Hu v Li-Chien Liu [2011] FMCA 21 (24 January 2011)

Last Updated: 3 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HU v LI-CHIEN LIU

[2011] FMCA 21

TRADE PRACTICES – PRACTICE AND PROCEDURE – No jurisdiction to entertain claim – application dismissed for want of jurisdiction. PRACTICE AND PROCEDURE – Abuse of process – proceedings raising same factual issues and claiming same relief as proceedings in State court – application determined to be an abuse of process.

Trade Practices Act 1974, ss.51ACA(1), 51AD Migration Act 1958, ss.313, 314(1), 314(2) Federal Magistrates Act 1999, s.19 Migration Agents Regulations 1998, Schedule 2

McHenry v Lewis (1883) 22 Ch 397 Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192

Applicant:

YUAN YUAN HU

Respondent:

JENNIFER LI-CHIEN LIU

File Number:

BRG 1205 of 2010

Judgment of:

Jarrett FM

Hearing date:

23 December 2010

Date of Last Submission:

23 December 2010

Delivered at:

Brisbane

Delivered on:

24 January 2011

REPRESENTATION

Counsel for the Applicant:

In person

Solicitor for the Respondent:

Mr Freer

Solicitors for the Respondent:

Thynne & Macartney

ORDERS

(1) The application filed on 2 December, 2010 is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 1205 of 2010

