What you need to know
- The Federal Court has granted an adjournment to Hytera in patent and copyright infringement proceedings brought by Motorola.
- The adjournment was granted as seven key witnesses for Hytera were resident in mainland China, and could not travel to Australia for the hearing due to COVID-19 travel restrictions in time for the hearing.
- Hytera submitted that the civil procedure laws in China do not allow the giving of evidence in other jurisdictions through videoconference without China's permission.
What you need to do
- Consider well in advance of a hearing whether witnesses will be available in Australia for cross-examination due to restrictions on international travel.
- Consider whether the jurisdiction in which witnesses are resident has any legal restrictions on giving evidence remotely.
- It is important to note that the Court has indicated that time zone differences for parties or witnesses appearing remotely are not sufficient to warrant an adjournment of proceedings.
Motorola Solutions Inc (Motorola) filed a statement of claim in the Federal Court of Australia alleging patent infringement by Hytera Communications Corporation (Hytera) in July 2017. The proceedings follow the patent infringement and trade secret misappropriation complaints filed by Motorola in the US and in Germany. In its claim, Motorola alleges that certain Hytera digital mobile radios offered for sale in Australia infringe three of Motorola's Australian patents, and also claims copyright infringement by Hytera.
The hearing of the main claim and the cross claim were part-heard before Justice Perram and were due to resume from 4 May 2020.
Application for adjournment
On 14 April 2020, Hytera filed an interlocutory application seeking an adjournment of the May hearing date, as seven of its witnesses were located within the mainland of the People's Republic of China and could not attend the hearing due to international travel restrictions as a result of COVID-19. The interlocutory application was heard before Justice Perram on 15 April 2020.
In addition, Hytera submitted that it was not possible to cross-examine these witnesses by video-conferencing, because this was not permitted under the Civil Procedure Law of the People's Republic of China (1991) (Chinese CPA). According to Hytera, the taking of evidence within the territorial confines of China requires the permission of the Chinese State under the Chinese CPA and what's more, such consent would need to be sought and obtained under the Hague Convention. Hytera submitted that obtaining the required permission was a slow process, and highly unlikely to be completed before the trial.
Motorola disputed that the Chinese law operated in the way described by Hytera, but conceded that for practical reasons, the Court would need to accept that the seven witnesses could not be cross-examined by video-conferencing.
The rule in Browne v Dunn
In opposing the adjournment application, Motorola indicated that it did not require the seven witnesses for cross-examination, however it did intend to rely on other evidence which it argued would contradict the evidence given by the seven witnesses. Motorola indicated that it intended to argue that the Court should not accept the seven witness testimonies. Both parties accepted this would be a breach of the rule in Browne v Dunn (1893) 6 R 67, which places an obligation on a party to cross-examine an opponent's witness on evidence it intends to rely on in contradiction of that witness's evidence.
Motorola, however, indicated that it intended to rely on an exception to the rule in Browne v Dunn, in the event that the witnesses were not able to enter Australia, and could not give evidence from China over video-conference.
Reasons for adjournment
Justice Perram granted the adjournment sought, on the basis that he was not willing to consider evidence which contradicts that of the seven witnesses without hearing the witnesses' answers to this evidence.
In granting the adjournment, the Court acknowledged that it would prejudice Motorola in that it would cause further delay and for an uncertain duration, but he considered an adjournment was nonetheless appropriate in the circumstances, noting that those circumstances were not Hytera's fault.
In granting the adjournment, Justice Perram noted that he rejected Hytera's submission that any time zone differences between Australia and China would create problems in conducting a remote trial. The Court noted that time zone differences and a reliance on video-conferencing are insufficient alone to justify adjourning a hearing in most cases.
Authors: Maggie Kearney, Lawyer; and Anita Cade, Partner
