful in obtaining an adjournment so that a number of its witnesses who were located in mainland People's Republic of China could attend to give evidence in person, notwithstanding the fact that the entire trial was going to be conducted virtually through audio-visual link, because doing so from their location would have contravened the Civil Procedure Laws of the People’s Republic of China.
The article of concern in this case is Article 277 of the Civil Procedure Laws of the People’s Republic of China, which allows a foreign embassy or consulate to serve processes and/or take evidence from its own citizens in Chinese Territories but forbids any other “foreign agencies or individuals” from “serving documents, carrying out an investigation, or collecting evidence” in Chinese territories.
The words “carry out an investigation, or collect evidence” can have very broad implications and include acts well beyond the giving of evidence by AVL in the People’s Republic of China. These implications can potentially include even a simple witness conference for the purpose of preparing an affidavit or the swearing or witnessing of an affidavit, statement, or statutory declaration. Whilst the correct method is to make use of the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, to obtain such evidence, the process can be very inefficient and may even take years to complete.
So, What Is The Lesson Learnt?
Before acceding to your lawyer’s request to swear an affidavit or sign some documents from a foreign location, it may be useful to first consult a local lawyer at the location to ensure that you are not infringing the local laws as such evidence can be deemed as improperly or unlawfully obtained and be omitted from the case.
Alternatively, if you expect yourself to be present in a different location from where your case is started, be sure to instruct a lawyer who is familiar with cross-border litigations and international law. At Longton Legal, we have many lawyers who have practiced in cross-border litigation and some even holding qualifications to practice in foreign jurisdictions. If you have any enquiries, please contact Jason Neo, the Author of this article, who is familiar with cross-border litigation and the laws governing civil litigation in the Republic of Singapore, Malaysia and The People’s Republic of China.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*
Special Counsel | Accredited Family Law Specialist NSW
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