FEDERAL COURT OF AUSTRALIA

Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95

FEDERAL COURT OF AUSTRALIA

Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95

CORRIGENDUM

1                     In order 5 of the orders made by the Full Court in proceeding QUD 187 of 2011 on 19 August 2011, the number “95” should read “195”, so that the amended order reads “unless otherwise ordered, Mr Joyce’s evidence in action No QUD 195 of 2009 be given by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), such evidence to be given on oath or affirmation.”

2                     In paragraph 67 of the Reasons for Judgment of the Full Court, in order 5 of the orders proposed in connection with notice of motion No QUD 187 of 2011, the number “95” should read “195”, so that the amended proposed order reads “that unless otherwise ordered, Mr Joyce’s evidence in action No QUD 195 of 2009 be given by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), such evidence to be given on oath or affirmation.”

Associate:

Dated: 26 August 2011

THE COURT ORDERS THAT:

1. pursuant to the notice of motion filed on 26 July 2011, the applicant on that notice of motion (“Mr Joyce”) have leave to appeal from the whole of the judgment of the Federal Court of Australia constituted by the Honourable Justice Logan RFD in action No QUD 195 of 2009, given on 19 July 2011 at Brisbane, wherein his Honour dismissed Mr Joyce’s motion that his evidence at trial be given by way of video link from Dubai in the United Arab Emirates, notice of which motion was filed on 1 July 2011, and stayed the same action until further order;

2. Mr Joyce have leave to file and serve a notice of appeal substantially in the form of “annexure A” to the notice of motion filed on 26 July 2011;

3. the appeal be heard instanter and allowed;

4. orders 1, 4, 5, 6 and 7 of the orders made by the Honourable Justice Logan RFD on 19 July 2011 be set aside;

5. unless otherwise ordered, Mr Joyce’s evidence in action No QUD 95 of 2009 be given by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), such evidence to be given on oath or affirmation;

6. unless any party, within 7 days of the publication of these reasons, files a notice of motion seeking some other order as to costs, the costs of and incidental to the notice of motion filed on 1 July 2011, and of the hearing and determination thereof, the costs of this application for leave to appeal and the costs of the appeal be costs in the cause;

7. in the event that such a notice of motion is filed, the parties, within 7 days, file agreed directions as to the delivery of written submissions concerning costs and comply with same;

8. this order, in draft form, be sent forthwith by the District Registrar to the Department of Foreign Affairs and Trade;

9. this order lie in the registry for 7 days after the publication of these reasons; and

10. the parties have liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1. pursuant to the notice of motion filed on 26 July 2011 the applicants on that notice of motion (“Prudentia” and “Mr Reed”) have leave to appeal from the orders of the Honourable Justice Logan RFD made on 19 July 2011 in action No QUD 195 of 2009;

2. Prudentia and Mr Reed have leave to file and serve notices of appeal substantially in the form of “annexure A” to the notice of motion;

3. the appeals be heard instanter and allowed;

4. orders 1, 4, 5, 6 and 7 of the orders made by the Honourable Justice Logan RFD on 19 July 2011 be set aside;

5. unless otherwise ordered, the evidence of Matthew James Joyce in action No QUD 195 of 2009 be given by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), such evidence to be upon oath or affirmation;

6. the matter be otherwise remitted to the primary Judge for determination;

7. unless any party, within 7 days of the publication of these reasons, files a notice of motion seeking some other order as to costs, the costs of and incidental to the notice of motion filed on 1 July 2011, and of the hearing and determination thereof, the costs of this application for leave to appeal and the costs of the appeal be costs in the cause;

8. in the event that such a notice of motion is filed, the parties, within 7 days, file agreed directions as to the delivery of written submissions concerning costs and comply with same;

9. this order, in draft form, be sent forthwith by the District Registrar to the Department of Foreign Affairs and Trade;

10. this order lie in the registry for 7 days after publication of these reasons; and

11. the parties have liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE PRIMARY PROCEEDINGS

1                     In proceedings commenced in this Court in 2009, the first and second applicants (the “Sunland companies”) claim damages pursuant to s 82 of the Trade Practices Act 1974 (Cth) and, alternatively, damages for the tort of deceit, together with interest and costs (the “Australian proceedings”). The claim arises out of representations allegedly made by the third and fourth respondents (respectively, “Mr Reed” and “Mr Joyce”). It is alleged that those representations led the Sunland companies to enter into contracts with the first and second respondents (respectively, “Prudentia” and “Hanley”) concerning the acquisition of land in the United Arab Emirates (the “UAE”). Mr Joyce is a necessary witness in the proceedings, both in his own defence and in those of Prudentia and Mr Reed. The Sunland companies are also anxious to cross-examine him. Logan J is the docket Judge.

THE UNITED ARAB EMIRATES

2                     As we understand it, the UAE is a federation of states, one of which is Dubai. Australia has an ambassador located in Abu Dhabi, which is another state of the federation. We infer that the ambassador is accredited to the UAE. There is a consulate general in Dubai. In this matter, the parties have drawn no distinction between the law of the UAE and the law of Dubai.

TAKING MR JOYCE’S EVIDENCE AND THAT OF OTHER WITNESSES

3                     At the time at which the Australian proceedings were commenced, Mr Joyce had already been charged in the UAE with criminal offences arising out of the same transactions and was a party to civil proceedings in the UAE, also arising out of those transactions. The criminal and civil proceedings are still in train. In connection with the criminal proceedings, Mr Joyce has been granted bail but has surrendered his passport. His bail conditions prevent him from travelling to Australia to participate in the Australian proceedings. It is expected that before the end of the year, there will be a decision in the UAE criminal proceedings. The Australian proceedings are substantially ready for trial. During 2010 and this year, attempts have been made to arrange a mechanism by which Mr Joyce’s evidence could be taken in the UAE or by video link to Australia. The Court enlisted the assistance of the Department of Foreign Affairs and Trade (“DFAT”) in investigating ways in which the Court might take Mr Joyce’s evidence. One proposal was that Logan J take evidence in Dubai. Another was that Mr Joyce’s evidence be taken by video-link from Dubai. Consideration was given to utilizing the provisions of the Foreign Evidence Act 1994 (Cth) (the “Foreign Evidence Act”), together with O 24 R 1 of the Rules of Court in force prior to 1 August this year. The relevant provisions are now found in Div 29.2 of the current Rules of Court. Use of s 47A of the Federal Court of Australia Act 1976 (Cth) (the “FCA”) was also considered.

4                     It seems that DFAT first contacted the authorities in the UAE in mid-2010. This led to an email to the Court dated 7 September 2010 in which DFAT advised:

We have received information from Post (Australian Embassy) in Abu Dhabi about the taking of evidence in Dubai.

It appears that civil matters will be treated in the same manner as criminal matters and that any request for the taking of evidence will need to be made through the diplomatic channel.

This process can take a substantial amount of time but is the only avenue available at this time.

