Yao v Zhang

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YAO v ZHANG & ANOR [2007] FMCA 1340

TRADE PRACTICES – Practice and procedure – transfer of proceedings to enable matter to be transferred to State inferior court – doubtful Trade Practices claim – inability to transfer directly to State Magistrates Court.

Trade Practices Act; ss 51A, 51AC, 52, 75B, 82, 87
Federal Magistrates Court Act 1999; s 39
Federal Magistrates Court Rules 2001; r 8

Stewart v Pegasus Investments and Holdings Pty Ltd (2004) FMCA 712
McIntosh v National Australia Bank (1988) 17 FCR 482

Applicant: LI SAN YAO

Respondent: SHUYING ZHANG AND YI SUO

File number: BRG 826 of 2005

Judgment of: WILSON FM

Hearing date: 24 July 2007

Date of last submission: 24 July 2007

Delivered at: Brisbane

Delivered on: 24 July 2007

REPRESENTATION

Counsel for the Applicant: Ms Zande

Solicitors for the Applicant: Chais Law Practice

Counsel for the Respondents: N/A

The Respondents in person: Shuying Zhang and Yi Suo

ORDERS

1. Pursuant to s.39(1) of the Federal Magistrates Act 1999, Federal Magistrates Court proceedings number 826 of 2005 be transferred to the Federal Court of Australia.

2. Costs are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 826 of 2005

LIN SAN YAO

Applicant

And

SHUYING ZHANG AND YI SUO

Respondent

REASONS FOR JUDGMENT

(Settled extempore)

1. By application filed 20 December 2005, the applicant sought relief against the respondents for “damages in the amount of $41,421.86”, together with interest and costs.  The cause or causes of action pursuant to which such damages were claimed were not specified. 

2. By amended application filed by leave on 5 September 2006, the applicant sought damages or compensation in the amount of $41,421.86 against the respondents pursuant to sections 51A, 51AC, 52, 75B, 82 and/or 87 of the Trade Practices Act (“the Act”).  Alternatively, compensation was sought against PYG International Pty Ltd pursuant to the Act.  The latter claim was not capable of being pursued.  PYG International Pty Ltd was not joined as a party to the action and, indeed, could not have been, because it was deregistered in 2002.

3. The claim against the first and second respondents for damages could potentially have either been pursuant to ss.82 or 87 of the Act for conduct contravening ss.51AC or 52 of the Act.  That conduct may have been conduct by PYG International Pty Ltd for which the named respondents could be made liable as accessories pursuant to s.75B of the Act.  No basis for liability of the respondents personally was identified.  None of the contravening conduct was said to have occurred over the telephone or by mail in Australia.

4. During the first day of the hearing, a number of difficulties with the applicant’s case emerged.  Difficulties have also arisen because the applicant is a Chinese national who neither speaks nor reads the English language.  His solicitor is bi-lingual, but evidence of the applicant was required to be given through an interpreter. 

5. Neither of the respondents is fluent in the English language, although the…