The Epoch Holding Group Pty Ltd v Katz (Evidence Admissibility)

This judgment records a narrow procedural ruling in Federal Court proceedings between The Epoch Holding Group Pty Ltd and related applicants, and David Katz. The published reasons do not explain the full commercial background or the substantive copyright allegations. That matters, because this is not a merits decision about ownership, infringement, or final relief.

What the Court was asked to decide here was much more specific. The applicants wanted to rely on two affidavits from Professor Gene M Burd, an American attorney at law, on an interlocutory application. The application before Needham J was for the Court's approval to make an application for orders under §1782 of Title 28 of the United States Code. Professor Burd's affidavits were directed to the way relevant US law would be applied so as to facilitate the issue of subpoenas.

The immediate fight was over whether those affidavits could be read at all, and whether some parts of one affidavit went too far. That made the case an evidence admissibility ruling with a cross-border flavour, rather than a substantive copyright judgment.

The respondent raised two categories of objection.

First, there was a global objection to both affidavits. Professor Burd was not an independent expert. He was a member of Pierson Ferdinand LLP, the firm that would act on the proposed §1782 application if approval were granted. The respondent argued that this lack of independence, together with non-compliance with the usual expert evidence framework, meant the affidavits should be rejected. The objections referred to the Expert Evidence Practice Note, including the Harmonised Expert Witness Code of Conduct, and to s 79 of the Evidence Act 1995 (Cth). The respondent also argued there would be prejudice if the affidavits were read.

Secondly, there were targeted objections to specific passages in the 1 August 2024 affidavit. The respondent challenged the last three sentences of paragraph 44 and all of paragraph 46. The complaint was that these passages did not merely explain the content of foreign law. Instead, they were said to express opinions about how American law would be applied in US courts.

That distinction was central. Australian courts can receive evidence about foreign law, but they are cautious about turning an interlocutory hearing into a detailed contest about how a foreign court is likely to exercise its procedures in a particular case.

The Court had to decide whether two affidavits from a US attorney were admissible on an interlocutory application seeking approval to make a proposed §1782 application in the United States. That raised several linked questions.

Did r 23.11 of the Federal Court Rules 2011 (Cth) prevent the evidence from being read? Did the fact that Professor Burd was not an independent expert make the affidavits inadmissible under s 79 of the Evidence Act 1995 (Cth)? Did non-compliance with the Expert Evidence Practice Note require exclusion? And should particular passages be rejected because they were opinions about the application of foreign law, rather than evidence of the content of foreign law?

The reasons also show the Court was alive to the difference between admissibility and weight. Even if the affidavits were admitted, the Court still had to consider later what weight, if any, should be given to them.

Needham J admitted the affidavits, subject to limited exclusions. The Court held that the affidavits were not excluded by r 23.11 of the Federal Court Rules because the matter before the Court was an interlocutory application rather than a trial. The judge noted the definition of a trial in the dictionary and was satisfied the rule did not operate to exclude the evidence in this context.

The Court was also not persuaded that the mere fact Professor Burd was not an independent expert took the affidavits outside admissibility under s 79 of the Evidence Act. The reasons refer to Mumbin v Northern Territory of Australia (No 1) and note that the Court had a discretion to waive any applicable rules. Needham J said that, if necessary, any requirement of compliance with the Expert Evidence Practice Note would be waived, but the judge did not consider such a waiver necessary because the Practice Note did not preclude this kind of evidence.

However, the Court accepted the targeted objection in part. The last three sentences of paragraph 44, commencing with “Further”, and all of paragraph 46 of the 1 August 2024 affidavit were rejected. Needham J considered those passages to be expressions of opinion as to the application of foreign law, rather than evidence as to the content of foreign law.

The Court also made an important reservation. Admissibility did not settle the question of weight. The judge expressly noted that further submissions could be made about the weight to be given to Professor Burd's evidence as the application proceeded.

This is the most useful practical point in the judgment. The Court accepted that a foreign lawyer can give evidence about the content of foreign law relevant to the application before the Court. But it drew a line when the affidavit moved into opinion about how that foreign law would be applied by foreign courts.