Please see the following information received from Post regarding this matter after a meeting with the Acting General Attorney of Dubai and Head of the Technical Bureau at the Dubai Prosecutor’s Office:

UAE authorities will not permit an Australian Federal Court Judge to travel to Dubai for the purpose of taking evidence from two Australian witnesses presently before the Dubai civil and criminal courts. Pending the ratification of the bilateral Extradition and Mutual Legal Assistance treaties, all requests for mutual legal assistance, including requests for video conferencing, must be submitted through the UAE Ministry of Foreign Affairs. Each request will be considered on a case by case basis.

Any mutual legal assistance that the UAE provides must be consistent with the UAE Federal Law on International Judicial Cooperation in Criminal Matters, which was enacted in 2006, and without prejudice to any international Extradition or mutual legal assistance agreements to which the UAE was a party.

All requests would be considered on “the condition of reciprocity”.

The (UAE) courts are not equipped with these (video conferencing) facilities but … video conferencing had been used on one occasion before the enactment of the Federal Law. Australia could submit a request for video conferencing, but the details of this were not elaborated upon (for example regarding costs).

The Acting General Attorney asked whether the taking of evidence could wait until after the proceedings against the Australians and depending on the outcome of the proceedings. He suggested that we provide him with the names of the Australians so that the Dubai Prosecutor’s Office could assess the likely length of the proceedings.

Based upon this information, it is necessary for the Federal Court to make a formal request for assistance through the diplomatic channel for evidence to be taken from these witnesses. Further enquiries about the likely length of proceedings can be obtained if the names of the witnesses are provided to Dubai authorities which may assist the Federal Court in reaching a decision in regards of the taking of evidence for Australian proceedings.

Please do not hesitate to contact me if you have any questions regarding this matter.

5                     The reference to a possible video link is of some importance for present purposes. Although it is not clear, the reference seems to be to the possible supply of facilities rather than to any request for consent to a witness giving evidence via such a link to the Court in Australia.

6                     On 12 October 2010 DFAT provided to the Court a proposed draft third party note to be sent to the UAE authorities, seeking comments as to its appropriateness. The draft, which appears to have been subsequently forwarded to the UAE, reads as follows:

The Embassy of Australia presents its compliments to the Ministry of Foreign Affairs of the [UAE] and has the honour to refer to a private, civil legal proceeding in the Federal Court of Australia, in the matter of Sunland Waterfront (BVI) Ltd and Anor v Prudentia Investments Pty Ltd and Others (QUD 195 of 2009).

The Federal Court of Australia, … seeks approval of the [UAE] government for the Federal Court of Australia to take evidence in this proceeding via video link from two Australian nationals Matthew Joyce and Marcus Lee (“the witnesses”) who are resident in Dubai. The Embassy understands that the witnesses are willing to give evidence voluntarily and the Federal Court is not seeking to compel their attendance. The Embassy understands that Mr Joyce and Mr Lee are the subject of current and ongoing criminal proceedings in Dubai, however the proceedings before the Federal Court is a civil proceeding and there are no criminal proceedings in Australia which traverse the same subject matter as the claims before the Federal Court.

The Embassy has the further honour to advise, that the Federal Court is not requesting the judicial authorities in the [UAE] to take evidence on its behalf, nor for the judicial authorities of the [UAE] to perform any other judicial act. The Federal Court is not requesting that the taking of evidence occurs in the premises of a foreign court. Instead, it is proposed that the taking of evidence be arranged privately by legal representatives of the parties to the proceedings (for example, in a private commercial venue in Dubai). The cost of the video link will be paid by the parties to the proceedings, subject to any orders of the Federal Court. It is the intention of the Federal Court that the [UAE] will not be put to any inconvenience or expense by the taking of this evidence. The matter is listed for a directions hearing on 16 December 2010.

The Embassy would greatly appreciate advice from the relevant [UAE] Authorities at their earliest convenience that there is no objection to the Federal Court of Australia taking evidence in the manner proposed in this matter.

The Embassy of Australia avails itself of this opportunity to renew to the Ministry of Foreign Affairs of the [UAE] the assurances of its highest consideration.

7                     On 10 November 2010 the Court received an email from DFAT which said:

The Australian Embassy in Abu Dhabi transmitted the diplomatic note/third person note on 21 October 2010 to Emirati officials regarding the taking of evidence via video link in the matter of Sunland Waterfront (BVI) Ltd and Anor Prudentia Investments Pty Ltd and Ors (QUD) 195 of 2009.

On 2 November, the MFA (Mohammed Al Saygh, Legal Issues Section, Consular Affairs Department) contacted the Embassy to advise that based on Al Saygh’s experience, it was likely that the Ministry of Justice would refuse the request. He said the UAE generally does not allow foreign authorities to conduct legal procedures within the UAE, even if by video link. He suggested that the court consider formally requesting judicial assistance from the UAE MFA, on the condition of reciprocity should the UAE require judicial assistance from Australia. The following documents would need to be attached to the formal request:

·         Relevant court documents pertaining to the case;

·         A letter from an Australian judge seeking assistance;

·         The questions that the Australian judge would like to put to the witnesses;

·         The names and addresses of the witnesses; and

·         Translations of all documents into Arabic.

If the request for judicial assistance is accepted, the UAE judge would then adduce the evidence on behalf of the Australian judge.

The Embassy has advised that they have not yet received written notice from the UAE MFA that the Ministry of Justice has refused the request. However, the court may wish to reconsider their approach to adducing evidence in the Sunlands case in light of Al Saygh’s advice. The Embassy will follow up and advise DFAT once written notification of a decision is received.

8                     Although Mr Joyce wishes to give evidence in the Australian proceedings, Mr Lee does not wish so to do. We proceed upon the basis that the question of the latter’s evidence is not presently relevant.

9                     It seems that the solicitors for the Sunland companies decided to make their own inquiries, the results of which appear in a letter dated 9 December 2010 to the Court as follows:

We write to advise the Court and the other parties that our clients have contacted the UAE authorities in relation to the taking of Messrs Joyce and Lee’s evidence.

We advise as follows:

·         On 1 December 2010 our clients’ Legal Counsel, Georgia Carter, along with our client’s lawyer in Dubai, Isa Bin Haider, met with Abdul Rahman Ahmed Al-Shamlan.

·         Mr Al-Shamlan is the Director of the Foreign Office in Dubai which is part of the UAE’s Ministry of Foreign Affairs (MFA). … .

·         The meeting was arranged by Mr Bin Haider on behalf of our clients as a result of the Court’s correspondence of 11 and 17 November 2010 and was held at Mr Al-Shamlan’s office at the MFA in Dubai. The meeting was mostly conducted in English.

·         Ms Carter has informed us that she informed Mr Al-Shamlan that:

·         The Applicants had commenced proceedings against Mr Joyce (and others) in the Federal Court of Australia. She said that one of the issues that had arisen was that Messrs Joyce and Lee were currently on bail in Dubai and could not leave. This had resulted in some difficulties in obtaining their evidence.

