Tsang Chi Ming v Uvanna Pty Ltd (t/as North West Immigration Services)

[1996] FCA 860

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 505 of 1994
  )
GENERAL DIVISION                  )

BETWEEN:TSANG CHI MING

KUANG OU ZHI

FENG MIN

SHEN GU HAI

YE XIAO DONG

WEN MING WANG

XU SHI FANG

WEI QUO QING

ZHANG LIN XING

ZHANG WEI QING

YANG BI HUI

LIANG YAO HAN

IP SHING OP

XIE XIAO JIA

WEI SHU QIAN

LIN QIANG

CHU LAI WAH

GU WEI KANG

HUANG SHU JUN

Applicants

AND:UVANNA PTY LTD (T/A NORTH WEST IMMIGRATION SERVICES)

First Respondent

LESLIE WILLIAM ALEXANDER

Second Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    3 JULY 1996

REASONS FOR JUDGMENT

On this the first day in which the present proceedings were scheduled to commence, an application was made by the first and second respondents that the hearing which had been set down for fourteen days be adjourned.

The proceeding, NG505 of 1994, commenced on 5 August 1994 as an application purporting to be brought by the applicants, Tsang Chi Ming and Kuang Ou Zhi, as representative parties on their own behalf and on behalf of other interested persons identified essentially as being persons who had entered into certain contracts with the first respondent between early 1992 and 1994.

The applications originally filed sought relief based upon, inter alia, ss51AB, 52, 74(1) and 74(2) of the Trade Practices Act 1974; the Fair Trading Act 1987 (NSW); breach of fiduciary duty; the Contracts Review Act 1980 (NSW); fraud; and negligence. A related proceeding, NG659 of 1994 was brought by Huang Shu Jun as applicant against the same two respondents but not as a representative proceeding.

The matter has had a sorry history in that some two years seem to have gone by before the time for hearing arose.  I do not seek to apportion blame in any way for the leisurely approach which seems to have been taken to having the matter ready for trial.  However, some of the delay could be attributed to the applicants having commenced the proceedings NG505 of 1994 as a representative proceedings when clearly, having regard to the matters raised in them, that was not an appropriate course, as indeed orders subsequently made by Lockhart J demonstrate.

What is now left of the proceedings, as I understand it, are really 18 separate applications by individual litigants against the respondents, in which it is claimed that each of these litigants employed the respondents to obtain for them appropriate residency status in Australia, and that representations were made in the course of the engagement which were false and misleading.  In the result, in essence, what is claimed by way of damages or otherwise, is the repayment by the respondents to the applicants of the amounts paid for services which vary upwards from $18,000.

Although the case is put in various ways, in documents referred to "Case Statements", in respect of some at least, of the applicants, in essence the issues between the parties are really quite simple.  They concern what was said and done in conversations and meetings between the applicants, on the one hand, and the second respondent, on the other, as an officer of the first respondent, n circumstances in which it is alleged that the applicants individually engaged the first respondent to act as migration agent in connection with an application or applications to the Department of Immigration and Ethnic Affairs.

In each of the cases, as I understand it, the applications proved unsuccessful, and it is that lack of success, inter alia, which has given rise to the proceedings.  Most of the evidence has been filed for a considerable time,
indeed more than twelve months ago as I understand it.  That evidence largely relates to the conversations said to have occurred between the applicants and representatives of the first respondent including Mr Alexander.  However, additional evidence has more recently been filed by the applicants going to the question of what occurred in the conversations.  That evidence was filed prior to 7 June 1996.

The date of 7 June 1996 is of significance because on that day an application was made to Lockhart J for leave to use material which had been filed out of time and contrary to orders his Honour had made.  Those orders required that material filed after a certain date not be used in evidence without leave.  On that day his Honour did give leave for this material to be adduced in evidence.

There is, however, other evidence from another immigration agent and from an officer of the Department of Immigration and Ethnic Affairs.  In part at least that evidence was filed in May 1996.  I have perused the affidavits in question because in part the application for adjournment was based upon the need on the part of the respondents to file evidence in reply to what was said to be this expert evidence.  On a perusal of it, it is, with the exception of about four paragraphs which I have identified in the course of argument, totally inadmissible because the evidence does no more than seek to inform me as to the law.  Interesting though the views
of these experts may be on the law, ultimately I will have to decide that matter for myself.  The only other paragraphs concern the question of fees payable to the Department for processing applications and procedures adopted by the Department, which hardly seemed to require much in the way of instructions to answer, if indeed they are at all controversial.

