Huang v Abayawickrama
[2008] FMCA 1407
•22 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v ABAYAWICKRAMA & ANOR | [2008] FMCA 1407 |
| PRACTICE & PROCEDURE – Service of process on party in a foreign country – time for service. |
| Human Rights & Equal Opportunity Commission Act 1986, s.46PH Federal Magistrates Court Rules 2001, r.6.17 |
| Applicant: | HONG CUI HUANG |
| First Respondent: | CHAMINDA ABAYAWICKRAMA |
| Second Respondent: | UNIVERSITY OF NEW SOUTH WALES |
| File Number: | SYG 2920 of 2004 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 August 2008 |
| Date of Last Submission: | 18 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms J. Oakley |
| Solicitors for the Respondents: | University of New South Wales Legal Office |
ORDERS
The matters ordered to be determined separately be answered as follows:
(a)yes;
(b)the initiating application;
(c)no;
(d)(i) no;
(ii)yes.
The applicant have leave to file an application pursuant to Order 8 of the Federal Court Rules for leave to serve the initiating application on the first respondent in a foreign country.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2920 of 2004
| HONG CUI HUANG |
Applicant
And
| CHAMINDA ABAYAWICKRAMA |
First Respondent
| UNIVERSITY OF NEW SOUTH WALES |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 23 September 2004 the applicant commenced these proceedings by filing an application and supporting affidavit seeking orders under the Human Rights & Equal Opportunity Commission Act 1986 (“HREOC Act”). The application arose out of a complaint which the applicant had made to the Human Rights & Equal Opportunity Commission (“Commission”) against the respondents in these proceedings, amongst others, alleging sexual harassment. A delegate of the Commission’s president had terminated that complaint on 28 July 2003 pursuant to s.46PH(1)(i) of the HREOC Act.
This judgment deals with matters which on 20 June 2008 were ordered to be determined separately, namely:
(a)whether the first respondent has been served with any process in these proceedings;
(b)if the answer to (a) is affirmative, what was served;
(c)if the answer to (a) is affirmative was such service effective under the Rules of Court; and
(d) if the answer to (a) or (c) is negative should leave be granted to the applicant to:
(i) serve any process out of time and if so which; or
(ii)file a further application for service on the first respondent.
Background
Prior to commencing these proceedings, the applicant had commenced proceedings SYG1691/2003 in the Court (“original proceedings”). Both the first respondent, Mr Abayawickrama, and the second respondent, the University of New South Wales (“UNSW”), were respondents to the original proceedings. As considered further below, by virtue of orders made by Driver FM on 16 September 2004 and 5 June 2006 the claims made against Mr Abayawickrama were separated from the original proceedings and are now pursued in these proceedings. On 2 April 2006 Barnes FM concluded that UNSW be joined as a respondent in these proceedings.
At this point it is important to record that the first respondent no longer resides in Australia and appears to be living in Sri Lanka. He has not entered an appearance in these proceedings. Nor, it appears, had he entered an appearance in the original proceedings.
A copy of the orders made by the Court on 16 September 2004 in the original proceedings is annexed to the applicant’s affidavit filed on 25 March 2008. Amongst the orders made on that occasion was the following:
1.The applicant has leave and liberty within 21 days to file a fresh application, information sheet and supporting affidavit naming Mr Chaminda Abayawickrama as the respondent, in accordance with Order 8, rules 14.1 and 16.2 of the Federal Court Rules and a form 14B request in accordance with Order 8, rules 14.2 and 16.3, save that references to the Federal Court of Australia shall be altered to references to the Federal Magistrates Court of Australia.
…
On 11 February 2008 the original proceedings were dismissed by Driver FM.
In the applicant’s submissions filed on 28 July 2008 she quotes a portion of the transcript of a hearing before Driver FM on 14 March 2006 where his Honour said, amongst other things:
His Honour: All right. Now, when you get the certificate I will obviously need to see that and then I will need to give some directions about that case, and I will need to decide whether it can be heard in some way in tandem with these proceedings or not. I previously directed that it be severed. It may be possible to bring it back in conjunction with these proceedings to some extent, but not completely.
These facts satisfy me, notwithstanding the confusing presentation of affidavits and applications in these and the original proceeding, that the claim against Mr Abayawickrama was severed from the original proceedings and removed into these proceeding. I conclude that these are the only proceedings on foot involving the applicant and Mr Abayawickrama.
Service on the first respondent
As noted above at [1], these proceedings were commenced on 23 September 2004. As the first respondent was by then apparently residing in Sri Lanka, it was necessary for the applicant to take steps to ensure effective service on him in that country. On the day she commenced these proceedings the applicant filed a “Form 14B Federal Magistrates Court Request for transmission of notice to a foreign government”.