·         One of the options for taking Messrs Lee and Joyce’s evidence is by video link. Alternatively, the Federal Court Judge could travel to Dubai along with his Associate and the lawyers for the parties and take the evidence in Dubai.

·         Ms Carter also showed Mr Al-Shamlan a copy of the email from Sally Leach to Ms Baldwin of 10 November 2010 which recorded comments made by Mohamed Al Saygh of the Legal Issues Section, Consular Affairs Department of the MFA (in Abu Dhabi).

·         Ms Carter has informed us that Mr Al-Shamlan said that:

·         He believed that Mr Al Saygh may not have properly understood the request made by the Australian Consulate. He also said that Mr Al Saygh was unlikely to be the ultimate decision maker in relation to the consulate’s request.

·         He was of the view that the MFA would raise no objection to an Australian Federal Court Judge travelling to Dubai with his associate (and the parties’ lawyers) in order to take the evidence of Messrs Joyce and Lee together with cross examination. He was of the view that the MFA would be prepared to provide a “no objection letter” in relation to this.

·         However, the MFA would not provide a Court room facility in Dubai.

·         The Australian consulate should send him a letter outlining the request directly, and he was of the view that he could arrange for the no-objection letter to be issued.

…

10                 On Wednesday 15 December 2010 DFAT sent an email to the Court as follows:

Our Embassy in Abu Dhabi contacted Abdul Rahman Ahmed Al Shamlan, Director of Foreign Office, Ministry of Foreign Affairs in Dubai on 14 December to determine whether the Dubai authorities would allow an Australian Federal Court judge to travel to Dubai to take evidence for use in the Sunland case.

Al Shamlan advised the Embassy that he did not see any problem in allowing a judge to take evidence from Messrs Joyce and Lee in Dubai, as his understanding was that the witnesses would be providing the evidence voluntarily and there is no need for the Dubai authorities to be involved in its collection.

Following conversation with Al Shamlan, the Embassy arranged for the Australian Consulate General in Dubai to send a note directly to Al Shamlan requesting a letter of no objection and confirmed by telephone that he had received it. Al Shamlan’s personal assistant confirmed that she had received the note and that she would ask Al Shamlan to action it straight away. Post noted in both correspondence and conversations with Al Shamlan and his office that the matter is urgent and that a directions hearing is scheduled for 16 December.

As of COB 14 December (UAE time), neither the Embassy nor the Consulate General has received a reply to its notes. They will continue to follow up on 15 December. …

11                 It seems that on 15 December, the Consulate General again attempted to contact Mr Al-Shamlan. On 17 December, the Court was advised that the Consulate General had received fax confirmation:

… that there is no objection to Justice Logan travelling to Dubai to take evidence in the Sunland case. A copy of the faxed letter of no objection (in Arabic) received from the [UAE’s] Ministry of Foreign Affairs – Dubai office, and an English translation of the letter prepared by the post, are attached.

12                 The “no objection” letter is as follows:

The Ministry of Foreign Affairs of [UAE] – Dubai Office presents is compliments to the Australian General Consulate in Dubai.

Reference to your note No: ***/2010 dated 14/12/2010 regarding hearing the testimony of the two Australian citizens\Mathew [sic] James (Joyce) and Marcus Ramon Lee

We advise that there is no objection towards the coming of Mr Justice Logan – Australian Federal Court Judge – to hear the witnesses’ testimony in the case.

The Ministry of Foreign Affairs of [UAE] – Dubai Office avails itself of this opportunity to renew to Esteemed Consulate the assurances of its highest consideration.

To the Australian General Consulate in Dubai.

13                 The Court then commenced to make the necessary arrangements for Logan J to travel to the UAE. The Court asked the parties to ascertain whether local observation of Ramadan would pose difficulties. They made such inquiries and reported that it would not do so. On 4 February 2011 the Court asked DFAT to request that the UAE’s consent be extended to include:

… the taking of evidence on commission from the following:

Mr Raza Mithani, from Simmons & Simmons Lawyers in Dubai;

Mr Duane Keighran, from Simmons & Simmons Lawyers in Dubai; and

Mr Ali Al Aidarous, Managing Attorney of Ali Al Aidarous International Legal Practice.

14                 In a letter dated 30 March 2011 the Court asked that the UAE’s consent also be obtained to the taking of evidence from Ms Julianne Clyde-Smith, a solicitor who was living and working in Dubai. She had planned to give evidence in Australia, but had fallen pregnant and was due to give birth on approximately 9 September 2011. She was thus unable to travel to Australia for the hearing. The Court indicated that it was seeking permission for her evidence to be taken in either of two ways:

·         On commission by Justice Logan in Dubai when his Honour is taking evidence on commission from the other witnesses; and/or

·         By video link between Australia and Dubai.

15                 DFAT subsequently sought information as to the nationality of the four additional witnesses. On 14 June the Court was advised by telephone that the authorities in the UAE had declined to grant permission to take evidence on commission from the additional witnesses. Further, DFAT advised that the UAE authorities had revoked the earlier permission concerning Mr Joyce and Mr Lee. The Court subsequently received a letter from DFAT dated 14 June 2011. It confirmed the telephone advice and continued as follows:

As we have previously advised, our Embassy in Abu Dhabi received the enclosed TPN from the UAE authorities. This note was in response to a note from our Embassy seeking clarification of the status of permission previously given for evidence to be taken, in light of subsequent conflicting advice. Unfortunately, the response to our request for clarification remains unclear. In order to seek clarification our Embassy in Abu Dhabi has made attempts to meet with the MFA in Dubai. Unfortunately attempts have been unsuccessful.

Recognizing the need of the Court and parties for advice on the request and the short time frame for any possible travel, on advice from our embassy in Abu Dhabi, it is our view that:

1) The permission previously granted to take evidence from the original two witnesses has been revoked;

2) The request for permission to take evidence from the additional four witnesses has been rejected;

3) The request to utilize premises in the UAE for the purpose of taking evidence has been rejected;

4) It is unlikely we will receive further clarification or justification for this decision.

16                 Enclosed with DFAT’s letter of 14 June was the note from the UAE Ministry of Foreign Affairs. The note was in Arabic. One translation is as follows:

The office of the Ministry of Foreign Affairs in Dubai presents its compliments. With reference to your note dated on 5/5/2011 ref: 28/00 on the subject of listening to the testimony of two Australian citizens we would like to inform you that the reply to your request is no responding and that it conflicts with the due process of law and signed agreements between the two countries, which regulate the quality of procedures and shall be considered as a final answer.

17                 An alternative translation is:

The Ministry of Foreign Affairs in the [UAE] – Dubai office sends its best regards to the Australian General Consulate in Dubai.

