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 1 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. 2 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. 3 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 more appropriate that the relevant proceeding be determined by that Supreme Court; (ii) having regard to: (A) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and (B) whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross‑vesting of jurisdiction; and (C) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross‑vesting of jurisdiction; and (D) the interests of justice; it is more appropriate that the relevant proceeding be determined by that Supreme Court; or (iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of a State or Territory; the first court shall transfer the relevant proceeding to that Supreme Court. 4 Having regard to his Honour's reasons for transfer, and the nature of this application, I am of the view the proceedings should be transferred to the State Supreme Court. I take a similar view to his Honour in relation to the expense and time which would be required for this court to ascertain whether an arguable trade practices claim could be made out in this jurisdiction, which, in light of the amount claimed, is not in the interests of either party. 5 I also agree with Wilson FM that the application should not be dismissed in circumstances where the applicant would otherwise be statute-barred from commencing an action in the State Magistrates Court, and where the mechanisms available to the court and the parties would allow for the matter to be transferred there. 6 In this regard, I note and adopt the comments of Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Schultz (2004) 211 ALR 523 at 527: In the context of the Cross-Vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.An application for transfer under s 5 of the Cross-Vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the interests of justice that the proceedings be determined by another designated court, then the first court "shall transfer" the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a "clearly inappropriate" forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate. 7 Accordingly, in the interests of justice, I direct that this matter be transferred to the Supreme Court of Queensland, such that the matter can then be transferred to the State Magistrates Court should their Honours in the Supreme Court adopt Wilson FM's proposed course of action. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 10 September 2007 Counsel for the Applicant: The applicant did not appear Counsel for the Respondent: The first and second respondents appeared in person Date of Hearing: 4 September 2007 Date of Judgment: 4 September 2007