FEDERAL COURT OF AUSTRALIA

Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 9) [2011] FCA 832

THE COURT ORDERS THAT:

1.    The applications by the respondents for the taking of evidence by video-link of Mr Matthew Joyce, Mr Raza Mithani, Mr Duane Keighran, Mr Ali Al Aidarous and Ms Julianne Clyde-Smith, being those persons named in communications between the Government of the United Arab Emirates and the Department of Foreign Affairs and Trade, as well as any other persons, are dismissed.

2.    The orders of 3 February 2011 in respect of the taking of evidence on commission in Dubai are vacated.

3.    The trial fixed to commence on 1 August 2011 is adjourned to a date to be fixed.

4.    Further proceedings in this matter are stayed until further order.

5.    Liberty to apply is reserved to each party including liberty to apply to restore the matter to the list and to take evidence by video-link from any person.

6.    The costs thrown away by the adjournment are reserved.

7.    The costs of and incidental to the show cause proceeding heard today and to the first to fourth respondents’ notices of motion are reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    The substantive issues in this proceeding have been described in earlier interlocutory judgments. I shall not repeat that description.

2    Suffice it to say, the fourth respondent, Mr Joyce, was scheduled to give evidence before me on commission in Dubai in the United Arab Emirates (UAE) in August with the trial fixed to commence that month being adjourned for that purpose and then resumed after the taking of his evidence. August this year was the earliest available period in which I could entertain a trial, including within that the taking of evidence on commission, of the length estimated by the parties. Even to allocate August for the hearing of the trial required the securing by me of permission from the Chief Justice, which was granted, to stand out of the appeal list for that month.

3    On 14 June 2011, the Department of Foreign Affairs and Trade (DFAT) sent a letter to the District Registrar of the Court. That letter was but the most recent of a series of communications which had occurred between DFAT and the Court, and between DFAT via Australia’s embassy to the UAE and the Consulate-General in Dubai, and the government of the UAE with respect to, in one way or another, the reception of evidence from various persons, either in Dubai or by video-link from Dubai. It is necessary to set out, at some length, a quote from the letter of 14 June 2011. Materially, it provides:

As we have previously advised, our Embassy in Abu Dhabi received the enclosed TPN (Third Party Note) 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 (Ministry for Foreign Affairs) in Dubai. Unfortunately attempts have been unsuccessful.

Recognising 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 utilise 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.

4    The enclosed third party diplomatic note from the UAE Ministry of Foreign Affairs, Dubai Office to the Australian Embassy is, in its original form, in Arabic. In conjunction with its letter of 14 June 2011, DFAT offered an English translation of the note. That is in these terms.

The office of the Ministry of Foreign Affairs in Dubai presents its compliments. With reference to your note dated on 05/05/2011 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 [sic]

5    As may perhaps be apparent to the reader from that offered translation it is not, with all due respect to its author, a particularly felicitous piece of English. That may, of course, be referable to the Arabic, but it may just be a product of a translation which is perhaps overly literal. As it happens, I have before me a further translation prepared on behalf of one of the parties, to which no other party has taken objection upon its tender, and that translation, whilst not an official one, is apparently one prepared by a person familiar with the Arabic language. It is in these terms:

The Ministry of Foreign Affairs in the United Arab Emirates - 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 and the United Arab Emirates - Dubai office would like to seize this opportunity to express to the esteemed consulate its sincere respect and appreciation.

6    An inspection of the Arabic text of the third party note does disclose that there is a word which is in bold type and underlined. Further, that word appears at the same place where, having regard to the translations, one might expect the word “final” to appear. Further, the reference in the private translation to the numbering of the Australian third party note, 28/11 of 5 May 2011, is accurate, whereas that in the officially offered translation is an inaccurate reference, although demonstrably to the same Australian third party note. For these reasons it does seem to me that the private translation is the superior one. It has the advantage of an idiomatic rendering of English. It makes more sense in terms of the way in which the English has been rendered.