With regards to your letter number 28/11 dated 5/5/2011 regarding the listening to the testimony of the two Australian citizens, we would like to inform you that your request was declined, because it conflicts with the set legal procedures and the agreements signed to regulate this type of procedures between both countries. This response is final.

The Ministry of Foreign Affairs in the [UAE] – Dubai office would like to seize this opportunity to express to the esteemed consulate its sincere respect and appreciation.

18                 The Court subsequently gained access to a note dated 5 May 2011 from the Australian Consulate General in Dubai to the UAE Ministry of Foreign Affairs. It reads as follows:

The Australian Consulate General in Dubai presents its compliments to the Dubai Ministry of Foreign Affairs and has the honour to refer to the Ministry’s note 009715 dated 16 December 2010 granting the approval of the Dubai authorities to the Federal Court of Australia to take voluntary evidence from two Australian residents of Dubai (Mr Matthew Joyce and Mr Marcus Lee) for use in civil proceedings before the Federal Court of Australia.

The Australian Consulate General has the honour to refer to the Ministry’s note KHD 1/H/28 dated 16 February 2011 which refused the Australian Consulate General’s request to use court facilities at the Dubai International Financial Centre for taking evidence from Mr Matthew Joyce and Mr Marcus Lee for use in the Australian civil proceedings and which refused the Australian Consulate General’s request for permission to take voluntary evidence from additional witnesses (Mr Raza Mithani, Mr Duane Keighran Mr Ali Al Aidarous). It is not clear from the Ministry’s note whether permission is refused for all the witnesses or for some of them.

Accordingly, the Australian Consulate General would like to clarify whether the Dubai authorities would permit the taking of evidence from the witnesses below who are resident in Dubai. The Australian Consulate General has the honour to emphasize that the Federal Court is not seeking to compel the attendance of the witnesses. The evidence would be taken from the witnesses voluntarily and no assistance is sought from Dubai authorities other than permission to take the voluntary evidence. The final list is:

·         Mr Matthew Joyce, Australian citizen;

·         Mr Marcus Lee, Australian citizen;

·         Mr Raza Mithani, lawyer from Simmons & Simmons Lawyers in Dubai, British citizen;

·         Mr Duane Keighran, lawyer from Simmons & Simmons Lawyers in Dubai, Australian citizen;

·         Mr Ali Al Aidarous, Managing Attorney of Ali Al Aidarous International Legal Practice, UAE citizen; and

·         Ms Julianne Clyde-Smith (nee Stringer), lawyer, Australian citizen.

If permission is granted the Australian Consulate General has further the honour to request permission to use the court facilities at the Dubai International Financial Centre for the taking of the evidence.

The Australian Consulate General understands the two possible witnesses, Matthew Joyce and Marcus Lee, are the subject of current and ongoing criminal proceedings in Dubai, however the proceedings before the Federal Court are civil proceedings and there are no criminal proceedings in Australia which traverse the same subject matter as the claims before the Federal Court. The Australian Consulate General in Dubai avails itself of this opportunity to renew to the Dubai Ministry of Foreign Affairs the assurances of its highest consideration.

19                 The Court has not had access to the Ministry’s note dated 16 February 2011.

OTHER LEGAL ADVICE

20                 Mr Joyce’s legal advisers sought independent advice from legal practitioners in Dubai concerning the matter. The Dubai lawyers understood that the Court proposed that evidence from a person in Dubai be taken by a Judge in Dubai or by “live audio visuallink to the Court sitting in Australia”. The lawyers observed that the UAE law was based on civil law rather than common law, and that it was heavily influenced by the Egyptian legal system which had its sources in French and Roman law. They advised that in most civil law systems the proof of civil and commercial claims was by written evidence only, and that oral testimony was not a standard practice in civil law countries such as Dubai.

21                 They also advised that there was “no specific law in Dubai dealing with the taking of evidence in Dubai for the use in a foreign proceeding”. However, after summarizing certain legislative provisions, they concluded:

The combination of these two articles and the lack of any legislation in the UAE dealing with the hearing of witness for use in foreign proceedings lead us to consider that as long as Australian law would allow the taking of evidence of the witnesses in Dubai by audiovisual link or by relocating the Australian Tribunal in Dubai then it should be permissible to do so.

22                 They also observed that:

Should Australian Law require the examination of the witnesses in Dubai to occur before an official judicial authority in Dubai, then the only available mechanisms would be the issue of a Letter Rogatory or the issuing of legal proceedings in Dubai … .

A “Letter Rogatory” appears to be similar to a letter of request.

23                 In a subsequent advice the Dubai lawyers said:

As previously advised, we could not identify any provision prohibiting the hearing of the witnesses in Dubai for use in foreign proceeding. However you will appreciate that we cannot confirm nor give you any guarantee that the Dubai government would not object or intervene in the Australian Court taking evidence from the witnesses in Dubai for the use in the Australian Proceeding.

24                 On 29 June 2011 the lawyers confirmed their earlier advice.

THE NOTICE OF MOTIONs

25                 As a result of these unfortunate circumstances the first, second and third respondents gave notice of motion seeking orders that:

1. The evidence of Matthew James Joyce, Julianne Clyde-Smith, Ali Aidarous, Diana Hamade and Raza Mithani in this proceeding be given before an examiner appointed pursuant to O 24 rule 1 of the Federal Court Rules.

2. The Honourable Justice Logan be appointed as examiner for the purpose of the examination referred to in paragraph 1 above.

3. Pursuant to s 47A(1) of the Federal Court of Australia 1976 (Cth) the examination referred to paragraph 1 take place by video link from Dubai, [UAE].

4. In the alternative to paragraphs 1 to 3 above, pursuant to s 47A(1) of the Federal Court of Australia Act 1976 (Cth) the evidence of Matthew James Joyce, Julianne Clyde-Smith, Ali Al Aidarous, Diana Hamade and Raza Mithani take place by video link from Dubai, [UAE].

5. Costs reserved.

6. Liberty to apply on 3 days’ notice.

7. Such further orders as the Court sees fit.

26                 The fourth respondent also gave notice of motion seeking the following orders:

1. In the alternative to paragraph 2 of the Orders made by the Hon Justice Logan RFD on 3 February 2011 and pursuant to s 7(1)(a) of the Foreign Evidence Act 1994 (Cth) and s 47A(1) of the Federal Court of Australia Act 1976 (Cth), the testimony of Matthew James Joyce at the trial be given by way of examination before the Honourable Justice Logan RFD by video link from Dubai, [UAE].

2. The testimony given pursuant to Order 1 be on oath or affirmation.

3. In the alternative to Order 2, pursuant to s 47A(2) of the Federal Court of Australia Act 1976 (Cth), the testimony given pursuant to Order 1 be other than on oath or affirmation.

4. The examination pursuant to Order 1 is to be conducted subsequent to the Court’s receipt at trial of the testimony of witnesses called by the applicants and witnesses called by the first or third respondents, and so far as possible in the same manner as the examination of the witnesses called by the applicants and the first and third respondents.