The application for adjournment is based upon two separate heads.  The first may, I suppose, be summarised as concerning prejudice to the respondent said to flow from defaults on the part of the applicant in filing various material.  The defaults fall into various categories.  First, there are defaults in filing affidavits evidence on time;  secondly, there are defaults in filing statements of issues and contentions as ordered by Lockhart J; thirdly, there are defaults said to have taken place in discovery; and finally there are defaults in complying with subpoenas.  As far as affidavit evidence is concerned, all of the evidence upon which the applicants propose to rely has been in the possession of the respondents since 7 June, that is to say, for approximately a month.

The statement of facts, issues and contentions was originally ordered to be served by 13 March 1996.  Statements, whether headed "Draft" or otherwise, said to be of the issues and contentions at least in respect of six matters, have been,
in one way or the other, in a form at least known by the applicants since 17 May 1996.

As far as discovery is concerned, no direct order was ever made for discovery, nor has any motion ever been filed, as far as I can see, before any judge having the pre-trial conduct of the matter, for discovery.  It is true that there has been some failure to produce material on subpoena.  I am told that at least since 20 June in five matters all material available for production has been produced.  In one of the matters there has been some difficulty apparently because one of the applicants is not an Australian.  There has not been material produced in respect of all matters, even to date, and that is a matter of some comment.

However, one is left with a situation where the only issue between the parties is what was said and done in a conversation, and where the material dealing with the issue has been in the hands of the parties for at least a month.  Further, the matter was especially fixed initially for two weeks commencing 24 June, but was then later moved at the convenience of the Court to commence one week later.  It is therefore difficult to see that there is any relevant prejudice to the respondents.

I should say that it is self-evident when determining whether to grant an adjournment it is necessary for me to consider the prejudice to each party of either the adjournment being granted or refused, as well as the public interest in court proceedings being heard in the time allotted to them, and the overall general question of where the justice in the particular case lies.

There is an obvious prejudice to the applicants if at least some of the cases do not proceed.  For my part, I do not see it necessary that all 18 cases be heard at the same time.  It would be convenient, no doubt, if they could be, but the issues generally are pretty much the same in each case; although what was said in the particular conversation will obviously be capable of differing from applicant to applicant.  If not all cases are ready for hearing there is no reason why some of them might not proceed.  Indeed, it may be an efficient way of dealing with the matter if some of them do proceed, because the parties might then consider their positions and the matter might then perhaps be one where mediation could bring the parties closer together in respect of other matters not yet litigated.

The second ground upon which an application for adjournment was made related to legal aid.  It seems that the respondents sought legal aid in respect of the matter initially by an application dated 29 August 1994.  That
application was rejected and it appears that the ground of objection was largely that it was policy that legal aid not be granted for disputes arising from commercial transactions.  An appeal was lodged from that refusal and the appeal, it seems, failed.

Later, as I have already indicated, the nature of the proceedings changed somewhat from being a representative action on the one part, to being, in substance if not quite in form, 18 separate actions brought by each of the named applicants.  This precipitated the respondents seeking to have the legal aid, which apparently the applicants had obtained, being revoked and there is correspondence dealing with that matter commencing with a letter dated 19 December 1995.  So far as that correspondence reveals, the respondents have been unsuccessful in having the commission revoke legal aid to the applicants.

Six months later, and indeed when the matter was almost due for hearing, by a letter dated 6 June 1996 the respondents made a fresh application for legal aid.  That application was refused and by letter dated 25 June the respondents requested the Legal Aid Review Committee to review the determination.  Not surprisingly, there has not been a response yet to that letter.  The respondents submit that I should adjourn the proceedings to allow that review to take place, notwithstanding the fact that an original appeal had
been unsuccessful and that the fresh application for legal aid had been made on recently after the matter had been in the Court's jurisdiction for almost two years.

In support of this submission counsel pointed to the fact that around 1977 arrangements were reached between the Commonwealth and the State for persons theretofore involved in commonwealth legal aid to be transferred to state legal aid offices and for funds to be injected by the Commonwealth Government.  It was said that there was a Commonwealth/State scheme to the extent that the Commonwealth Government finances state legal aid.  That is undoubtedly so.