7    Accepting all that in relation to the note, what remains and indeed uniquely from the private translation is:

This response is final.

8    To state that the communication of 14 June 2011, which arrived that day by email enclosure, was something of a surprise within the Court, to say nothing of what it must have been to the parties, is something of an understatement. Prior to then, each party had been diligently prosecuting its or his respective cases. That diligence extended to cooperation with the District Registrar and her staff in relation to the making of arrangements with respect to my taking evidence on commission in Dubai next month in accordance with an order earlier made in the proceeding.

9    Associated with those particular endeavours, an application had also been made by me to the Australian Passport Office within DFAT for the issue to me by our government, for the purpose of taking evidence on commission in Dubai, of a diplomatic passport. The registrar has at my request notified the parties of the receipt of advice from DFAT that that particular application is, in light of the communication enclosed with DFAT’s letter of 14 June 2011, “on hold”.

10    Against this background, when the matter came before me for its next directions hearing on 17 June 2011 I called on the parties to show cause why the trial ought not to be adjourned and the proceedings stayed until further order. There was no agreement on the part of any of the parties to that course occurring then and there. Rather, the request was made for an opportunity to make submissions on that subject. Further, since then, the parties have made applications for the reception of evidence from particular witnesses by video-link from Dubai as an alternative.

11    Not all of the parties, and in particular the applicant, have pressed that application for determination today. The respondents, though, have.

12    Each of the parties has lodged by direction and in advance of today's hearing helpful written submissions, supplemented by oral submissions. In particular, the respondents urge that the trial not be adjourned. The applicants are more sanguine in that regard. The applicants also regard it as presently premature to make a determination as to whether or not to receive evidence by video-link.

13    Before turning to the applications in more detail, it is necessary to recite some further history with respect to the course of events that led, surprisingly as it doubtless is, to the communication of 14 June 2011. The fourth respondent has in his submissions helpfully offered a summary of the communications that have occurred with the foreign ministry of the UAE and of related anterior communications and Court orders. No other party has gainsaid this summary. The following draws on that summary.

14    On 6 April 2010, Mr Joyce sought orders for his testimony and that of a Mr Lee to be given in Dubai or alternatively via video-link to Australia from Dubai. Since then, and despite requests made of him, Mr Lee has not confirmed his availability voluntarily to give evidence by either of these modes. Mr Joyce's submission on 6 April was that the interests of justice were best served by receiving his evidence and that of Mr Lee in Dubai. The alternative of a video-link was put forward as less desirable but nonetheless pressed because of a desire on Mr Joyce's part to have the case heard and determined as soon as possible. There can be no doubting that Mr Joyce has consistently sought a hearing as soon as possible as, for that matter, have each of the other parties.

15    Between 30 April 2010 and 7 September 2010, correspondence concerning the examination of Messrs Joyce and Lee was exchanged between the Court, the Commonwealth Attorney-General's Department and DFAT. It is not necessary to detail all of that correspondence. On 7 September 2010, I made orders vacating trial dates which had previously been fixed in respect of a trial in October 2010. That was done on the basis of information then available from DFAT in respect of the taking of evidence from Messrs Joyce and Lee. The DFAT had sent to the Commonwealth Attorney-General's Department a communication in which it was noted that an official from the Australian embassy had met with the Acting Attorney-General of Dubai and the head of the Dubai Prosecutor’s Office. The email also recited that:

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 …

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. [sic]

16    It was having regard to this particular communication that I determined that the trial ought to be adjourned. Then, as now, no party has promoted the notion, much less made any application, that the trial ought to proceed part heard with such witnesses as are available in Australia being heard and then adjourned pending the reception, if ever, of evidence by video-link, or otherwise, either in or from Dubai. That particular manner of conducting a trial is not one which would in any event, save in circumstances I cannot for the present imagine, commend itself to me.

17    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.

