Wu v Avin Operations Pty Ltd (No 3)

Case [2006] FCA 1321


FEDERAL COURT OF AUSTRALIA

Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321

PRACTICE AND PROCEDURE - security for costs – exercise of discretion – no order for security – cross-examination of applicant not permitted

Federal Court of Australia Act 1976 (Cth), s 56(1)

Federal Court Rules (Cth), O 28 r 3

Wu v Avin Operations Pty Ltd [2006] FCA 36 referred to
Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792 referred to
Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 cited
Friends of Hinchinbrook Society Inc v Minister for Environment (No 1) (1996) 69 FCR 1 cited
CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270 cited
PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321 cited
R v Barnet London Borough Council, Ex parte Shah [1983] 2 AC 309 referred to
Mohamed v Hammersmith and Fulham London Borough Council [2002] 1 AC 547 referred to
Logue v Hansen Technologies Ltd (2003) FCR 125 referred to
Bryan E Fencott and Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 cited
Soh v Commonwealth [2006] FCA 575 cited

JUN XUE WU v AVIN OPERATIONS PTY LTD (ACN 076 956 913), BARRY ARMITAGE, CHRISTOPHER JAMES ARMITAGE, JOAN DOROTHY ARMITAGE AND ASIA PACIFIC COATING PTY LTD
VID 372 OF 2003

KENNY J
9 OCTOBER 2006
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 372 OF 2003

BETWEEN:

JUN XUE WU
Applicant

AND:

AVIN OPERATIONS PTY LTD (ACN 076 956 913)
First Respondent

BARRY ARMITAGE
Second Respondent

CHRISTOPHER JAMES ARMITAGE
Third Respondent

JOAN DOROTHY ARMITAGE
Fourth Respondent

ASIA PACIFIC COATING PTY LTD
Fifth Respondent

JUDGE:

KENNY J

DATE OF ORDER:

9 OCTOBER 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The second and third respondents’ motion, notice of which is dated 15 August 2006, be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 372 OF 2003

BETWEEN:

JUN XUE WU
Applicant

AND:

AVIN OPERATIONS PTY LTD (ACN 076 956 913)
First Respondent

BARRY ARMITAGE
Second Respondent

CHRISTOPHER JAMES ARMITAGE
Third Respondent

JOAN DOROTHY ARMITAGE
Fourth Respondent

ASIA PACIFIC COATING PTY LTD
Fifth Respondent

JUDGE:

KENNY J

DATE:

9 OCTOBER 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

  1. This proceeding commenced on 9 May 2003, with the filing by Ms Wu (referred to hereafter as the applicant) of an application and statement of claim.  The history of the proceeding can be ascertained by reference to Wu v Avin Operations Pty Ltd [2006] FCA 36 and Wu v Avin Operations Pty Ltd (No 2) [2006] FCA 792.

    MOTION FOR SECURITY FOR COSTS

  2. By way of motion, notice of which was filed on 15 August 2006, Mr Barry Armitage and Mr Christopher Armitage (referred to hereafter as the second and third respondents) seek an order for security for costs from the…

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Details
AGLC
Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321
Case
[2006] FCA 1321
Decision Date

CaseChat Overview and Summary

In the case of Wu v Avin Operations Pty Ltd (No 3), the applicant has responded to allegations of misconduct from the second respondent. The court's primary task was to determine whether the applicant had adequately answered the allegations made against her, particularly regarding her use of different names in various contexts. The court found that although the applicant's use of different names might warrant an amendment to the proceeding's title, it was not grounds for drawing an adverse inference against her.

The legal issues in this case centred around the applicant's response to the allegations of misconduct and the appropriateness of her name usage in the proceeding. The court needed to assess whether the applicant's answers were sufficient and if the use of different names constituted a material misdescription. Additionally, the court considered whether the respondents' motion for security for costs should be granted.

The court concluded that the applicant had sufficiently addressed the allegations of misconduct. It rejected the claim that the applicant had materially misdescribed herself by using different names, and it found no grounds for drawing an adverse inference against her on this basis. The court ultimately decided to refuse the respondents' motion seeking security for costs, as the applicant had adequately answered the allegations against her. The court also noted that it would hear the parties on the question of costs.

ORDERS:
1. The second and third respondents' motion, notice of which is dated 15 August 2006, be refused.

Orders

Orders of the court

1. The second and third respondents’ motion, notice of which is dated 15 August 2006, be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KENNY J
The second respondent has alleged various forms of misconduct against the applicant, which, for present purposes, she has sufficiently answered. In particular, I reject the second respondent’s claim that the applicant has materially misdescribed herself by using the name “Jun Xue Wu” in instituting the proceeding, whereas at other times she is called “Xue Jun Wu”, although it may be appropriate for her to amend her name in the title to the proceeding. I would not draw an adverse inference against her on this account. CONCLUSION AND ORDERS In all the circumstances, I would refuse the respondents’ motion seeking security for costs. I would order that the motion, notice of which was filed by the second and third respondents on 15 August 2006, be refused. I shall hear the parties on the question of costs.

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

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