Federal Court of Australia

Tang v Yu (application to vacate) [2023] FCA 1540

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the first respondent on 30 November 2023 be dismissed.

2.    The applicant produce to the first respondent as soon as possible the original electronic form in which the applicant has the documents that are reproduced at pages 6, 7, and 8 of the affidavit of Jie Shi Lee dated 30 November 2023.

3.    The costs of the interlocutory application filed by the first respondent on 30 November 2023 be reserved, save that if no further order is made in relation to them they become costs in the cause.

4.    The first respondent be granted leave to discontinue the interlocutory application filed on 24 November 2023.

5.    Costs of the first respondent’s interlocutory application filed on 24 November 2023 be reserved.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

STEWART J:

1    This is the first morning of the trial of this matter. It has been listed for three days.

2    The essential basis for the first respondent’s interlocutory application to vacate the trial dates is that a document was produced in a particular form for the first time by the applicant to the first respondent as an annexure to an affidavit of Ms Lee (the applicant’s solicitor) late on 30 November 2023, ie one clear business day before the trial. In my assessment, that document falls within the corpus of documents that should have been discovered in accordance with discovery orders at an earlier time in the proceeding, and the production of it in that form therefore constitutes the late discovery of the document. As I will get to, the document is “directly relevant” to the issues raised by the pleadings as referred to in rr 20.14(1) and (2) of the Federal Court Rules 2011.

3    In order to understand the application, it is necessary to go back a little to appreciate the allegation in the pleadings to which that document is relevant.

4    Right from the first iteration of the statement of claim in this proceeding back in May 2020, the allegation was made by the applicant that on 28 April 2018 the first respondent represented to the applicant that he, that is, the first respondent, had invested his own capital of $700,000 in the particular investment scheme that is the subject of the case. The particulars given in respect of that representation were that it was written and was contained in a WeChat text message between the applicant and the first respondent at 10.55 am on 28 April 2018. It was said that that WeChat message enclosed an image of a trust account statement – which I will hereafter refer to as the “Piper Alderman trust account statement” – stating that the first respondent had deposited $700,000 into the named account alongside the applicant’s deposit transactions.

5    A screenshot from a mobile phone – or so it appears – that shows the WeChat message in question at 10.55 am on 28 April 2018 was produced by the applicant in discovery years ago in this proceeding. Within that screenshot can be seen an image, being a thumbnail of the message in question, and within that image can be seen what would appear to be the Piper Alderman trust account statement. It is too small and the text too indistinct to be able to make out just what is written, but it is in all respects similar in appearance to what was also produced on discovery by the applicant, namely, what is referred to as a greyscale version of the Piper Alderman trust account statement. That is a fully legible copy of the statement which one infers was printed from the message.

6    So, what was produced on discovery, to be clear, is a screenshot showing a thumbnail of the WeChat message of 28 April 2018 which shows within it the trust account statement, and secondly, a greyscale reproduction of the trust account statement itself. What was not produced was the message (ie the thumbnail) within the screenshot. That is the document which was produced only on 30 November 2023 as referred to at the outset. It was produced in a printed fully legible form which clearly shows the text of the Piper Alderman trust account statement.

7    On 6 September 2023, the first respondent sought by way of solicitor’s letter “a clear, coloured high-resolution copy of the image contained in Item 54, Page 82 of GT-18”, that being a reference to the screenshot described above. It had been discovered in that form in March 2021 pursuant to orders for standard discovery. Further discovery orders were subsequently made on 19 October 2023, ordering that discovery be given in accordance with that letter. That particular request in the letter for a particular image could have been referring to one of three things. It could have been a reference to the screenshot, or it could have been a reference to the message within the screenshot (ie the thumbnail), or it could have been a reference to the trust account statement that can be seen in the thumbnail. The latter, that is to say the trust account statement, was produced by the applicant on 3 November 2023 in response to the later discovery orders. It had, of course, been produced much earlier as well. It appears now that what the first respondent intended to ask for was a clear, coloured, high-resolution copy of the screenshot, not the message within the screenshot.

