FEDERAL COURT OF AUSTRALIA

Huang v Abayawickrama [2008] FCA 1764

HONG CUI HUANG v CHAMINDA ABAYAWICKRAMA and UNIVERSITY OF NEW SOUTH WALES

NSD 1770 of 2008

STONE J

25 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed with costs.

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

1                     This is an application for leave to appeal from a decision of Federal Magistrate Cameron given on 22 October 2008; Huang v Abayawickrama & Anor [2008] FMCA 1407.  The background to that decision is sufficiently set out in his Honour’s reasons and it is not necessary to repeat it here.

2                     It appears that the first respondent, Mr Abayawickrama, resides in Sri Lanka.  In order to ensure effective service on him the applicant, pursuant to leave granted by the Federal Magistrates Court, filed a “Form 14B Federal Magistrates Court Request for transmission of notice to a foreign government”.  Unfortunately, that notice referred not to these proceedings, but to other proceedings that are not presently relevant.

3                     The Federal Magistrate heard evidence of the applicant’s attempt to serve Mr Abayawickrama.  His Honour held that although the application commencing the proceeding in the Federal Magistrates Court was among the documents served on the first respondent, “it was not the application referred to in the Form 14B request”.  His Honour concluded:

The application’s failure to accord with the document description contained in paragraph 1 of the Form 14B request may have led Mr Abayawickrama to conclude that service had been ineffective.  This may be this [sic] reason why he has not entered an appearance.

4                     His Honour also observed that the application was “stale” as it was served outside the 12 month period provided in r 6.17 of the Federal Magistrates Court Rules 2001.  For these reasons his Honour held that service on Mr Abayawickrama was not effective.

5                     His Honour noted that although the Federal Magistrates Court has power to extend the life of an application for the purposes of service, that would be inappropriate in this case because of the error in the Form 14B request.  He added, however, that it was “slowness in the official service process” and not the applicant that was responsible for the delay in this case.  He therefore gave leave to the applicant to seek leave to serve the initiating application on the first respondent in a foreign country.

6                     In support of her application for leave to appeal from his Honour’s decision, the applicant filed a voluminous (152 pages) and largely irrelevant affidavit.  Her draft notice of appeal was incompetent.  It contained much irrelevant material and referred to matters going well beyond the subject of his Honour’s decision of 22 October 2008. 

7                     At the hearing of the application for leave the applicant attempted to expand the ambit of the appeal for which she sought leave, to include appeals from decisions of the Federal Magistrates Court beyond that referred to in her application.  Her submissions did not address the decision of Cameron FM. 

8                     I have reviewed his Honour’s decision and, in my view, it was undoubtedly correct.  An appeal from it would be bound to fail and I therefore refuse leave to appeal. The application is dismissed with costs.

Associate:

Dated:         27 November 2008