Jiang v Quach S142/2000 [2001] HCATrans 38 (16 February 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S142 of 2000

B e t w e e n -

QING-TIAN JIANG

Applicant

and

JOHN T.M. QUACH

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 2001, AT 2.17 PM

Copyright in the High Court of Australia

MR Q.T. JIANG appeared in person.

MR J.F. HASSETT: I appear for the respondent. (instructed by Hassett Dixon)

JIA ZHOU, sworn as interpreter:

McHUGH J: Yes, Mr Jiang. Would you explain to him, Ms Interpreter, that he has 20 minutes to put his argument to us. Three minutes before the 20 minutes is up the yellow light will come on warning him that he has only 3 minutes. Perhaps he might proceed with his argument. Would you go to the rostrum.

MR JIANG: I will supplement my summary of argument with oral submissions. For the reasons set out below, it is denied that the appellant, both at the trial and in the appeal, has not followed the procedure laid down in the rules for the making of application for the lodging of fresh evidence and did not apprise the respondent of the nature of the fresh evidence.

McHUGH J: But that is not the grounds relied on in your summary of argument which appears at page 26 of the book. You rely on two points. The first is that the judge erred in refusing leave to issue a subpoena. The second is you allege now, but you did not allege in the Court of Appeal, that Acting Justice Brownie did not give you every opportunity to present your case. They are the only two grounds which are before us and your argument will have to be confined to those two grounds.

MR JIANG: Yes, only the two important questions, first, about issuing subpoena. Acting Judge Brownie refused my application for the subpoena to issue to the Soviet Union to Agro Chim Export company. This is the first. Acting Judge Brownie said the reason why I refuse to issue the subpoena, because the witness, my witness, Sergei Bulgak, according to this, contends by the witness, he said the Russian - - -

McHUGH J: If I could just interrupt you. You correct me if I am wrong. The judge said that Mr Bulgak had said that Mr Panteleev of Agro Chim Export had made a statement to him and it seemed from that that it was unlikely that Agro Chim Export would respond to the subpoena even if it was issued, that company having its offices in Russia and the Ukraine. The other factor to which the judge referred was that you made the application for leave to issue the subpoena after the evidence in the case was completed. In those circumstances the judge declined to give you leave. That is what is called a discretionary judgment. You have to show there was some error in the exercise of the judge's discretion. The Court of Appeal thought there was not. What was the error that the judge made?

MR JIANG: The judge said because of the company, Agro Chim Export, corruption, corruption to break the rule of Russia.

McHUGH J: The judge did not say anything about corruption in his judgment.

MR JIANG: Not this term, not "corruption"; to break the rule of Russian Federation, he said. So I do not think if I issue the subpoena to Agro Chim Export, he will respond.

McHUGH J: Yes, I know, but the judge said, did he not, that according to Mr Panteleev, Agro Chim Export had been breaching Russian law and perhaps the law of the Ukraine or the former Soviet Union in that it had been exporting when it should not have been. That being so, the judge thought it is unlikely that they were going to answer a subpoena to produce documents which would show they were breaking the law.

MR JIANG: Because the witness said the question. The company, Agro Chim Export, had confirmed only one official contract of 20,000 metric tonnes of urea. He said other contract unofficial. So Acting Judge Brownie said this means this company break the rule, break the policy of the rule, of the Russian Federation.

McHUGH J: Justice Kirby and I have read the papers, we have read your submissions and we understand the case that you made, but what you have to realise is that we do not hear appeals as of right; there has to be something special about the case before we will grant leave. This is just a matter concerning procedure which ordinarily it is very difficult to get leave to appeal, not only in this Court but in other courts of appeal. What is special about this case?

MR JIANG: Court of Appeal dismiss my case, they said because I did not send the fresh evidence to the respondent.

McHUGH J: But that is a different point. That is not a point that is before us. In your special leave application you have two grounds: one, about the subpoena and, two, about fair opportunity to present your case. There is no ground in your notice about the evidence.

MR JIANG: The two question, one is issue subpoena and another one, Acting Judge Brownie - before this, the Chief Justice of Supreme Court give me two days of hearing, but Brownie kidding me. Brownie said, "No, wait. Just we discuss how many tonnes. If the - - -

McHUGH J: That is not quite fair to the learned judge, is it? What happened is that the defendant, with a view to saving time and costs, suggested that the judge should first determine whether Semvilar had brought any urea at all, and the judge says you agreed to that. Therefore, the judge did as he was entitled to do: made an order under Part 31 rule 2 just to try that issue. On that issue you failed because there was not the slightest evidence before the judge that Semvilar had ever bought anything. In fact, its director said they can only buy it at $US178 to $US176 a tonne and the market for it was only $152 a tonne, so they were not interested in buying it and they never bought any. Your whole claim to commission depended upon there being purchases of the urea by the company.

MR JIANG: May I say?

McHUGH J: Yes.

MR JIANG: This is a crucial question because defendant deceived not only me, defendant deceived Australian Supreme Court, Court of Appeal and today Australian....High Court, because this fabricate lies, 152.

McHUGH J: What the judge said is that there was a lot of evidence that urea - - -

MR JIANG: Acting Judge Brownie in his judgment of 3 November 1999, here I must say this judgment, even the date of issue of the judgment is wrong.

McHUGH J: It has 4 November on it.

MR JIANG: Written 4 November. I indeed certain of it. Even this problem, they paid no attention. In his judgment, paragraph 6, Acting Judge Brownie greatly admired the defendant, Quach, fabricated the lies. $178, $176, and then after, $152, and the professed - said:

There is no direct evidence contradicting -

Quach's -

simple logic -

But people cannot help asking you, "Do you have any evidence proving this anecdote are not fabricated lies?" when, which company gave the counter offer of $152 metric tonne. Why Quach instruct me to give a counter offer of $169 when Aspac give us a quotation of $179?

