Gao v Zhu

[2003] HCATrans 574

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M49 of 2002

B e t w e e n -

PENG YUAN GAO

Applicant

and

YU JING ZHU

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 2003, AT 12.40 PM

Copyright in the High Court of Australia

MR P.Y. GAO appeared in person.

HAYNE J:   As I understand it, the respondent, Yu Jing Zhu, has not entered appearance in the matter.  It is as well though, I think, that Yu Jing Zhu is called.

THE COURT OFFICER:   No appearance, your Honours.

HAYNE J:   Yes, thank you.  Now, Mr Gao, you have 20 minutes.  Perhaps if you would ‑ ‑ ‑

MR GAO:   Your Honours, this application got four order.

HAYNE J:   Yes?

MR GAO:   Maybe - I do not know which way.

HAYNE J:   Twenty minutes is the time allowed, Mr Gao.  You have 20 minutes.

MR GAO:   Your Honours, if you reading the notice of appeal from Court of Appeal, page 88, paragraph 2 in the middle lines, between start of line 10 to 15:

For the applicant to succeed, he must establish that the decisions in question are attended with sufficient doubt and that substantial injustice will occur unless they are set aside.

The next one was paragraph 7, page 90, I believe from line 10…..about a motor vehicle had…..by respondent, I did not claim defendant held the money, first paragraph.

The next paragraph is on pages 96 to 97, paragraph 26.  It says, I think mostly this paragraph…..in the top of paragraph 7.  Page 97, judge he say:

he has to establish that the respondent is dissipating specific assets for the purpose of avoiding meeting the judgment.

The next one was pages 98 to 99, paragraph 30 of the reasons for judgment.  This paragraph I draw your attention is on the top of 99.  I…..you look at last sentence:

Clearly this complaint does not demonstrate error ‑

I am sorry, not this one, not this sentence.  Your Honours, what is from end of 98 on to top of 99:

He claimed that she knew she had no defence to his claim and that she was sought to hide her assets from him and/or move them out of the jurisdiction in order to avoid paying what is due to him.

Because I got a judgment.  This…..paragraph which mean if you refer to paragraph 2, first paragraph in the middle, judge, he is say I did not make out my case, but I draw just to your attention that if you come back to page 26 to page 27, page 26 paragraph 4, I mention you that:

The plaintiff would be successful –

Actually during the time I move appeal, defendant is already withdraw her application for setting aside judgment because that is happened on 26 February.  The appeal was heard 5 April.  This document was made before or after, I think some time in January. 

In the next paragraph I say I would be successful, but I made subparagraphs a, b, c, d, e until f on page 27.  After that on page 27, I would mention that:

With respect to the order made on 12^th December 2001, the plaintiff would not have any judgment to satisfy by reason of the defendant transferring and removing her assets from the jurisdiction, and disposing them within the jurisdiction –

and here I would mention that I…..this is all together I already made out my case because defendant is transferred assets now, I suffered damages, I could not get any judgment in the future, for example, $10,000, $100,000.  Now defendant got no money now.

All judgment, I got a few judgment, got a few orders, I believe all orders Justices here should dealing with ‑ your Honours, I am sorry, page 26 and page 27 and also page 78.  Page 78, paragraph 4, your Honour, subparagraph a, also is another…..about order made by Justice Habersberger.  This paragraph I have also mentioned that:

a.  In whatsoever situation of the proceeding, the defendant is liable to pay damages to the plaintiff, and must be ordered to pay reasonable fund to the Court as soon as possible, due to the plaintiff would not have any judgement to satisfy by reason of the defendant removing or disposing her assets from or within the jurisdiction of the Court.

Pages 26 and 27, and page 78 is put together, this I made affidavit that before Court of Appeal and I…..about this case I would have…..transfer and since I suffered damages, I wish…..

Okay, your Honours, about 94, $30,000 deposit I put…..in the book and I make delivery yesterday.  The 94 deposit I had a subpoena, I ask the ANZ Bank to produce all evidence about it and the bank not produce it.

HAYNE J:   Now, Mr Gao, your action in the Supreme Court still exists, does it not?

MR GAO:   Yes, your Honours…..

HAYNE J:   You have not had a trial of that action; you have not had a full hearing of that action yet?

MR GAO:   No, no, your Honour.  Your Honours , because in 20 minutes ‑ ‑ ‑

HAYNE J:   Just a moment.  You can still keep going with your action in the Supreme Court, can you not?

MR GAO:   Yes, your Honour.

HAYNE J:   Why should this Court take your case on before it is completely finished?

MR GAO:   Your Honours, now so far, your Honours, did you see the ANZ produce document for term deposit?

HAYNE J:   Yes, we have seen that.

MR GAO:   You see it, because there is more than $30,000 after the injunction order made.  That is evidence that was already before the Court of Appeal, but they ignore it.