5. The costs incurred by this Court for, and incidental to, the examination pursuant to Order 1 are to be paid by the applicants, the first to third respondents and the fourth respondent in equal one third shares. Such costs are to be costs in the proceeding.

6. Costs otherwise reserved.

7. Liberty to apply on 3 days’ notice.

8. Such further or other order as the Court sees fit.

27                 The orders in para 2 of the orders made by Logan J on 3 February 2011 concerned the arrangements for taking evidence in Dubai.

OUTCOMES AND REASONS

28                 The motions came on for hearing before Logan J. His Honour dismissed the motions concerning the taking of evidence by video link, vacated the orders concerning the receipt of evidence in Dubai, adjourned the trial (which was to have commenced on 1 August 2011) and ordered that further proceedings in the matter be stayed. He gave liberty to apply and reserved costs. In his reasons his Honour set out the history of the matter in some detail and, at [17] observed:

This is a case where, as has been plain in submissions made on earlier occasions, questions of credit, and considerable questions of credit at that, will arise for resolution. It would not, at least as I am presently advised, be procedurally fair in the circumstances of this case, where such issues arise, to hear evidence from some whose credibility is at issue and then adjourn the trial for an indeterminate period pending the reception of evidence from others whose credibility is at issue.

29                 His Honour noted that Mr Joyce had consistently sought an early hearing of the case and continued so to do. Logan J also observed that there had been some doubt as to whether the Court’s jurisdiction had been properly invoked. Although the reasons for such doubt are unclear, they may have involved the fact that the Australian proceedings concern land in Dubai. In any event, his Honour understood that the issue was no longer a live one. Logan J noted that the judicial power of the Commonwealth must be exercised in a way which is procedurally fair. His Honour considered that where issues of credibility were concerned, it was not desirable that a trial be adjourned part-heard, and that Mr Joyce would have to be cross-examined on his affidavit. He then referred to various authorities concerning the exercise of judicial power, limitations upon a state’s interference in the affairs of another state and notions of comity between states. Logan J considered that in connection with those matters, the views of the executive government, as reflected in the correspondence with DFAT, should be persuasive, but not determinative of the issues before him. His Honour observed that the Court should form its own views as to the import of particular communications, whilst conceding that it did not have the benefit of the Australian diplomatic service network and the experience gained in dealing with foreign governments. He acknowledged that it was for the executive government to conduct foreign relations, and that it would be “a considerable thing for a judge to form a different view as to the import of communications with a foreign government”.

30                 His Honour then observed that however one considered the matter, the UAE government had not consented to evidence being taken by video link. He acknowledged that it might be argued that there was no refusal of such permission but doubted the correctness of such an argument. In any event the pertinent matter was that there was no permission. Such absence of permission was important because of the views expressed in the cases that the reception of evidence by video link occurred “in the judicial proceedings”. His Honour referred to various authorities to that effect, in particular the decision of Thomas J in Yamouchi v Kishimoto (2002) 12 NTLR 32 where her Honour said:

I accept the submission made by Mr Walsh QC that without appropriate authorization it would be a breach of Japanese sovereignty for this Court to order that such evidence be given by way of video link, because the room where the person is giving evidence on video is deemed to be part of the Northern Territory Supreme Court.

31                 His Honour also referred to observations by Owen J in Bell Group Ltd (In Liq) v Westpac Banking Corporation (2004) 208 ALR 491 that:

The problems would, of course, be exacerbated if the taking of evidence by video link were found to be a breach of the sovereignty of the foreign power. It would always be advisable to seek advice from the authorities in the foreign place whether they have any objection to the taking of evidence by this method in a particular case. This advice would usually be sought through the Department of Foreign Affairs and Trade. But advice given by executive authorities in a foreign place might not bind the courts of that jurisdiction. It would no doubt be persuasive but once again falls short of the degree of certainty that I would require.

32                 Logan J was not disposed to differ from DFAT’s view that the taking of evidence on commission in Dubai had been refused by the UAE government. His Honour also considered that there was no evidence, “that the UAE government would permit the taking of evidence by video link”. He was concerned that to embark upon that course:

… without that permission, … would be seen to be, or could be seen to be, a subversion of a refusal by a sovereign government to permit the taking of evidence on commission on its soil. In my opinion, the taking of evidence by video link in the course of a proceeding in this Court forms part of a proceeding in the exercise of Commonwealth judicial power.

33                 His Honour then noted that the parties had submitted that any video link would involve persons who had consented to give evidence in that way, and that in this sense there was no “assertion of Australian judicial power”. However his Honour rejected that submission, saying:

A reason for so doing [that is rejecting the submission] was highlighted in the submissions made on behalf of the Sunland parties. If the evidence is taken by video-link and in the course of that evidence an objection is taken, it would be necessary for me to rule upon that. If the ruling were adverse to the objector, in the ordinary course in any judicial proceeding I would then require that witness to answer that question. That requirement would necessarily be communicated to a person in Dubai. In the ordinary course of giving evidence in this Court, that requirement would bind that person and subject that person to the pains and penalties of contempt if an answer were not given.

34                 In our view, a direction that a witness answer a question, addressed to a person in Dubai, is no different from any other order made by this, or any other Australian court against a party who has submitted to its jurisdiction and is, at the time of the order, in a foreign country, at least to the extent that compliance with the order involves some action in the foreign country.

35                 His Honour then continued at [42]:

As I see it, that the person has attended voluntarily as opposed to under compulsion is relevantly a distinction without a difference. The voluntary attendance in Dubai for the purpose of giving evidence by video-link in a proceeding in this Court is not different to a voluntary attendance in person, absent a subpoena, to give evidence before the Court. Once the person presents him or herself to the Court to give evidence that person is then obliged to answer such questions as are permitted by the Court to be asked by counsel. That being so, it seems to me that, in the absence of permission from the authorities in Dubai to the taking of evidence by video-link, I ought not countenance that, especially given the express refusal, seemingly, by that government for me to go to Dubai to take evidence on commission from those persons. That I would regard as an impertinence in terms of the obligations described in the passage quoted from Oppenheim that usually attend relations between nation states.

Of course, the taking of evidence on commission is not in itself a judicial act. The taking of evidence on commission is a procedure whereby evidence is taken from a witness which then becomes, after it has been taken, the subject of tender in a judicial proceeding … .

36                 The relevant passage from Oppenheim (Jennings R and Watts A, Oppenheim’s International Law (9th ed, Longman, 1992)) at 385 and 386 is as follows:

It is not feasible to enumerate all such actions as might constitute a breach of a state’s duty not to violate another state’s independence or territorial or personal authority. But it is useful to give illustrative examples. Thus, in the absence of treaty provisions to the contrary, a state is not allowed to intervene in the management of the internal or international affairs of other states, or to prevent them from doing or to compel them to do certain acts in their domestic relations or international intercourse. A state is not allowed to send its troops, its warships or its police forces into or through foreign territory, or its aircraft over it, or to carry out official investigations on foreign territory or let its agents conduct clandestine operations there, or to exercise an act of administration or jurisdiction on foreign territory, without permission.