8    In any event, following the production of the trust account statement in response to that letter and the orders for discovery on 3 November 2023, there was no follow-up from the first respondent clarifying exactly what was sought, and, more particularly, there was no complaint raised that what had been provided was not what had been sought. However, on 24 November 2023, the first respondent filed an interlocutory application to exclude the trust account statement from evidence in reliance on s 169 of the Evidence Act 1995, that is to say, it was said that that evidence should be excluded because there had been a request for a document which had not been produced. That application caused further search to be made by the applicant which resulted in his solicitor’s affidavit of 30 November 2023, which produced the message within the screenshot. As mentioned, that is the first time that that document had been produced in that form.

9    I am not persuaded that the late production of that particular document is an adequate basis to vacate the hearing. There are a number of considerations in that regard.

10    First, this issue could have been agitated a long time ago. That is to say, what was sought in the letter of 6 September 2023 could have been sought a long time before that, and if there had been a misunderstanding as to exactly what was sought, that could have been followed up a long time ago. Had that occurred, the first respondent might have been in the position that he is now in well ahead of the hearing.

11    Secondly, when what was sought in the letter of 6 September 2023 was not produced on 3 November 2023, it could have been followed up then. Had that been done, noting of course that what was sought was not what was ultimately produced on 30 November in any event, once again the first respondent might have been in the position he is in now a lot earlier.

12    Thirdly, the reason why the first respondent seeks to vacate the hearing on the basis of the late production of the message within the screenshot is to enable that document to be forensically examined to see whether it was altered at any time. The implication is that it may be contended that what was sent by the first respondent to the applicant at 10.55am by way of WeChat message on 28 April 2018 was not the form of the Piper Alderman trust account statement reflecting the first respondent as having deposited $700,000 to the trust account on that day, but rather the genuine version of the Piper Alderman trust account statement which has the name of a Ms Gu adjacent to the relevant deposit.

13    However, the first respondent does not say in his affidavit evidence (to be relied on in chief) that he sent the Piper Alderman trust account statement to the first respondent in a form any different from how it appears in the message within the screenshot. That is, he does not say that he sent it with Ms Gu’s name on it, as in the genuine version, rather than his own name. Rather, he says that he does not know what form it was in when he sent it. In other words, there is no evidence to gainsay the evidence of the applicant that the form in which the Piper Alderman trust account statement was sent to the applicant reflected the first respondent as having been the relevant depositor.

14    That is an infirm basis to justify the vacation of the hearing dates. If the first respondent positively asserted that the document was sent in a different form and there were therefore two conflicting versions to have to choose between, and the forensic examination of the document may have been very helpful in making that choice, the position may have been different. But those are not the circumstances that are presently faced.

15    Fourthly, I am not satisfied that forensic examination of the document will make a difference. Or, perhaps more to the point, I am not satisfied that not vacating the hearing will produce an unfair trial. In order to be sure of that, I propose to order that the original electronic form in which the applicant has the following documents be provided to the first respondent as soon as possible. That will enable at least preliminary examination to occur while the trial proceeds.

16    The documents to be produced in the original electronic form in which the applicant has them are the documents reproduced at pages 6, 7 and 8 of the affidavit of Ms Lee dated 30 November 2023, ie the first screenshot, the trust account statement and the screenshot within the screenshot. The hearing should continue, and if something comes of the production of those three documents over the course of the following days of the hearing, of course some further application can be brought as may be appropriate at that time.

17    So I make the following orders:

(1)    The interlocutory application by the first respondent filed on 30 November 2023 to vacate the hearing be dismissed.

(2)    The applicant produce to the first respondent as soon as possible the original electronic form in which the applicant has the documents that are reproduced at pages 6, 7 and 8 of the affidavit of Jie Shi Lee dated 30 November 2023.

(3)    The costs of the interlocutory application be reserved save that if no further order is made in relation to them, they become costs in the cause.

Associate:

Dated:    4 December 2023