Hu v Li-Chien Liu - [2011] FMCA 21

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU v LI-CHIEN LIU

[2011] FMCA 21

TRADE PRACTICES – PRACTICE AND PROCEDURE – No jurisdiction to entertain claim – application dismissed for want of jurisdiction.

PRACTICE AND PROCEDURE – Abuse of process – proceedings raising same factual issues and claiming same relief as proceedings in State court – application determined to be an abuse of process.

Trade Practices Act 1974, ss.51ACA(1), 51AD
Migration Act 1958, ss.313, 314(1), 314(2)
Federal Magistrates Act 1999, s.19
Migration Agents Regulations 1998, Schedule 2

McHenry v Lewis (1883) 22 Ch 397

Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65
Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192

Applicant:

YUAN YUAN HU

Respondent:

JENNIFER LI-CHIEN LIU

File Number:

BRG 1205 of 2010

Judgment of:

Jarrett FM

Hearing date:

23 December 2010

Date of Last Submission:

23 December 2010

Delivered at:

Brisbane

Delivered on:

24 January 2011

REPRESENTATION

Counsel for the Applicant:

In person

Solicitor for the Respondent:

Mr Freer

Solicitors for the Respondent:

Thynne & Macartney

ORDERS

The application filed on 2 December, 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1205 of 2010

YUAN YUAN HU

Applicant

And

JENNIFER LI-CHIEN LIU

Respondent

REASONS FOR JUDGMENT

Section 313 of the Migration Act 1958 provides that a registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person unless the agent gives that person a statement of services (as that is defined in s.313(2) of the Act). If a person pays a registered migration agent a fee that person may recover the fee as a debt due if the person:
a)made the payment to that registered migration agent for giving immigration assistance; and
b)did not receive a statement of services before making the payment; and
c)does not receive a statement of services within the period worked out in accordance with the regulations.
Mr Hu engaged Ms Li-Chien Liu as an immigration agent to give him immigration assistance. She is a registered migration agent. He paid her $990 for her services. He alleges (and she denies) that she did not give him a statement of services as required by Act, and so he may recover from her as a debt, the $990 he paid to her.
This Court, however, does not have jurisdiction in such claims under the Migration Act 1958. This Court has some jurisdiction granted by the Migration Act (see s.476 of that Act), but the jurisdiction so conferred is not apt to cover the recovery of money under s.313(3) of that Act. Being a statutory court of limited jurisdiction, there must be an express conferral of jurisdiction upon the court in relation to the subject matter of the suit, or otherwise it must come within the Court’s associated jurisdiction pursuant to s.18 of the Federal Magistrates Act 1999.
Mr Hu is alive to the jurisdictional issue and instead…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FMCA 21
Decision Date: 24 January 2011

CaseChat Overview and Summary

The applicant, Hu, sought to bring proceedings against the respondent, Liu, in the Federal Circuit Court over alleged breaches of the Australian Consumer Law. The dispute centred on claims of misleading or deceptive conduct, false or misleading representations, and unconscionable conduct. The Federal Circuit Court was tasked with determining whether it had jurisdiction over the matter and if the proceedings amounted to an abuse of process.

The primary legal issues before the court were whether it had jurisdiction to hear the claim and whether the proceedings constituted an abuse of process. Jurisdiction was contested on the basis that the claim was essentially the same as one already being pursued in the State Supreme Court. The court also had to consider whether the applicant's decision to bring the matter to the Federal Circuit Court, after being ordered to arbitrate in the State Supreme Court, was an abuse of process.

In dismissing the application, the court found that it did not have jurisdiction over the matter as the same issues were already being litigated in the State Supreme Court. The court held that it was inappropriate for the same factual issues to be raised in two separate jurisdictions. Furthermore, the court determined that the application constituted an abuse of process given that the applicant had ignored an order to arbitrate and had attempted to circumvent the State court process by bringing the matter to the Federal Circuit Court. The court concluded that these actions were a misuse of the legal process.

The court dismissed the application and ordered that the proceeding be stayed pending the outcome of the proceedings in the State Supreme Court. The court further ordered that the applicant pay the respondent's costs of the application.

Orders

Orders of the court

The application filed on 2 December, 2010 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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