37                 We presently have difficulty in understanding why a person who has submitted to the jurisdiction of the Court as a party, should not be able to agree to a procedure to facilitate resolution of the relevant dispute, even if steps are to be taken in a foreign country, provided that they are not forbidden by the law of that country.

38                 His Honour then referred to a submission that he could appoint himself to be a commissioner or examiner to take evidence by video link in Australia. His Honour acknowledged the ingenuity of the submission but concluded that it would not produce any different result, and that it would be an impertinence, and contrary to the principles identified in Oppenheim for him to do so. He considered that it would also be contrary to notions of comity.

39                 Logan J concluded that he should not order the taking of evidence by video link. However he did not “forever” foreclose such a course. His Honour apparently considered that there would be little point in the Court seeking further assistance from DFAT. He was, however, happy to allow the parties to seek other solutions to the problem. His Honour noted that the Sunland companies had not pressed for the taking of evidence by video link, although they proposed that the possibility be preserved as an option for the future. His Honour approved of that approach.

40                 Logan J then referred to the advice received from the lawyers, to which we have already referred. That evidence establishes that there is no specific legislation in Dubai dealing with the taking of evidence for use in foreign proceedings, and that there is no law protecting witnesses from being sued with respect to their statements. His Honour referred to their statement that:

As previously advised, we could not identify any provision prohibiting the hearing of the witnesses in Dubai for use in foreign proceeding. However, you will appreciate that we cannot confirm nor give you any guarantee that the Dubai government would not object or intervene in the Australian Court taking evidence from the witnesses in Dubai for the use in the Australian proceeding.

41                 His Honour considered that it would be desirable that, before the Court ordered that evidence be taken by video link there be evidence that the UAE government had no objection to the taking of evidence by video link, “at the very least”. His Honour then referred to s 47A of the FCA. That section authorizes the Court to take evidence by video link and, in an appropriate case, to dispense with an oath or affirmation. His Honour said that the question was not as to the Court’s power to order the reception of evidence by video link, but rather as to the exercise of the discretion to do so. His Honour considered that the section did not detract from the fact that the taking of evidence was part of judicial proceedings, and that to require that evidence be given in judicial proceedings is to assert judicial power. His Honour concluded that as it was not possible to take Mr Joyce’s evidence, the proceedings should be temporarily stayed.

LEAVE TO APPEAL

42                 By notice of motion No QUD 187 of 2011, filed on 26 July 2011, Mr Joyce seeks:

·                     leave to appeal from the whole of the judgment of Logan J dismissing the application for an order that evidence be taken by video link;

·                     leave to file and serve a notice of appeal;

·                     expedition of the hearing of the appeal;

·                     an order that the application for leave to appeal to be heard with, or immediately before the appeal;

·                     further or consequential orders; and

·                     costs.

43                 On the same day, Prudentia and Mr Reed filed and served notice of motion No QUD 189 of 2011 seeking:

·                     leave to appeal from the orders of Logan J;

·                     leave to file and serve the proposed notice of appeal;

·                     an order that the application for leave to appeal be dealt with at an oral hearing;

·                     an order that the hearing of the application for leave to appeal and the appeal be expedited;

·                     an order that the application for leave to appeal be heard with the appeal;

·                     an order that the costs be costs in the proceedings; and

·                     further or other orders.

44                 The draft notices of appeal raise numerous grounds, involving allegedly erroneous findings of fact, alleged errors of law and alleged errors in the exercise of discretion. The somewhat diffuse nature of the draft notices has been clarified and focussed in both written and oral submissions.

45                 Mr Joyce submits that the effect of the orders below is that an Australian court may not take evidence by video link from a witness in a foreign country unless the government of that country has first given its permission. He submits that this proposition is incorrect. He is unable to come to Australia and is prepared to give evidence by way of video link. He submits that Dubai law does not prohibit his taking an oath or affirmation by video link, nor his giving evidence using that medium. He points out that various Australian courts have received evidence by video link from foreign countries. He submits that the receipt of his evidence in Australia by video link from Dubai would not involve any breach of the sovereignty of the UAE. Mr Joyce also submits that questions of comity are not presently relevant in that there is no attempt to adjudicate upon the actions of a foreign sovereign state performed within its territory. Clearly, Mr Joyce does not expect to be able to participate in the trial of the Australian proceedings in the event that he is convicted.

46                 Prudentia and Mr Reed submit that there is no evidence before the Court that the UAE government objects to the taking of evidence by video link, and that the conduct of an examination by video link would not be in breach of Australia’s duty to refrain from violating the independence or territorial or personal authority of the UAE. There would be no impermissible intervention in the affairs of the UAE. The receipt of evidence by means of video link would not involve exercise of an act of administration or adjudication on foreign territory. They also assert that comity is irrelevant for present purposes, and that “impertinence” is not an appropriate basis for declining to exercise judicial power. They also submit that the Court should approach the matter in a way which permits Mr Joyce to be heard in the most effective way which is possible in the existing circumstances.

47                 The Sunland companies defend his Honour’s decision, largely upon the basis that it was “premature” to order that evidence be taken by video link. They submit that Logan J exercised a discretion, and that an appellate court should not intervene merely because it may have taken a different view of the matter. The Sunland companies are, at the moment, engaging in further investigations with a view to resolving the problem, presumably by clarifying the position taken by the UAE government and, perhaps, persuading it to give a clear indication that it does not oppose a video link or the taking of evidence in Dubai. They point to cases in which questions of sovereignty and comity have been raised as relevant to the discretion to order the taking of evidence by video link.

POSSIBLE METHODS OF RECEIVING EVIDENCE

48                 As we understand it, the parties accept that at least for the moment, it is not practicable for a Judge, examiner or commissioner to visit Dubai for the purpose of taking evidence. On that basis the only current option is that evidence be taken by video link. It is appropriate that we commence our consideration of the matter by addressing the power of the Court to do so. We have previously referred to s 47A of the FCA which provides:

(1) The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.

(2) The testimony must be given on oath or affirmation unless:

(a) the person giving the testimony is in a foreign country; and

(b) either:

(i) the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

(ii) the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

(c) the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3) If the testimony is given:

(a) otherwise than on oath or affirmation; and

(b) in proceedings where there is not a jury;

the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.

(4) The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a) on the application of a party to the proceedings; or

(b) on the Court’s or Judge’s own initiative.

(5) This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

49                 The section authorizes the Court to adopt the prescribed procedure without any suggestion that questions of sovereignty or comity should be considered, save for s 47A(2). It makes no reference to the involvement of DFAT.

