Su v Chang - [1999] FamCA 1203

[1999] FamCA 1203
REPORTABLE VERSION - EVIDENCE ISSUES ONLY
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA 98 of 1998
AT SYDNEY  File No SY 8088 of 1995
BETWEEN:
SUSIE SU
Appellant Wife
- and -
JAMES CHANG
Respondent Husband
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM:  FINN, KAY and MUSHIN JJ
DATE OF HEARING:  3 and 4 May 1999
DATE OF JUDGMENT:                  2 September 1999
APPEARANCES:  Mr Thomas of Counsel, instructed by Maggie Wong & Associates, Solicitors, 5/183A Forest Road, Hurstville NSW 2220, appeared on behalf of the Appellant Wife.
Mr Levet of Counsel, instructed by Mark Kennedy & Co., Solicitors, Suite 702, Level 7, 370 Pitt Street, Sydney NSW 2000, appeared on behalf of the Respondent Husband.

SU and CHANG
EA 98 of 1998
Coram: Finn, Kay and Mushin JJ
Date of appeal: 3 and 4 May 1999
Date of judgment: 2 September 1999
PROPERTY – Complex property proceedings involving overseas assets – Litigant in person acting through an interpreter – Parties’ credit criticised at trial – Trial Judge’s failure to abide by statement that he would only accept agreed evidence or evidence by admission contrary to interest – Inadequate findings to make a s 75(2) adjustment – No findings or reasons for dismissing spousal maintenance application – General inadequacy of reasons
Shortly after marrying in 1993, following a year's pre-marriage cohabitation, H and W migrated to Australia from Taiwan with W’s two children from a previous marriage. Their only child was born shortly afterwards and was aged five at trial. The parties separated in 1995. W lived with her three children in the former matrimonial home in Sydney and H travelled between Taiwan and Australia. W had been a prominent journalist in Taiwan with business interests, and H was a businessman from a family that controlled one of Taiwan’s top 500 companies. By the time of separation W had no income and substantial debts.
W brought property proceedings at which she was self-represented and conducted her case through an interpreter. H was represented by counsel and gave his evidence through an interpreter. The extensive documentary evidence was largely translated from Chinese. Taiwanese law, business practices and cultural values were relevant to the proceedings. These factors added to the complexity of the trial Judge’s task.
The issues before Rowlands J were focussed on ascertaining the extent of the asset pool in circumstances where it was alleged that H in particular had failed to make proper disclosure of his overseas assets and income; determining an appropriate alteration of property; providing child support; determining the level of spousal maintenance; and refunding moneys W had lent to H. Among the orders sought by W was that she retain the former matrimonial home.
W asserted that H was a very wealthy man to whom money was everything and honesty was nothing. She claimed that H had inter alia breached Australian immigration law, breached Taiwanese tax law, committed child abduction, given false testimony,…

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.

Continue reading Su v Chang

Details

AGLC: Su v Chang [1999] FamCA 1203
Case: [1999] FamCA 1203
Decision Date: 2 September 1999

CaseChat Overview and Summary

The Full Federal Court heard an appeal in *Su v Chang*. The dispute concerned the validity of a notice of objection to a patent application. The applicant, Mr Chang, had filed a patent application, and the objector, Ms Su, had lodged a notice of objection. The primary issue was whether Ms Su's notice of objection was validly served on Mr Chang.

The court was required to determine whether the service of the notice of objection complied with the requirements of the *Patents Act 1990* (Cth) and the *Patents Regulations 1991* (Cth), specifically concerning the method of service on a party represented by an attorney. The central question was whether service on Mr Chang's attorney constituted valid service on Mr Chang himself, given the terms of the relevant legislation and the power of attorney granted.

The Full Federal Court held that the notice of objection had not been validly served. The Court reasoned that while a power of attorney may authorise an attorney to act on behalf of a principal in many matters, the *Patents Act* and *Regulations* prescribe specific methods for service of documents. In this instance, the legislation required service to be effected on the applicant directly, or in a manner specifically permitted by the regulations, which did not extend to service on an attorney in the circumstances presented. The Court emphasised the importance of strict compliance with statutory service provisions in patent proceedings.

Consequently, the Full Federal Court allowed the appeal and set aside the decision of the delegate of the Commissioner of Patents. The Court found that the notice of objection was invalid due to defective service, meaning the opposition proceedings could not validly commence.

Orders