18    Such considerations have doubtless informed why it is that no application for a part heard trial has been made by any party.

19    After the orders of 7 September 2010, further communication occurred via DFAT with the authorities in the UAE. On 11 November 2010, DFAT notified the court that:

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 & Anor v Prudentia Investments Pty Ltd (QUD) 195 of 2009. On 2 November, the Ministry of Foreign Affairs (Mohammed Al Saygh, Legal Issues Section, Consul 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 that the UAE generally does not allow foreign authorities to conduct legal procedures within the UAE, even if by video-link.

20    Thereafter, as they were entitled to do, the Sunland parties' representatives met with Mr Al-Shamlan of the UAE’s Foreign Affairs Office in Dubai. He was then, apparently, the director of that office. The Sunland parties’ solicitors advised that Mr Al-Shamlan had said that the UAE Ministry of Foreign Affairs would raise no objection to an Australian Federal Court judge travelling to Dubai to take evidence from Messrs Joyce and Lee and that the Ministry of Foreign Affairs would be willing to provide a “no objection” letter to that effect. The Sunland parties also relayed the information that Mr Al-Shamlan:

Believed that Mr Al Saygh may not have properly understood the request made by the Australian consulate.

21    That particular initiative bore fruit in the sense that on 15 December 2010 DFAT advised the Court and the solicitors for the parties by email that:

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 the 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.

22    Further to this, on 17 December 2010 the Court received via DFAT a note from the UAE’s Ministry of Foreign Affairs which advised materially that the UAE had:

No objection to the coming of Mr Justice Logan - Australian Federal Court judge - to hear the witnesses' testimony in the case.

23    On the strength of this communication, orders were made in February this year for the case to be heard in August and further, for the testimony of Messrs Joyce and Lee to be taken by way of evidence on commission before me as commissioner in Dubai in the manner and at the time previously referred to.

24    Inspired, perhaps, by this turn of events and recalling that it may be convenient for witnesses not subject to the restrictions as to leaving Dubai (to which Messrs Joyce and Lee were subject), to give evidence there, the parties suggested that other witnesses might also conveniently be examined on commission in Dubai. They were persons who resided there: Mr Mathani, Mr Keighran and Mr Al-Aidarous. Later in time, a further person, Ms Julianne Clyde-Smith, was added to this proposal.

25    These proposals were acted on by way of communications from the Court to the DFAT for further communication to the authorities in the UAE for the extension of the permission previously granted. With respect to Ms Clyde-Smith, the proposal was that her evidence be heard either in person by me as commissioner in Dubai or that, alternatively, her evidence be received by video-link. All of these proposals seem to have been communicated to the authorities in the UAE. It is against the background of that communication that, ultimately, the advice provided under cover of DFAT’s letter of 14 June 2011 has been made.

26    There are a number of givens in this matter which have been highlighted in submissions made on behalf of the respondents. The applicant has regularly invoked the jurisdiction of this Court. Whatever tentative reservations were earlier voiced by, or on behalf of, any respondent in respect of that, they have never manifested themselves in an application that the proceeding be dismissed for want of jurisdiction. The silence in that regard since those tentative early reservations is eloquent. I proceed on the basis that the applicants have regularly invoked the Court’s jurisdiction. That being so, the applicants are entitled to an exercise of the judicial power of the Commonwealth. As a judge of the Court, I am obliged to exercise that judicial power.

27    An exercise of the judicial power of the Commonwealth must be done in a way which is procedurally fair. An aspect of that procedural fairness, to which I have earlier referred, is that it is not desirable in a case where credibility is at issue for the trial to be part heard. Another aspect of that is that if, as the applicants plainly desire, it is desired that Mr Joyce be cross-examined on his affidavits, it would not be procedurally fair to conduct a trial without permitting that.