50                 Section 7 of the Foreign Evidence Act provides:

(1) In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:

(a) for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or

(b) for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or

(c) for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.

(2) In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:

(a) whether the person is willing or able to come to Australia to give evidence in the proceeding;

(b) whether the person will be able to give evidence material to any issue to be tried in the proceeding;

(c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.

51                 This procedure does not seem to be appropriate for present purposes. Sections 7(1)(a) and 7(1)(b) provide for evidence being taken outside of Australia. It seems that in the absence of agreement from the UAE government, the evidence cannot be taken in that country, and Mr Joyce cannot leave it. The parties are not interested in proceeding by way of letter of request.

52                 Order 24 r 1 provided:

(1) The Court may, for the purpose of proceedings in the Court, make orders:

(a) for the examination of any person on oath or affirmation before a Judge or before such other person as the Court may appoint as examiner at any place whether in or out of Australia; or

(b) for the sending or issue of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.

(2) Drafts of the orders must be lodged:

(a) for examination – in accordance with Form 37; and

(b) for appointment of an examiner – in accordance with Form 38; and

(c) for a letter of request – in accordance with Form 39.

53                 Similar provisions appear in Div 29.2 of the Federal Court Rules 2011. These options also seem to be inappropriate.

THE EVIDENCE ACT AND S 47A OF THE FCA

54                 The starting point for a consideration of the present question must be the Evidence Act 1995 (Cth) (the “Evidence Act”). Section 4(1) provides that the Act applies to all proceedings in a federal court. Not surprisingly, the Federal Court is a “federal court”. See the definition of the term “federal court” in Pt 1 of the Dictionary. Section 21 provides that a witness in a proceeding must either take an oath or make an affirmation before giving evidence. Pursuant to s 21(4) this must be done in accordance with the appropriate form in the Schedule or a similar form. Although there are exceptions to the requirement for an oath or affirmation, they are not relevant for present purposes. Section 44 of the FCA authorizes a Judge to require and administer all necessary oaths and affirmations. Thus it seems that the provision in s 47A(2), providing for dispensation with an oath or affirmation is an exception to the general rule. Section 47A(2) should be read as requiring that ss 47A(2)(a) and (c) must be satisfied. As well, either s 47A(2)(b)(i) or s 47A(2)(b)(ii) must be satisfied. In the present case there is simply no evidence to suggest that the law of the UAE in any way prohibits, or makes inconvenient the giving of evidence on oath or affirmation. Accepting that it is not presently practicable to take evidence in the UAE, the preferred approach is to utilize the provisions of s 47A of the FCA, taking the evidence on oath or affirmation by video link.

sovereignty and comity

55                 The notion of territorial sovereignty is frequently described by reference to observations made by Huber J in Netherlands v US (1928) 2 RIAA 829 and 838 (the “Islands of Palmas Case”) as follows:

Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization of States during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.

56                 That passage is adopted with apparent approval in Triggs G, International Law Contemporary Principles and Practices (2nd ed, LexisNexis Butterworths Australia, 2011) at p 272 and Rothwell D, Kaye S, Akhtarkhavari A and Davis R, International Law Cases and Materials with Australian Perspectives (Cambridge University Press, 2011) at p 265. It is in this context that the extract from Oppenheim referred to by Logan J at [29] must be understood. In Oppenheim at p 382 the following passage appears:

Sovereignty has different aspects. In as much as it excludes subjection to any other authority, and in particular the authority of another state, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders. It is internal independence with regard to the liberty of action of a state inside its borders. As comprising the power of a state to exercise supreme authority over all persons and things within its territory, sovereignty involves territorial authority (dominium, territorial sovereignty). As comprising the power of a state to exercise supreme authority over its citizens at home and abroad, it involves personal authority (imperium, political sovereignty).

Independence, and territorial and personal authority, are the three main aspects of the sovereignty of a state.

57                 As to comity, Logan J points out that in CSR Ltd v Cigna Insurance Ltd (1997) 189 CLR 345, at 394-396, the majority of the High Court (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) observed:

Comity, relevantly, was explained by the Supreme Court of the United States in Hilton v Guyot … in the following terms:

“Comity”, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

58                 We draw attention to two aspects of that definition. The first is that it concerns recognition by one nation “within its territory” of the legislative, executive or judicial acts of another nation. The second is that such recognition has “due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws”. The first aspect suggests that comity is primarily concerned with recognition by one state, within its territory, of the sovereign acts of another. The second aspect suggests that domestic law may derogate from a state’s duty to extend comity to another state. We note the observations made by Gummow and Hayne JJ in Neilson v Overseas Projects Corporation of Victoria Ltd (2005) 223 CLR 331 at 363 that:

As has been said …, comity is “either meaningless or misleading”; it is “a matter for sovereigns, not for judges required to decide a case according to the rights of the parties”.

59                 We note also the observation by Perram J in Habib v The Commonwealth (2010) 183 FCR 62 at [27] that:

No doubt comity between the nations is a fine and proper thing but it provides no basis whatsoever for this Court declining to exercise the jurisdiction conferred on it by Parliament.

60                 Section 47A of the FCA confers the power to allow testimony to be given by video link, audio link or “other appropriate means”. It specifically authorizes the exercise of this power where the person giving the testimony is in a foreign country. There are express provisions permitting the Court to dispense with the requirement for an oath or affirmation where the law in force in the foreign country does not permit such a course, or where it would be inconvenient, because of a law of that country for a person to give evidence on oath or affirmation. However the legislation does not require that the foreign state consent to a person within its borders giving evidence by video link to an Australian court. If the Parliament perceived any problem arising out of the concept of sovereignty or that of comity, then it seems to have overridden any obligation which Australia may have had in that regard. In our view, s 47A authorizes this Court to take evidence on oath or affirmation from a person located in any other state, save where the law of that state prohibits or makes inconvenient the giving of evidence on oath or affirmation. In that case, the Court may dispense with the oath or affirmation. We see no justification for imposing upon the exercise of the discretion conferred by s 47A, a requirement that the other state consent to the taking of evidence in that way.

61                 Of course, if the law of a foreign state prohibits a person within its borders from participating in such a process, then problems might arise. That is not the present case. The only evidence is that there is no restriction upon giving evidence, either to a Judge or examiner sitting in the UAE, or by way of video link to another country. It is true that some evidence suggests that the UAE will not agree to the giving of evidence by video link, but it is not clear whether that represents the UAE’s attitude to the provision of facilities and assistance or to the actual giving of evidence. Even if the government of the UAE is, notwithstanding the absence of any legal basis for such opposition, indicating its own unwillingness to agree to evidence being taken by video link, it does not follow that to do so would impinge upon state sovereignty. A person in Australia might be willing to give evidence by video link to a foreign court, notwithstanding the Australian government’s wish that he or she not do so. In the absence of any law prohibiting such action, the Australian government would be powerless to prevent the person from giving the evidence. We see no reason to believe that the position is otherwise in the UAE.

