[1] The appellants appeal to this Court against a ruling made by Allan J during the course of a High Court trial refusing to allow the evidence of an intended witness of the appellants, Guiting Liu, to be adduced by a video link.[1] Mr Liu is imprisoned in China, but was apparently available to give evidence by video link. For obvious reasons he was not able to travel to New Zealand to give evidence in person. Counsel for the appellant, Mr Katz QC said that the proposed evidence of Mr Liu was critical to the appellants’ case (they are the defendants in the High Court).

High Court application

[2] The application to the High Court Judge was one of many made during the course of the trial by the appellants’ trial counsel, who had been instructed during the first week of the trial. The case had had a troubled procedural history which is detailed in the judgment under appeal. We do not need to repeat it here. It can, however, be fairly said that the history substantiated the Judge’s comment that the respondents had been ready for trial and the defendants had not.
[3] The application was made under s 103 of the Evidence Act 2006, which permits certain alternative ways of giving evidence. There was no dispute that Mr Liu was unable to come to New Zealand to give evidence, and the focus of the High Court’s assessment of the issue was on the criterion described in s 103(4)(a)(i), namely the need to ensure the fairness of the proceeding.

High Court decision

[4] The Judge summarised the position as follows:[2]

a) Mr Liu has no effective ability to obtain legal advice as to whether or not he is required to comply with the subpoena;

b) In a complex commercial case involving thousands of documents and numerous inter-related legal issues, Mr Liu is presently ignorant, not only of the substance of the case, but even of its existence;

c) Most of the documents in the bundle are in English, which Mr Liu does not understand;

d) It would take many weeks to translate those documents to which he might be referred in examination in chief and cross-examination;

e) In a case where credibility is an issue, Mr Liu would be obliged to give evidence through an interpreter, a matter which raises significant difficulties for a Judge required to make credibility findings in respect of a witness giving evidence by video link;

f) The proposal is that Mr Liu be called by the defendants, whose interests are diametrically opposed to those of Mr Liu and the plaintiffs, with the result that he would effectively be cross-examined by Mr Hucker, and inevitably treated as a hostile witness:

g) Mr Chen requires the leave of the Court to make the application in respect of Mr Liu, by reason of Mr Chen’s own very serious delays.

[5] His essential reasoning followed.

[102] I regard this as a quite extraordinary application which it would not be proper to grant. Had Mr Chen prepared his defence in good time then it may have been possible to ameliorate some of the difficulties which I envisage in respect of the proposal to have Mr Liu give evidence in China. But instead of preparing for trial, Mr Chen was preoccupied with successive attempts to obtain an adjournment. There was no suggestion that Mr Liu would be called as a witness until Mr Hucker became involved in the case on the second day of the trial. One infers that it was Mr Hucker who, having made himself familiar with the case, advised Mr Chen that Mr Liu should be called as a witness.

[103] I am satisfied it would not be in the interests of justice for Mr Liu to be required to give evidence by video link from China. Insofar as it seeks that outcome, Mr Chen’s application is dismissed.

Issues

[6] Two significant issues arise on the appeal. The first is whether the Court has jurisdiction under s 66 of the Judicature Act 1908 to hear the appeal, and the second is whether the appellants have shown that the Judge wrongly exercised his discretion.

Jurisdiction

[7] The amenability of findings made in the course of a trial to appeal (other than an appeal against the ultimate outcome) has been something of a vexed issue. The leading decisions are: Winstone Pulp International Ltd v Attorney General[3] and Association of Dispensing Opticians of New Zealand Inc v Opticians Board.[4]
[8] In the latter case Richardson P summarised the problem in these terms:[5]

In that regard rulings made either in the course of the hearing of the proceeding (using that term in a broad sense, including for example an adjournment application), or as part of a trial conduct or management process would not ordinarily be susceptible to interlocutory appeal. On the other hand rulings which have some substantive effect on rights and liabilities in issue would be. Obviously the boundary lines will not be cut and dried and, as seen in Winstone, particular cases may fall into an exceptional category but that classification may be helpful as a matter of general approach.

[9] We doubt that this case falls into the exceptional category that Richardson P described, and we do not see the ruling made by the Judge in this case as having such a substantive effect on the proceeding that an interlocutory appeal should be allowed. So our tentative view is that no appeal should be permitted in the circumstances of this case.

Merits

[10] However, it is not necessary for us to express a concluded view on that because we are satisfied that, on the merits, the appeal fails. As Mr Katz accepted, the appeal is against the exercise of a discretion. We have carefully reviewed the Judge’s reasoning and in our view it is unassailable. Mr Katz said everything that could be said in support of the appeal, but we are satisfied that the Judge took into account all relevant matters, did not take into account irrelevant matters and that his decision was not plainly wrong. On the contrary, we agree with his assessment for the reasons he gave.

Result

[11] For those reason we dismiss the appeal.

Costs

[12] Costs are reserved.

Solicitors:
Queen City Law, Auckland for Appellants
Hesketh Henry, Auckland for First Respondents

[1] Yang v Chen HC Auckland CIV-2007-404-1751, 13 May 2010.
[2] At [101].
[3] Winstone Pulp International Ltd v Attorney General [1999] NZCA 164; (1999) 13 PRNZ 593 (CA).

[4] Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158 (CA).
[5] At [36].

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