28    There are some other givens as well. In the course of his judgment in BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at 468 at [178] (BHP Billiton v Schultz), Hayne J made reference to some features of judicial power. His Honour stated:

A court exercising judicial power asserts the power of the polity. As Sir John Salmon said more than eighty years ago, the administration of justice is “the maintenance of right within a political community by means of the physical force of the state”. This element of force has largely "become merely latent" because "it is now, for the most part, sufficient for the state to declare the rights and duties of its subjects, without going beyond declaration to enforcement" may not mean that the relevant question is only whether steps associated with the exercise of judicial power are permitted (or not forbidden) by the law of the place where they are done.

29    Also pertinent are some observations made in Jennings R and Watts A, Oppenheim’s International Law (9th ed, Longman, 1992) at p 385 and p 386 (Oppenheim):

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 some 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.

30    Axiomatically, a judge of this Court is, for Australian constitutional purposes and, I apprehend, for international law purposes, an officer of the Commonwealth. Further, and as judgment of Hayne J in BHP Billiton v Schultz highlights, an exercise of judicial power is an exercise of Australian national power.

31    Yet another given in this case is that each respondent is entitled to have the claims made against it or him, which include, notably, allegations which are tantamount to fraud, heard as soon as reasonably possible.

32    Oppenheim’s summary of circumstances where it would be an affront to the sovereignty of one state for another state to engage in particular activities is given content in relation to the exercise of judicial power by the concept of comity. In CSR Limited v Cigna Insurance Australia Ltd (1997) 189 CLR 345, the High Court referred with approval to a formulation of the concept of comity by the United States Supreme Court in Hilton v Guyot (1895) 159 US 113 at 163-164 where the following appears:

“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 to international duty and convenience and to the rights of its citizens, or of other persons who are under the protection of its laws.

33    At present, I have the benefit of the views of Australia’s executive government as to the result of communications with the UAE. Those views are set out in DFATs letter to the District Registrar of 14 June 2011. I take the view that the views there expressed are relevant, persuasive, but not determinative. Each party accepted that that was the status of those views. It seems to me that there is analogy to be drawn between the views there expressed and the views which an officer of the executive government might express on a public interest immunity question touching on matters of international relations. There, and, I consider, in this case, it is for the Court to form its own views as to the import of the particular communications. In so doing, a court must be conscious that it does not have the benefit of the Australian diplomatic service network and the experience thereby gained in dealing with foreign governments; nor is it the function of the judicial branch of government to conduct the foreign relations of Australia. That is a matter for the executive government and, insofar as the Constitution provides for ministerial responsibility, for the Foreign Minister to be responsible to the Australian parliament for the conduct of foreign relations. It would, therefore, be a considerable thing for a judge to form a different view as to the import of communications with a foreign government.

34    Submissions have been made to me as to the effect of communications which have passed, insofar as they are known and in evidence, between the Australian government and the UAE government. The long and the short of it, though, is that however one approaches those communications there is presently no permission by the UAE government for evidence to be taken by video-link. It might be said, and indeed it was urged, that there is no refusal of permission. Having regard to the advice of 14 June, I doubt that that is so.

35    What is more pertinent, though, is that there is no permission. Why that is more pertinent emerges from the nature of the reception of evidence by video-link in an Australian judicial proceeding. Hitherto, the view has been formed that the reception of such evidence occurs in the judicial proceeding. Thus, in Bell Group Ltd (in Liq) v Westpac Banking Corporation (2004) 208 ALR 491 (Bell Group v Westpac), Owen J made reference at [37] to an unreported decision of Batt J in the Supreme Court of Victoria, Director of Public Prosecutions v X (unreported, 29 March 1994), where Batt J had stated:

There is, in my view, much to be said for the view that such an examination is conducted before the magistrate sitting [in Victoria]. As Lord Donaldson MR said in Henderson v SBS Realisations (unreported, Court of Appeal, England, 13 April 1992):

“a video link is, for all practical purposes, very much the same as hearing the evidence in court”.