62                 In those circumstances we conclude that in exercising the discretion pursuant to s 47A, the Court is not hampered by any need to consider questions of sovereignty or comity between nations, at least absent any law forbidding such conduct, and subject to the question of whether an oath or affirmation should be required. To the extent that his Honour disposed of the matter upon the basis that questions of sovereignty and comity were relevant, he took into account irrelevant considerations. The exercise of the discretion miscarried. Given the circumstances surrounding Mr Joyce’s capacity to give evidence, the importance of his evidence and the demonstrated miscarriage of the discretion, leave to appeal should be granted. The appeal should be heard instanter and allowed on the ground that the discretion miscarried by virtue of the consideration of an irrelevant matter.

OTHER MATTERS

63                 We should deal with a number of other matters. The first concerns the wide-spread practice of approaching DFAT where a court proposes to take evidence in a foreign country, with a view to obtaining the consent of the relevant government. Nothing which we have said should be taken as derogating from that practice, or from the perception that it is necessary that the permission of the relevant state be obtained. There is a substantial difference between a court, whether in the form of a Judge or an examiner, attending in person in a country in order to take evidence and doing so, on the one hand, and a person giving evidence by video link from such a country, on the other. In the former case, there can be little doubt that the conduct constitutes an act of administration or jurisdiction on foreign territory. To do so without permission is one form of infringement identified in the extract from Oppenheim cited by Logan J at [29]. However the rules relating to sovereignty and comity do not limit the individual rights and freedoms of individual persons. Provided that the law of the relevant nation does not forbid it, an Australian citizen, whilst present in a foreign country, may speak on the telephone to somebody in Australia, be it his or her mother, lawyer or, we suggest, a court sitting to determine a matter in accordance with the law of Australia. The concepts of sovereignty and comity focus upon the relationship between states, not the relationship between an individual citizen and a state, whether it be that of which he or she is a citizen or another.

64                 Where a court proposes to take evidence from a witness in another country, using a video link, it will be for the Judge in question to decide whether or not he or she should involve DFAT in that process. In some cases, there may be reason to believe that there are aspects of foreign law or of the relationship between the Australian and foreign governments which make it desirable that DFAT be involved. However, given the terms of s 47A, such involvement will not generally be necessary. Where, as here, DFAT has been involved, it may be as well to continue to engage it in the process. Once contact has been made between DFAT and a foreign government, there may be room for embarrassment if the former is not kept informed of developments, particularly where, as here, there is some ambiguity as to the position taken by the foreign government. In the present case we think that it would be as well that our reasons and proposed orders be served on DFAT prior to the orders taking effect, in case the Commonwealth should decide to seek to intervene in some way.

65                 Finally, the receipt of evidence by video link from a witness in another country depends upon the witness’s willingness to give such evidence. Obviously, he or she can withdraw from the process at any time. It is unlikely that a party would do so. Where the witness is a party, the Court might well draw adverse inferences from any such withdrawal. At least in practice, the Court will not be able to compel a witness to answer.

MR JOYCE AND OTHER WITNESSES

66                 In the case of Mr Joyce, the urgency of his situation leads us to conclude that we should make an appropriate order concerning the taking of his evidence so that arrangements may be made without unnecessary delay, subject only to notice being given to DFAT as proposed above. However the order should recognize that circumstances may change. The docket Judge should be at liberty to discharge or vary the order. As to the other witnesses, decisions concerning their evidence can safely be left to the docket Judge who will re-consider the matter in the light of these reasons.

ORDERS

67                 We make the following orders:

·                     In connection with notice of motion No QUD 187 of 2011:

1. that pursuant to the notice of motion filed on 26 July 2011, the applicant on that notice of motion (“Mr Joyce”) have leave to appeal from the whole of the judgment of the Federal Court of Australia constituted by the Honourable Justice Logan RFD in action No QUD 195 of 2009, given on 19 July 2011 at Brisbane, wherein his Honour dismissed Mr Joyce’s motion that his evidence at trial be given by way of video link from Dubai in the United Arab Emirates, notice of which motion was filed on 1 July 2011, and stayed the same action until further order;

2. that Mr Joyce have leave to file and serve a notice of appeal substantially in the form of “annexure A” to the notice of motion filed on 26 July 2011;

3. that the appeal be heard instanter and allowed;

4. that of the orders made by the Honourable Justice Logan RFD on 19 July 2011, orders 1, 4, 5, 6 and 7 be set aside;

5. that unless otherwise ordered, Mr Joyce’s evidence in action No QUD 95 of 2009 be given by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), such evidence to be given on oath or affirmation;

6. that unless any party, within 7 days of the publication of these reasons, files a notice of motion seeking some other order as to costs, the costs of and incidental to the notice of motion filed on 1 July 2011, and of the hearing and determination thereof, the costs of this application for leave to appeal and the costs of the appeal be costs in the cause;

7. that in the event that such a notice of motion is filed, the parties, within 7 days, file agreed directions as to the delivery of written submissions concerning costs and comply with same;

8. that this order, in draft form, be sent forthwith by the District Registrar to the Department of Foreign Affairs and Trade;

9. that this order lie in the registry for 7 days after the publication of these reasons; and

10. that the parties have liberty to apply.

·                     In notice of motion No QUD 189 of 2011:

1. that pursuant to the notice of motion filed on 26 July 2011 the applicants on that notice of motion (“Prudentia” and “Mr Reed”) have leave to appeal from the orders of the Honourable Justice Logan RFD made on 19 July 2011 in action No QUD 195 of 2009;

2. that Prudentia and Mr Reed have leave to file and serve notices of appeal substantially in the form of “annexure A” to the notice of motion;

3. that the appeals be heard instanter and allowed;

4. that of the orders made by the Honourable Justice Logan RFD on 19 July 2011, orders 1, 4, 5, 6 and 7 be set aside;

5. that unless otherwise ordered, the evidence of Matthew James Joyce in action No QUD 195 of 2009 be given by video link pursuant to s 47A of the Federal Court of Australia Act 1976 (Cth), such evidence to be upon oath or affirmation;

6. that the matter be otherwise remitted to the primary Judge for determination;

7. that unless any party, within 7 days of the publication of these reasons, files a notice of motion seeking some other order as to costs, the costs of and incidental to the notice of motion filed on 1 July 2011, and of the hearing and determination thereof, the costs of this application for leave to appeal and the costs of the appeal be costs in the cause;

8. that in the event that such a notice of motion is filed, the parties, within 7 days, file agreed directions as to the delivery of written submissions concerning costs and comply with same;

9. that this order, in draft form, be sent forthwith by the District Registrar to the Department of Foreign Affairs and Trade;

10. that this order lie in the registry for 7 days after publication of these reasons; and

11. that the parties have liberty to apply.

Associate:

Dated: 19 August 2011