YUAN YUAN HU

Applicant

And

JENNIFER LI-CHIEN LIU

Respondent

REASONS FOR JUDGMENT

1. Section 313 of the Migration Act 1958 provides that a registered migration agent is not entitled to be paid a fee or other reward for giving immigration assistance to another person unless the agent gives that person a statement of services (as that is defined in s.313(2) of the Act). If a person pays a registered migration agent a fee that person may recover the fee as a debt due if the person:
   1. made the payment to that registered migration agent for giving immigration assistance; and
   2. did not receive a statement of services before making the payment; and
   100. does not receive a statement of services within the period worked out in accordance with the regulations.
2. Mr Hu engaged Ms Li-Chien Liu as an immigration agent to give him immigration assistance. She is a registered migration agent. He paid her $990 for her services. He alleges (and she denies) that she did not give him a statement of services as required by Act, and so he may recover from her as a debt, the $990 he paid to her.
3. This Court, however, does not have jurisdiction in such claims under the Migration Act 1958. This Court has some jurisdiction granted by the Migration Act (see s.476 of that Act), but the jurisdiction so conferred is not apt to cover the recovery of money under s.313(3) of that Act. Being a statutory court of limited jurisdiction, there must be an express conferral of jurisdiction upon the court in relation to the subject matter of the suit, or otherwise it must come within the Court’s associated jurisdiction pursuant to s.18 of the Federal Magistrates Act 1999.
4. Mr Hu is alive to the jurisdictional issue and instead of pursuing his claim as a claim for a debt under s.313(3) of the Migration Act, he frames has claim as one for relief under Part IVB or Division 1 of Part V of the Trade Practices Act 1974 (as it was called when these proceedings were instituted).
5. Although the Court has expressly granted jurisdiction in claims arising under those parts of the Trade Practices Act 1974, Mr Hu’s claims based upon those parts of the Trade Practices Act cannot succeed for the reasons set out below.
6. As to the claim under Part IVB of the Trade Practices Act Mr Hu argues that the Code of Conduct enacted as Schedule 2 to the Migration Agents Regulations 1998 and that applies to migration agents by force of ss.314(1) and 314(2) of the Migration Act, is an industry code for the purposes of s.51AD of the Trade Practices Act. Section 51AD provides that a corporation must not, in trade or commerce, contravene an applicable industry code. Relevantly, applicable industry code is defined in s.51ACA(1) to mean the prescribed provisions of either a mandatory industry code or a voluntary industry code.
7. The migration agents’ Code of Conduct is neither a mandatory industry code nor a voluntary industry code for the purposes of purposes of s.51AD of the Trade Practices Act. To qualify as either type of industry code, the relevant industry code must be declared as either a mandatory code or a voluntary code by regulations made under s.51AE of the Trade Practices Act: see the definitions of mandatory industry code and voluntary industry code in s.51ACA(1) of the Trade Practices Act. The migration agents’ Code of Conduct is not so declared. To the extent that Mr Hu’s claim relies upon a breach of s.51AD it is entirely misconceived. That seems to be so without going on to consider whether the alleged offending conduct was engaged in by a corporation. Clearly Ms Li-Chien Liu is not a corporation and no corporation is joined to the proceedings. Moreover, no facts are alleged that would seem to attract the operation of s.6 of the Trade Practices Act.
8. Mr Hu’s claim for relief pursuant to Division 1 of Part V of the Trade Practices Act is more obscure. No particular provision is highlighted as giving rise to the relevant cause of action upon which he sues. His affidavit filed in support of his application on 2 December, 2010 refers only to his allegation that the respondent did not give him the relevant statement of service as he claims she was obliged to do. In my view no cause of action based upon a breach of the provisions of Division 1 of Part V of the Trade Practices Act is raised by the application and the supporting affidavit.
9. No cause of action in respect of which this court has jurisdiction is raised in the proceedings. Moreover, there being no proper federal claim raised by the proceedings, the associated jurisdiction of this Court is not available to assist the applicant in his claims. The application must be dismissed for want of jurisdiction.
10. In any event, even if that conclusion is incorrect, there is another reason to dismiss the proceedings. In an affidavit deposed by her solicitor and filed on 17 December, 2010 other facts emerge which lead me to conclude that the present proceedings are an abuse of process and should be dismissed on that basis. Those facts are:
    1. There are presently proceedings pending in the Supreme Court of Queensland between Mr Hu and his wife as plaintiffs and the respondent and her employer as defendants;
    2. Pleadings have been exchanged between the parties (after a successful application by the defendants to strike out the first version of Mr Hu’s statement of claim);
    100. In those proceedings, Mr Hu makes as one of a number of claims, a claim for the payment of $990 from Ms Li-Chien Liu on the same basis as in these proceedings (see paragraphs 33 – 35 and 48 of the Amended Statement of Claim).
    4. On 24 October, 2010 Mr Hu and his wife applied for summary judgment against the defendants in respect of the claim for $990. That application was dismissed on the basis that material filed by Ms Li-Chien Liu deposed to facts which, if true, suggested that she was not liable to Mr Hu as he alleges.
11. Although a cautious approach is necessary to an application that proceedings be stayed or struck out because they constitute an abuse of process, it is also well established that it is prima facie vexatious to bring two actions between the same parties, concerning the same substratum of fact in which the same relief is sought: McHenry v Lewis (1883) 22 Ch 397; Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2003] NSWCA 192.
12. The allegations and the relief sought in this Court are wholly encapsulated in the allegations and the relief sought in the Supreme Court proceedings. Those proceedings have additional parties, but I do not think that is of any relevance. The factual substratum of the claim to the repayment of $990 is the same in both courts. The relief claimed is the same. The proceedings in the State court were instituted by Mr Hu first in time and have been prosecuted by him by the delivery of pleadings and a summary judgment application. The proceedings remain to be determined in that court in the usual way. In my view nothing suggests that the continuation of the proceedings in this court is necessary.
13. Although the usual order in such a case is that the proceedings be stayed until the determination of the proceedings in the other court, this court retains a discretion to order that the proceedings be dismissed rather than stayed: Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Ltd [1989] 3 All ER 65. An order for dismissal would, in my view be appropriate in this case given the matters to which I have just referred. Were it not for the conclusion I have already expressed as to jurisdiction, I would order that the proceedings be dismissed on the basis that they are an abuse of process.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 24 January 2011