36    Owen J also made reference to a decision of Williams J of the High Court in New Zealand, B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95, where his Honour had expressed very similar views about video-link evidence. Having so done, at [39] Owen J stated:

I think what his Lordship had in mind was that the end result is similar, namely evidence given by a witness who can be seen and heard by those in the courtroom and whose testimony occurs in "real time".

37    Later at [81] Owen J concluded:

I have already indicated a view that proceedings using a video link are relevantly “before” the court and that the relevant examination is "before" the trial judge. I also accepted the analysis from other cases that "a video link is, for all practical purposes, very much the same as hearing evidence in court".

38    It will be necessary to refer to another observation of Owen J shortly. Before so doing, reference ought also to be made to Yamouchi v Kishimoto (2002) 12 NTLR 32, where at [16] and against the background of it being accepted that the government of Japan would not allow witnesses to be examined on commission in that country, Thomas J stated:

I accept the submission made by Mr Walsh QC that without appropriate authorisation 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.

39    To return to Bell Group v Westpac, at [118], Owen J observed:

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 on the degree of certainty that I would require.

40    Here it appears that our government, in the form of its executive branch advice through DFAT of 14 June 2011, takes the view that the taking of evidence on commission by me in Dubai has been refused by the UAE Government. I am not disposed to differ from that view. I also have no evidence that the UAE Government would permit the taking of evidence by video-link. A concern which I have, were I to embark upon that course without that permission, is that it 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.

41    It was put in submissions that Mr Joyce, and perhaps also the other persons the subject of request, save Mr Lee, would attend voluntarily. I understood that to be part of a submission that in some way this would mean that it was not, in Dubai, an assertion of Australian judicial power for them to sit there and give evidence which would be transmitted to this Court by video-link. I reject that submission. A reason for so doing 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.

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.

43    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: see Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598, Barrett J.

44    That distinction inspired an alternative which was put on behalf of some respondents, which was, in lieu of evidence being taken by video-link that, perhaps unusually, I constitute myself in Australia as a commissioner and take evidence on commission in Australia by video-link from Dubai. Whilst the ingenuity of that submission is to be commended, its end result, with respect, in my opinion, should be no different. In other words, it should be refused. Why that is so is that, in the face of a refusal by a sovereign government for me to take evidence on commission in person in Dubai, it would, in my view, be an impertinence and quite contrary to the principles described in Oppenheim, and contrary to notions of comity, for me to seek to subvert that refusal by remaining in Australia and taking evidence on commission from Dubai by video-link.

45    The end result of all this is that I am not disposed, on the material to hand, to order the taking of evidence by video-link, nor, though, am I disposed forever to foreclose that course.

46    Thus far, communications with DFAT in relation to the taking of evidence on commission or by video-link have been made via the Court’s District Registrar. They have been so made by my direction on the basis that it did not seem appropriate for that department to receive perhaps conflicting requests in respect of the same subject from differing parties. Rather, the course has been adopted of providing the drafts of communications, by the Court to DFAT to the parties for comment. That has had the convenient result of assimilating all of the views of the parties and then giving to DFAT one considered request. The end result of all that process is the communication of 14 June 2011. That, in my view, brings to an end, at least for the present, a process of communication as between the Court and DFAT. Each party, though, is perfectly at liberty for its own ends to make such request as it may be advised of DFAT. The DFAT will then make such value judgment as it considers appropriate as to whether to initiate further communication with the authorities in the UAE. Such value judgments in respect of the conduct of Australia’s foreign affairs are matters for the executive government via the Minister for Foreign Affairs and Trade and his officers within DFAT, not the Court.

47    Recognising the difficulty which might be presented, especially having regard to Owen J’s observation in Bell Group v Westpac Banking Corporation with respect to pressing for video-link evidence at present in the absence of permission from the UAE Government, the Sunland parties did not press for an order for the taking of evidence by video-link at present as opposed to seeking that the same be preserved as an option, depending upon the results of further endeavours. That in my view is the appropriate course to take.

