Background
The proceeding was listed for a six-week trial commencing on 26 October 2026. On 19 August 2026, Hindman J granted the first and third to sixth defendants leave to have three witnesses give evidence from Hong Kong by audio-visual link (AVL): the first defendant, Wenliang Yao; the third defendant, Lianru Zhao; and a non-party witness, Ms Chen. The orders were pronounced but never formally taken out or filed.
The plaintiffs had not opposed AVL evidence from Mr Yao after receiving a late medical certificate said to show that he had pancreatic cancer, was to undergo treatment from 12 October 2026, and should not fly. They then promptly investigated the certificates. Email responses purportedly from the named physician and the hospital’s medical affairs department stated that the certificates were false, the signature was not genuine, and the hospital had no treatment or consultation record for Mr Yao.
The Court’s Holding
Muir J set aside the AVL order insofar as it permitted Mr Yao to give evidence remotely. Under r 667(1) of the Uniform Civil Procedure Rules 1999 (Qld), the Court retained a broad discretion to vary or set aside the unperfected orders. The plaintiffs had acted promptly and without fault, and both they and Hindman J had proceeded on the mistaken factual premise that there was no reason to question the second medical certificate’s authenticity.
The evidence did not establish, to the strict standard required, that the certificates were forged or that Mr Yao had committed fraud. But hearsay was admissible on this interlocutory application, and the material was sufficient to cast real doubt on the certificates. Had that material been before Hindman J, it was highly likely that AVL leave for Mr Yao would not have been granted. The Court declined to set aside the AVL orders for Ms Zhao and Ms Chen because the evidence did not prove fraud infecting those orders.
Key Takeaways
- An unperfected order may be revisited under r 667(1) without proving fraud or satisfying the narrower conditions in r 667(2) or r 668.
- Hearsay evidence may be admitted in an interlocutory application, subject to the weight the Court gives it.
- Real doubt about key medical evidence, coupled with prompt investigation, can justify revoking leave for remote testimony even where fraud is not proved.
Why It Matters
The decision distinguishes between proof sufficient to establish fraud and material sufficient to show that an interlocutory order was made on a materially mistaken factual basis. It also illustrates the Court’s willingness to revisit an unperfected case-management order where the interests of justice outweigh finality.