Huang v University of NSW

[2010] FMCA 475

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUANG v UNIVERSITY OF NSW & ANOR [2010] FMCA 475

PRACTICE & PROCEDURE – Federal Magistrates Court not empowered to issue letters of request addressed to foreign powers.

Foreign Evidence Act 1994, s.9A

Applicant: HONG CUI HUANG

First Respondent: UNIVERSITY OF NEW SOUTH WALES

Second Respondent: FUCHUN XIAO

File Number: SYG 577 of 2008

Judgment of: Cameron FM

Hearing dates: 25 January, 5 February 2010

Date of Last Submission: 5 February 2010

Delivered at: Sydney

Delivered on: 5 February 2010

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: University of New South Wales Legal Office

The Second Respondent appeared in person

ORDERS

1. The applicant’s application in a case filed on 15 January 2010 be refused.

2. The applicant’s application in a case filed on 2 February 2010 be refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 577 of 2008

HONG CUI HUANG

Applicant

And

UNIVERSITY OF NEW SOUTH WALES

First Respondent

FUCHUN XIAO

Second Respondent

REASONS FOR JUDGMENT

1. In her application in a case of 2 February 2010, which the applicant has told the Court is to be taken in substitution for the application in a case filed on 15 January 2010, the applicant seeks three orders. The first is for a letter of request to be directed to the Republic of Korea to assist in the taking of evidence by video-link from Professor Daljae Park of the Department of Safety Engineering at the Seoul National University of Technology.

2. The letter of request which the applicant seeks is the kind of process governed by the Foreign Evidence Act 1994. Letters of request to foreign powers may be issued by the Federal Court as described in div.1 of that Act. However, this Court does not have such a power. Section 9A(2) relevantly provides:

   Matters other than child support or family law matters

   (2) The Federal Court of Australia may, on the application of a party to a proceeding before the Federal Magistrates Court in a matter other than a child support or family law matter, exercise the same power to make an order of the kind referred to in Division 1 as the Federal Court of Australia has under that Division for the purpose of a proceeding in the Federal Court of Australia.

3. The fact is that this Court has no power to issue letters of request to foreign governments; if a party in proceedings such as these in this Court wishes to obtain a letter of request it is necessary that they make application to the Federal Court. Because this Court is not competent to grant the relief sought in para.(a) of the application in a case of 2 February 2010, that aspect of the application will be dismissed. Because the first order sought in that application cannot be granted, the second and third orders sought in that application which depend upon it must also be refused.

4. The applicant also seeks leave to serve a subpoena on Professor Park out of the jurisdiction and to that extent the application of 15 January 2010 is still pressed. The applicant’s application that this Court issue a subpoena and that a request be made that it be served overseas on Professor Park will not be granted on this occasion. Until a letter of request is issued by the Federal Court to the Republic of Korea, there is no point in this Court requesting the Attorney General’s department to cause a subpoena addressed to Professor Park to be sent to Korea for service. In particular, that subpoena would have to identify the place where Professor Park should attend to give evidence and the time when he should attend to give evidence. In the absence of any arrangements for the giving of his evidence, such as the arrangement of a room and electronic equipment for the video-link which would be necessary, the subpoena would be incomplete and could not issue.

5. Consequently, until the Federal Court grants such letter of request as the applicant might seek from it and the government of the Republic of Korea makes arrangements for Professor Park to give evidence, then no properly drawn subpoena addressed to Professor Park can issue out of this Court with a view to it being served in South Korea. So, the applicant’s application in a case filed on 15 January 2010 will be refused.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date:  12 July 2010