McHUGH J: Mr Jiang, what the judge said is that there was no evidence contradicting that evidence called in the defendant's case and he said "the simple logic . . . is fairly attractive." But then the judge went on to say that if the company had bought anything, you would expect there would be some documentation, but there was not any. There was no evidence at all that this company had ever bought anything. A lot of urea had been shipped from the Ukraine to Hong Kong and/or China but there was no evidence that any of it was shipped on behalf of Semvilar, and that is where your case failed. Your claim was for a commission of a dollar per tonne of urea bought by Semvilar but you failed to prove it bought any.

MR JIANG: Acting Judge Brownie heard only one side, the defendant side. He did not listen to both sides. He not permit me to say anything during the two hours of hearing. When I said the defendant deceived court - for example, he went to Bangkok, Thailand to sign contract with former Soviet Union company and he said, "No, I didn't go to Bangkok. Look, here is my passport, passport copy". Here on 3 November we found all this passport is expired, all the passport. We ask him for current passport. Where the passport, where? He took out and give us a copy. He has been to Bangkok. First, he deceives the court. Second, we send a fax to former Soviet Union company, the name Aspac, in Bangkok, Thailand. The defendant knowingly change this name. He said, "No, not Aspac company of Russia".

McHUGH J: Mr Jiang, in your own interest you have to stick to the issues. These matters, which you did raise before the Court of Appeal, are not matters that you have raised here. I do not know who drafted your special leave application but it is confined to two matters, one about subpoena, one about fair opportunity.

MR JIANG: Yes. First, subpoena. Why? "Why you did not issue subpoena? You can issue subpoena to Soviet Union, today's Russian Federation. You send subpoena to Russia" and in Moscow there is the Supreme Court in Moscow, even via Soviet Supreme Court in Moscow to give everything.....escort. I apply just subpoena because in Australia court never send certificate to other country to any witnesses to give us evidence, exhibit. In Australia only apply for subpoena to issue and then the witness send us certificate. I want what certificate quality of contract signed between Quach/our company. Only two person: Quach and me. I general manager, Quach so-called a director. This two person.

He said he did not issue subpoena. What you did not recognise the witness 20,000 metric tonnes urea because the witness went ten times to Russia, to Moscow. Panteleev said....... This Panteleev said, "If we give you the correct digit of the urea you bought, then because we just as corrupt - this only put to their own pocket, then the court will present us the death sentence". It is a very serious problem in the Soviet Union and just like in China.....were corrupt, only corrupt. Today's Moscow, everywhere corrupt, only corrupt, no truth. Why you did not recognise only 20,000 metric tonnes of urea this official contract? You did not recognise.

You, Acting Judge Brownie, very interesting, the defendant's simple logic. $152 a metric tonne. This is simple logic, "very attract me". What logic? This man, defendant, deceived them not one time, every time deceived court. I work for him. He say, "I give you $300 per week". Where? He did not give me one cent. "And I give you $1 commission". When I did all the business with the former Soviet Union in 1989 when I contact with - not in English, in Russian. And.....send a fax to us and we send fax to him, Quach sign on the fax document, I sign, and reply to us and Mr Boris Troshin, Russian manager, sign. All this document here but defendant say, "No, we have nothing. We no longer have the letter. We receive just the letter from Russian Embassy in Bangkok". At that time deceive the people, deceive the court.

This one very simple, very simple question. Just send subpoena to Russia. Even today, even now send subpoena. I have written many letters to the Russian President, Boris Nikolayevich Yeltsin, today's President Putin.

McHUGH J: Mr Jiang, your 20 minutes is up.

MR JIANG: Yes, I know.

McHUGH J: Ms Interpreter, would you discuss with the applicant to see if there is anything further that he wants to say. His time is up.

MR JIANG: May I say something?

McHUGH J: Yes.

MR JIANG: The time is up. Today's problem, because just send the subpoena to Russia.

KIRBY J: I think we understand that. The question was not to allow you to have further time in the English language, but whether there was anything in Mandarin that you wanted to say to us through the interpreter, as she has come today. But you seem to have expressed yourself pretty clearly in the English language and we have read the documents that you have given us, so I think we understand your case.

MR JIANG: You understand me when I speak English. The defendant said that I speak just broken English. Am I speaking broken English?

McHUGH J: Certainly not and you seem very eloquent, Mr Jiang, but your time is up and I will have to ask you to sit down, please. Yes, the Court need not hear you, Mr Hassett.

In this matter, the applicant seeks special leave to appeal on two grounds. The first is that Acting Justice Brownie erred in refusing to grant leave to issue a subpoena to produce documents on a foreign company which is situated in Russia and in the Ukraine.

The application for leave was made after the evidence in the case had been completed. The learned trial judge gave reasons for refusing to grant leave. The Court of Appeal could see no error in the exercise of the judge's discretion, nor can we. In addition, the matter concerns a matter of practice and procedure which is always a strong ground for refusing leave to appeal in this and other courts.

The second ground of the application is that Acting Justice Brownie did not give the applicant every opportunity to present his case. This was not a ground of appeal before the Court of Appeal. The transcript of the trial before Acting Justice Brownie is not before us and the allegation of lack of opportunity to present the case depends on the applicant's assertions from the Bar table and in his written summary of argument. That being so, the applicant should not be given leave to investigate what is a purely factual matter which is not the subject of any sworn evidence before us and which was not raised in the Court of Appeal.

The application for special leave to appeal is refused and must be refused with costs.

The Court will now adjourn to reconstitute.

AT 2.42 PM THE MATTER WAS CONCLUDED