The reasons refer to Lavecky v Visa Inc, where Perram J warned against the Australian court getting drawn into the procedural law of foreign courts beyond what is necessary. The quoted passages in Lavecky emphasise that, beyond satisfying itself that what is proposed is not obviously a waste of time, the Australian court should not spend its time working out the procedural law of foreign courts that are better placed to do so.

That explains why some of Professor Burd's evidence was admitted and some was not. Evidence describing the relevant US legal framework could assist the Court. But statements crossing into prediction or evaluative opinion about how US courts would apply that law in the particular circumstances were treated differently and rejected.

For businesses and their advisers, this is a drafting issue as much as a legal one. A carefully framed affidavit can explain the foreign legal mechanism, the available process, and the legal source of the power. A more ambitious affidavit that effectively argues what the foreign court will do may invite objections and partial exclusion.

Businesses should read this as a procedural case about interim evidence strategy, not as a broad statement about copyright law or final proof in cross-border disputes. The ruling shows that the Federal Court may take a practical approach at an interlocutory stage. If a foreign lawyer is the person best placed to explain a foreign legal process, the Court may admit that evidence even if the witness is not independent in the usual expert sense.

But the decision is not a licence to ignore expert evidence discipline. The respondent's objections were serious, and the Court still excluded parts of the affidavit. The witness's lack of independence remained relevant to weight, and the Court left that issue open for further submissions. So a business should not assume that getting the affidavit admitted means the Court will rely on it heavily.

In practical terms, this matters where an Australian dispute has an overseas evidence-gathering step, such as a proposed subpoena process or another foreign court application. If your affidavit is too broad, you may face objections, delay, and extra cost. If it is too thin, it may not give the Court enough confidence to permit the overseas step. The judgment points toward a middle course: explain the foreign legal framework clearly, avoid overstatement, and recognise that the Court may only want enough information to be satisfied the proposed foreign process is not obviously futile.

It is also important not to overread the case. The published reasons are short and procedural. They do not tell the full story of the underlying dispute, and they do not decide the ultimate rights of the parties. Businesses should therefore treat the case as guidance on admissibility at an interim stage, not as a complete roadmap for every foreign-law evidence issue.

The judgment highlights a few practical pressure points in document preparation and litigation conduct.

First, identify early whether you need evidence of foreign law at all. If the Australian court only needs to be satisfied that a proposed foreign process is available and not obviously pointless, a concise affidavit may be enough.

Secondly, decide who should give that evidence. This case shows that a foreign lawyer involved in the matter may still be able to give admissible evidence on an interlocutory application. Even so, if independence is likely to be contested, that should be factored into strategy from the start.

Thirdly, draft with discipline. Separate statements about the content of foreign law from any submissions about what should happen in the case. The more an affidavit reads like advocacy about how a foreign court will act, the more vulnerable it may be to objection.

Finally, remember that admissibility and weight are different. A business can spend significant time and money defending an affidavit from exclusion, only to find the Court gives it limited weight because of the witness's role or the way the evidence is framed.

The judgment is an ex-tempore ruling revised from transcript and delivered by Needham J on 2 October 2024 in the Federal Court of Australia. The file number recorded in the reasons is NSD 527 of 2022.

The orders made on that date rejected only the last three sentences of paragraph 44, commencing with “Further”, and paragraph 46 of the affidavit of Professor Gene M Burd dated 1 August 2024. The rest of the admissibility ruling appears in the reasons.

The status of the ruling is therefore limited but clear. It is a procedural decision on what evidence could be read on an interlocutory application. It does not finally determine the broader proceeding, and the Court expressly left open the question of what weight should be given to the admitted evidence.

This page is based on the published Federal Court reasons in The Epoch Holding Group Pty Ltd v Katz (Evidence Admissibility) [2024] FCA 1531. The reasons are short and focused on admissibility of affidavit evidence from a US attorney in an interlocutory hearing.

Because the published reasons are narrow, this page does not attempt to reconstruct the full factual background of the underlying dispute or make broader claims about the merits of any copyright allegations. Readers should treat it as a procedural case note about foreign-law evidence and interlocutory practice.