HAYNE J:   Yes.

MR GAO:   Because actually the…..about a car has been transferred and the money cashed with the transfer actually is later than judgment delivered.  But that is evidence before Court of Appeal because that is evidence that come in 7 March.  Court of Appeal heard it is 4 April because the Court of Appeal refuse to make this order.  Your Honours, could I mention about the perjury offence?

HAYNE J:   Yes.

MR GAO:   Okay, perjury offence, as the Court of Appeal asked me, I have section 314 CrimesAct 1958. I got the Crimes Act and nothing stopped me or stopped court from dealing with perjury offence.  Here…..as what I say in the application.  I do not know why dismissed it.  You may dismiss some, but a perjury offence is no one allowed to give false answers to…..proceedings because is material proceedings.  Also perjury offence of give false evidence now is cause judge make order under false testimony given to the court for judgment may be set aside because judge is believe if the testimony is…..they may have a good defence, actually now…..the defence.

Your Honours, about the perjury offence, if you were draw your attention you reading the paragraph - page 5, in the middle, paragraph 14, about $70,000 from line 16:

But that he later requested her to return $70,000 to him, which she did, and the other $70,000 was obtained by him, she said.

That is the defendant…..justice and the defendant has filed another affidavit to the court, this is 9 August.  In this affidavit – but I am sorry, your Honours, I did not produce it before the Court – in this affidavit about the $70,000, is different.  Do your Honours want me to read?

HAYNE J:   Mr Gao, this Court rarely intervenes; it rarely takes cases which have not finished.  This Court does not sit to decide cases for the first time.  We take cases after the appeal process has finished if some important point has to be decided.

MR GAO:   Your Honours, did you mean that I should have finished or concluded the proceedings, then appeal?

HAYNE J:   If the proceeding is finished in the Supreme Court, it will then, if somebody does not like the answer, go to the Court of Appeal.  If there is a point of importance, application can be made to come here.  But we rarely intervene; we rarely take a case before it has finished.

MR GAO:   Your Honours…..now is the defendant transferred cash and money is out of the jurisdiction but a ‑ ‑ ‑

HAYNE J:   I understand those complaints.

MR GAO:   But if that is the case, it would take another two years finish, was why I complained to the High Court and say the Supreme Court has not made order, is time High Court me say “Such long time you coming to apply, we cannot accept this new application”, or is it at time later two years or coming here after you say the defendant has no money now.  What you want me to do?  Your Honours, I do not know, do you think this ‑ ‑ ‑

HAYNE J:   Mr Gao, is there anything more you want to say in support of your application of your asking us to take the appeal?

MR GAO:   Your Honours, about the property, I have a document from agent to the trustee about the property evaluation worth $250,000 about.  Do you want to see it, your Honours?

HAYNE J:   I do not see how it helps your application, Mr Gao.  Is there anything else you would wish to tell us about why we should take your case?

MR GAO:   Your Honours, now important that I already ask if the money has been transferred and the car had been sold, defendant has no order to pay the damages and because I had a judgment.  Now, the judgment, I cannot be satisfied by any judgment given now. So…..can make an order for defendant repay the money for after injunction order made it because he breach the order.  Now court refuse to make order.  My concern is that if this order, after proceedings finished, maybe one year, maybe I do not know how long, if finished at the time I come in…..for appealing, what is time - I just…..

HAYNE J:   Yes, I understand that and any application you make later will be decided on its merits, but ‑ ‑ ‑

MR GAO:   Yes, maybe you see if too late, I do not know, because that…..I put in April last year, but now…..If you say “You can make an application later”, probably okay.  If it not, you may say, “Defendant has but no money, we cannot make order”, because he transfer the money to another, it has been found. Your Honours, I would suggest that I…..for order for Court to dealing with the offence for perjury.

HAYNE J:   We are not going to embark on that, Mr Gao.  Your application is for leave to appeal against the orders of the Court of Appeal.  Is there anything else you wish to say in support of that application?

MR GAO:   Your Honours, I got another problem with a subpoena.

HAYNE J:   Yes, we are not dealing with subpoenas at the moment, Mr Gao.  Is there anything else you want to say in support of the application for leave?

MR GAO:   Okay, it now concludes the argument, your Honour.

HAYNE J:   Yes, thank you very much.

In August 1999 the applicant began a proceeding in the Supreme Court of Victoria.  That action has not been concluded.  He seeks to challenge some interlocutory orders made in the action.  The Court of Appeal of Victoria refused him leave to appeal to that court.  He now seeks special leave to appeal to the High Court of Australia.  The decision of the Court of Appeal is not attended by doubt.  Special leave is therefore refused.

Adjourn the Court.

AT 1.00 PM THE MATTER WAS CONCLUDED