It is apparent from its wording that that document had originally been intended to be filed in the original proceedings. Nevertheless, it was filed in these proceedings and contained the following request:
The Federal Magistrates Court of Australia requests the Secretary of the Attorney-General’s Department to transmit to the government of Sri Lanka the following documents:
1. Hong Cui Huang’s application from SZ1691 of 2003,
2. information sheet,
3. supporting affidavit, and
4.Notice of Termination by the Human Rights and Equal Opportunity Commission with requests that:
(a)the documents be served personally on the fourth respondent, Chaminda Abayawickrama or Chaminda Pathmalal Abayawickrama*, at [address given], SRI LANKA, or elsewhere in Sri Lanka against whom the proceeding SZ1691 of 2003 has been taken in the Federal Magistrate Court of Australia; and
(b)evidence of service of documents be officially certified or declared (on oath or otherwise) to this Court in such manner as is consistent with usage or practice of the courts in Sri Lanka in proving service of legal process.
That request was signed by a Registrar of the Court on 27 September 2004.
The orders made by the Court on 16 September 2004 suggested that the applicant was to file fresh proceedings and yet they did not explicitly say so or deal with the future conduct of the original proceedings as far as they related to Mr Abayawickrama. They did not make it clear whether Mr Abayawickrama should remain party to those proceedings although I have concluded that that was not the intention. The unfortunate position which resulted is that while these proceedings were commenced as fresh proceedings, and the applicant appears to have attempted service of the application which commenced these proceedings, the Form 14B request did not refer to these new proceedings but referred instead to the original proceedings.
What was served
On 5 June 2006 Driver FM ordered the applicant to file and serve evidence of proof of service upon the first respondent “in accordance with the rules of the Federal Court in relation to service outside jurisdiction”.
In her affidavit sworn 14 August 2006 the applicant deposed to matters relevant to the original proceedings. She said:
a)at some point after 19 September 2003 she served the application in the original proceedings, information sheets, supporting affidavit and the HREOC Notice of Termination at the first respondent’s last known postal address, namely, the School of Safety Science at the University of New South Wales;
b)in about May 2004 she accidentally found the first respondent’s postal address in Sri Lanka;
c)on 8 June 2004 she served the first respondent with documents in the original proceedings “by air mail and registered post” to his address in Sri Lanka;
d)on 28 June 2004 she emailed the first respondent to draw his attention to the documents she had posted on 8 June 2004 advising him he was to respond to the Court within 14 days. She did the same on 30 June 2004;
e)on 1 July 2004 she emailed the first respondent again advising of a subpoena return date and the next date for directions. Further emails were sent by the applicant to the first respondent on 1 July 2004, 15 July 2004, 3 August 2004 and 18 August 2004;
f)on 13 July 2004 she served the first respondent with further documents in the original proceedings “by air mail and registered post” at his address in Sri Lanka “and on 19 July 2004 he signed for receiving the documents” which were a letter and a copy of the orders of this Court made on 12 July 2004; and
g)on 3 August 2004 she served the first respondent with a further letter, an application for substituted service and a supporting affidavit and a further copy of the orders made on 12 July 2004 “by air mail and registered post” to his address in Sri Lanka.
On 14 August 2006 the applicant filed an affidavit of service concerning her attempts to serve the first respondent not only in respect of the original proceedings but also in relation to these proceedings. An affidavit of service translated from the Sri Lankan was annexed to the applicant’s affidavit of service filed on 14 August 2006. The original affidavit of service from Sri Lanka is annexed to the applicant’s affidavit filed on 28 July 2008. This affidavit records the outcome of the Form 14B request referred to at [9] – [11] above.
I conclude from those documents, although not as explicatory as they might have been, that the application commencing these proceedings was amongst the documents served on the first respondent. However, it was not the application referred to in the Form 14B request. Had the applicant been represented, it is unlikely that the Form 14B request would have referred to the original proceedings as it did.
The application’s failure to accord with the document description contained in paragraph 1 of the Form 14B request may have led Mr Abayawickrama to conclude that service had been ineffective. This may be this reason why he has not entered an appearance.
Time for service
In any event, it should be observed that by the time the application was served on Mr Abayawickrama on 2 January 2006, it was stale. Rule 6.17 of the Federal Magistrates Court Rules 2001 provides:
6.17 General time limit
Unless the Court otherwise orders, a document may not be served more than 12 months after it is filed.
Although the Court does have power to extend the life of an application for the purposes of service, given the failure of the document to accord with its description contained in the Form 14B request, this would be an inappropriate course to take. In reaching this conclusion, I acknowledge that the delay in service was not caused by the applicant but by slowness in the official service process.
Conclusion
As a result of these matters considered above, I conclude that service on Mr Abayawickrama has not been effective. Nevertheless, it is reasonably apparent that he has been made aware of the proceedings. In such circumstances, leave will be granted to the applicant to file a further application for leave to serve Mr Abayawickrama overseas.
Consequently, the matters ordered to be determined separately will be answered as follows:
a)yes;
b)the initiating application;
c)no;
d)(i) no;
(ii) yes.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 October 2008
2
0
2