48    I am fortified in that regard by reference to some evidence concerning the law of Dubai, which was given last year by persons expert in that law, Mr Karim Nassif and Ms Soraya Corm-Bakhos of Al Mulla & Co, in letters of 31 March 2010 and 1 April 2010 to the fourth respondent’s solicitors. While I have taken into account all of the contents of those letters in reaching the views that I have as to the presently inappropriate quality of ordering evidence to be taken by video-link, I have noted particularly the following features: the opinion that there is no specific legislation in Dubai to deal with the taking of evidence in Dubai for use in a foreign proceeding, that there is no law in the UAE protecting witnesses from being sued with respect to their statements, and this passage:

As previously advised, we could not identify any provision prohibiting the hearing of the witnesses in Dubai for use in foreign proceedings. 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 witnesses in Dubai for use in the Australian proceeding.

49    It would seem to me to be desirable for there to be evidence that the UAE Government would have no objection to the taking of evidence by video-link, at the very least, before any such order was made by this Court.

50    For completeness, I should observe that reference was made in the course of submissions on behalf of Mr Joyce, which were adopted on behalf of other respondents, to s 47A of the Federal Court of Australia Act 1976 (Cth). That submission was made so as to develop why it was that there could be no objection to the making of an order for the reception of evidence by video-link. I should observe at once that I do not consider this to be a question of whether or not there is power to order the reception of evidence by video-link. Of course there is. It is a question of whether or not a discretion should be exercised to permit that. In that regard, s 47A undoubtedly offers some amelioration in respect of one aspect of the taking of evidence, which is that usually evidence will be taken on oath or affirmation. What it does not do, though, is to alter the circumstance that the evidence is nonetheless evidence in a judicial proceeding where, in the ordinary course, a witness can be required to answer a question. To make such a requirement is to assert judicial power. To make such a requirement of a witness who is located abroad is to assert judicial power abroad, and so to do without the permission of that nation-state is to violate the sovereignty of that nation-state.

51    All of this would of course be academic if there were some established procedure under treaty by reference to which evidence might be taken either on commission or by video-link as between the UAE and Australia. There is no such treaty as between our country and the UAE.

52    For all of these reasons, then, the applications for the taking of evidence by video-link from Mr Joyce and the other persons, save for Mr Lee, who have been named in communications with the UAE Government made on behalf of each of the respondents is refused. I emphasise that that refusal is without prejudice to an ability on behalf of each of the respondents and the applicants to renew that application at a later date if so advised on further evidence.

53    A necessary consequence of the refusal, coupled with what seems to be, an accepted inability for me to take evidence on commission in Dubai as previously planned, is that the trial of this proceeding must be adjourned.

54    It also seems to me, such is the importance of reception of the evidence from Mr Joyce, that a necessary consequence of the inability to take his evidence is that the proceedings ought to be stayed until further order. Again, I emphasise that the intent of that is not permanently to stay the proceedings but rather, subject to a reservation of liberty to apply, to stay the proceedings until such time as a party makes application which would permit the trial of the proceeding to occur in a way that is procedurally fair to each of the parties.

55    There will be orders accordingly, which will reflect a dismissal of the present applications for video-link evidence.

56    I will reserve the costs of today. I will also reserve such costs, if any, as are occasioned by the adjournment of the trial. In respect of both the costs of today, as well as other that reservation of costs, I also make the observation that I do not consider the adjournment to be the fault of any party, but rather to be the result of an act of state. I make that observation for such utility, if any, as it may have in the event that the case were to proceed to a taxation of costs, and also so that the view that I have formed is not forgotten in the event that I later have to determine the question of the costs, either of the adjournment or of today for any party. I will also adjourn to a date to be fixed also with costs reserved a separate application with respect to the subpoenas.

Associate:

Dated:    26 July 2011