Federal Court of Australia

Qinao Lianchuang (Zhuhai) Development Co., Ltd v Shandong Yulong Gold Co., Ltd (Evidence Abroad) [2026] FCA 1554

ORDERS

THE COURT ORDERS THAT:

1. The parties confer and provide to Chambers short minutes of order giving effect to these reasons.

2. Costs be reserved.

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

ORDERS

THE COURT ORDERS THAT:

1. The parties confer and provide to Chambers short minutes of order giving effect to these reasons.

2. Costs 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

YOUNAN J:

1 There are two ways to break the deadlock between the parties.

2 One is to adopt the course proposed by the applicants, which is to grant leave for the evidence of Mr Fenqi Lu to be given by audio-visual link (AVL) from the People’s Republic of China, pursuant to s 47A of the Federal Court of Australia Act 1975 (Cth).

3 The other is to adopt the letter of request procedure proposed by the respondent pursuant to s 7(1)(c) of the Foreign Evidence Act 1994 (Cth), which includes a request for a special procedure of cross-examination. I am not satisfied that such a procedure will be categorically denied. At the same time, I cannot say on the evidence before me that it is likely to be acceded to.

4 Nevertheless, in my view, that is not a reason to deny that procedure. It has not been demonstrated to be incompatible with Chinese law (viz., Art 294 of the Civil Procedure Law of the People’s Republic of China) or impossible of performance, within the meaning of Art 9 of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Opened for signature 18 March 1970. 847 UNTS 231 (entered into force 7 October 1972).

5 In both instances, the attitude of the Chinese authorities to the proposed special procedure will become apparent.

6 The respondent’s proposal has the advantage of common ground, in that it is accepted that it is permitted under Chinese law. It also has the advantage of a concession by the respondent that it will not object to any application to withdraw the request should the special procedure not be followed.

7 The disadvantage of the applicants’ proposal is that its legality is contested by foreign law experts. The Court may have been assisted in the resolution of that contest by the cross-examination of the experts. No such examination was proposed by either party.

8 The further disadvantage of the applicants' proposal is that it relies on at least the administrative assistance or co-operation of Chinese authorities, in particular those responsible for Mr Lu's detention. There is evidence that attempts to date to enlist that co-operation have not been successful. This includes a written request to the Shanghai Detention Centre, where Mr Lu is currently detained, seeking assistance in enabling Mr Lu to attend a hearing by AVL, including for the purposes of cross-examination, before this Court.

9 I also note that the evidence of Mr Lu's conviction, and his proposal to appeal his conviction, may add an additional layer of complexity to any request to take evidence from Mr Lu via AVL or otherwise. This is not squarely addressed by the expert witnesses. In the absence of examination of these witnesses, that is not something that can presently be ascertained.

10 I am conscious of the delay to date in settling on, and executing, a procedure to procure the evidence of Mr Lu, which is significant to the applicants' enforcement action.

11 Therefore, I am inclined to make orders consistent with those proposed by the respondent. I consider that it is in the interests of justice to issue a letter of request substantially in the form proposed by the respondent. It is evident that this will at least set in course a procedure whereby Mr Lu's evidence might be obtained in the next 6 to 12 months (as recently estimated by the Ministry of Justice of China and published on a website maintained by the Hague Conference on Private International Law), bearing in mind that the enforcement proceeding in this Court is yet to be listed for final hearing.

12 If the evidence of Mr Lu is not to be obtained via cross-examination, then there is nothing before me to suggest that the applicants cannot approach this Court to withdraw the request and pursue evidence to be taken by AVL, if that course is available. The respondent has made an appropriate concession in that regard.

13 Finally, I ask that the respondent draft short minutes of order, and resolve the content of the letter of request with the cooperation of the applicants, that reflect the orders proposed by the respondent and the concessions made by the respondent in the form of notes to those orders.

Associate:

Dated:    20 October 2026