Yao v Zhang - [2007] FCA 1405

FEDERAL COURT OF AUSTRALIA
Yao v Zhang [2007] FCA 1405
LI SAN YAO v SHUYING ZHANG AND YI SUO
QUD254 OF 2007
COLLIER J
4 SEPTEMBER 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD254 OF 2007

BETWEEN:

LI SAN YAO
Applicant

AND:

SHUYING ZHANG
First Respondent

YI SUO
Second Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

4 SEPTEMBER 2007

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.Pursuant to section 5(4) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Federal Court proceedings number QUD254/2007 be transferred to the Supreme Court of Queensland.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD254 OF 2007

BETWEEN:

LI SAN YAO
Applicant

AND:

SHUYING ZHANG
First Respondent

YI SUO
Second Respondent

JUDGE:

COLLIER J

DATE:

4 SEPTEMBER 2007

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is a matter which was transferred to this Court by Wilson FM, pursuant to his judgment on 24 July 2007 Yao v Zhang & Anor [2007] FMCA 1340. At the hearing before me there was no appearance in Court by the applicant, who is legally represented. During an adjournment of this matter however my associate contacted the applicant’s solicitor, who informed her that the lack of appearance was due to some confusion or miscommunication as to the hearing date. I sought the views of the respondents through the interpreter present in Court. I then decided to give judgment on the case on its merits notwithstanding the absence of the applicant.
I understand that the applicant seeks relief pursuant to the Trade Practices Act 1974 (Cth) in relation to a breach of contract. As Wilson FM pointed out at first instance the applicant faces difficulties going to jurisdiction in bringing this claim (in particular at [8]-[13] of his Honour’s reasons). His Honour was of the view that the most appropriate forum for this matter to be heard is the State Magistrates Court, and that the most appropriate way to transfer this matter to the State Magistrates Court is by a transfer from the Federal Court to the State Supreme Court, as permitted by s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 and then a further transfer from the State Supreme Court to the State Magistrates Court. Wilson FM pointed out that, although this is a rather circuitous means, the applicant would otherwise be out of time to commence an action in this matter in the State Magistrates Court.
Section 5(4) Jurisdiction of Courts (Cross-Vesting) Act 1987 provides as follows:
(4) Where:
(a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection referred to as the first court ); and
(b) it appears to the first court that:
(i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is…

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.

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Details

Case: [2007] FCA 1405
Decision Date: 4 September 2007

CaseChat Overview and Summary

The parties involved in the case Yao v Zhang are Yao, the applicant, and Zhang, the respondent. The matter pertains to the applicant's application to transfer the Federal Court proceedings to the Supreme Court of Queensland. The Federal Court proceedings were originally filed in the Federal Court of Australia, however, the applicant now seeks to have them transferred to the Supreme Court of Queensland. The application was heard in the Federal Court, and the matter was to determine whether the proceedings should be transferred to the Supreme Court of Queensland.

The primary legal issue before the court was whether the Federal Court had the authority to transfer the proceedings to the Supreme Court of Queensland under section 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The applicant argued that the transfer was appropriate given the nature of the dispute, and the respondent contended that the Federal Court did not have the jurisdiction to transfer the proceedings. The court was required to consider the relevant provisions of the Act and the circumstances of the case to determine whether the transfer was appropriate.

In considering the matter, the court noted that section 5(4) of the Act provides that the Federal Court may transfer proceedings to another court if it considers that the other court has exclusive jurisdiction or if the matter is more appropriately dealt with by that court. The court considered the nature of the dispute and the circumstances of the case, including the location of the parties and the subject matter of the proceedings. The court concluded that the Supreme Court of Queensland was the appropriate forum for the resolution of the dispute and that the transfer was in the interests of justice. Accordingly, the court made an order pursuant to section 5(4) of the Act transferring the proceedings to the Supreme Court of Queensland.

The court's final order was that the Federal Court proceedings number QUD254/2007 be transferred to the Supreme Court of Queensland. The order was made under section 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and was based on the court's consideration of the relevant provisions of the Act and the circumstances of the case. The transfer of the proceedings to the Supreme Court of Queensland was considered to be in the interests of justice and was therefore approved by the court.

Orders

Orders of the court

1. Pursuant to section 5(4) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Federal Court proceedings number QUD254/2007 be transferred to the Supreme Court of Queensland.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COLLIER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD254 OF 2007

JUDGE:	COLLIER J
DATE OF ORDER:	4 SEPTEMBER 2007
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD254 OF 2007

JUDGE:	COLLIER J
DATE:	4 SEPTEMBER 2007
PLACE:	BRISBANE