In 1979 the present State Act was enacted.  It contains (in s57) a mandatory requirement that courts should adjourn once applications for legal aid have been made, pending those applications being determined.  Counsel properly did not submit that s57 should be construed so that the word "court" in that section should be taken to mean the Federal Court as against a state court or include the Federal Court as well as a state court.  A real question of constitutional power would arise should the State Government endeavour to legislate for the conduct of proceedings by a Federal Court.  It was said, however, that the section could be called in aid as demonstrating that it is a significant factor in considering an application for adjournment, that an application for legal aid has been made and this submission is
undoubtedly right; cf Bourke v Beneficial Finance Corporation Limited (1993) 47 FCR 264 at 282-3.

It is a matter which must be given the most urgent and serious consideration that an applicant before this Court has applied for legal aid in circumstances where that application has not yet been processed, or indeed if there would be an appeal where that appeal has not yet been heard.  It is commonplace in this Court for matters to be adjourned to allow legal aid applications to proceed.  It is not suggested, as I understand it, that it was in any way compulsory for the Court to do this.  Obviously it is one of the factors that one would consider, albeit a significant one.  The exceptions to s57 must also be borne in mind.

The application for legal aid is of course a matter which I take into account, but it must be weighed against the other matters that are present in this present case, particularly the delay of the respondent in making the application for legal aid, even if the proceedings are to be considered as commencing in December of last year when the proceedings changed their character from representative proceedings to individual proceedings.  For my part I can see  no relevance in the fact that, contrary to representations made by the respondents, the applicants have managed to get legal aid on their part.

Having carefully considered the submissions put by the applicants for an adjournment, and the possibility of detriment to the applicants if after two years the matter is now adjourned in circumstances where the court's list is such that no new date could be given until next year and the public interest involved in that, it seems to me that it is in the interests of justice overall that an adjournment not be granted in respect of the entirety of the 18 proceedings.

However, it seems to me that at least in those proceedings which are ready for hearing, and in respect of which the respondents have had material for a considerable time, there is no reason why those five should not proceed.  Indeed, as I have already suggested, I think there are advantages to the parties, in any event, in not having the whole 18 cases proceed to hearing, but at least to hear some select number of them.

I am a little uneasy about the fact that the selection has been made by the applicants who may perhaps have picked the cases which best suit their cause.  I do not know and I do not suggest that that is the case, but there is a possibility.  For that reason I would be prepared to listen to any submission on the part of the respondents that one or more of those cases not proceed, and indeed if the respondents are ready to hear some other case, that some other case or cases
nominated by the respondents proceed in place of at least some of those nominated by the applicants.

Counsel for the respondents has indicated that his instructions are quite limited and that he would be unable to indicate at the moment to the Court when, if at any time, his clients would be ready to proceed and with which cases.  That is a somewhat unsatisfactory course and although I am prepared to agree to an adjournment of a short period to enable counsel to be properly briefed in respect of some small number of cases, be it three, five or whatever number it may turn out to be, I am not prepared to vacate the entire time that has been allocated to this case.

In the circumstances, and subject to any submission that may be made by counsel of either side, I would propose to adjourn the proceedings now until 2.15pm tomorrow (Thursday, 4 July 1996) with the view that the hearing itself recommence at 10.15am on Friday, 5 July 1996.  The reason for adjourning the matter until 2.15pm tomorrow is to resolve which cases will be heard and perhaps to have counsel for the applicants open in respect of those cases so that the applicants' case is clear from the outset both to the Court and to the respondents.

That means essentially that the respondents will need to be in a position to know which cases they wish to proceed with, by no later than 2.15pm tomorrow.  They should, of course, convey to the applicants as soon as possible before 2.15pm tomorrow, their response to that matter.

I certify that this and the
preceding twelve (12) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date: 

Counsel and Solicitors      J Basten QC and S C Churches

for Applicants:             instructed by the Public Interest Advocacy Centre

Counsel and Solicitors      S Burchett instructed by Andrews

for Respondents:            

Date of Hearing:            3 July 1996

Date Judgment Delivered:         3 July 1996