Huang v Abayawickrama and Anor (No.2)
[2008] FMCA 1579
•24 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v ABAYAWICKRAMA & ANOR (No.2) | [2008] FMCA 1579 |
| HUMAN RIGHTS – PRACTICE & PROCEDURE – Adjournment of proceedings pending outcome of application for leave to appeal to the Federal Court on earlier interlocutory decision refused. |
| Federal Court Rules, Order 8 |
| Huang v University of New South Wales & Anor [2008] FMCA 1578 |
| Applicant: | HONG CUI HUANG |
| First Respondent: | CHAMINDA ABAYAWICKRAMA |
| Second Respondent: | UNIVERSITY OF NEW SOUTH WALES |
| File Number: | SYG 2920 of 2004 |
| Judgment of: | Cameron FM |
| Hearing date: | 18 November 2008 |
| Date of Last Submission: | 18 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 November 2008 |
REPRESENTATION
| The Applicant appeared in person. |
| There was no appearance by the First Respondent. |
| Counsel for the Second Respondent: | Ms J. Oakley |
| Solicitors for the Second Respondent: | University of New South Wales Legal Office |
ORDERS
The application in a case filed on 14 November 2008 be refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2920 of 2004
| HONG CUI HUANG |
Applicant
And
| CHAMINDA ABAYAWICKRAMA |
First Respondent
| UNIVERSITY OF NEW SOUTH WALES |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 14 November 2008 the applicant filed an application in a case in which she sought the following orders:
1.The Court reserves all the documents and all these applications in case in the proceedings SYG2920/2004 and SYG577/2008 and no hearings have been listed until the Federal Court give the judgements for my appeals from his Honour FM Driver’s judgement of 11 February 2008 and his Honour FM Cameron’s judgment of 22 October 2008, because:
· I request the Federal Court orders these proceedings back to his Honour FM Driver, who has experienced various issues and who has dealt with the most issues and evidences, and that his Honour FM Driver continues to complete these proceedings because of the times and costs saved way, avoiding unnecessary issues conducted my new Magistrates, and giving judgements for my integrated case.
· My request for the Court to hear my claims against Mr Xiao concurrently with my claims against Mr Abayawickrama is one of the request that I raise in these applications in case, but his Honour FM Cameron has disagreed it.
· In my appeal from his Honour FM Cameron’s judgement given on 22 October 2008, I also appeal from his Honour FM Cameron’s order made on 8 October 2008 in which his Honour separately hears Mr Xiao matter from the Mr Abayawickrama matter on 18 November 2008, so the hearing listed on 18 November 2008 can not be conducted.
· Before receiving the judgement from the Federal Court on my appeal from his Honour FM Cameron’s judgment of 22 October 2008 about the service on Abayawickrama, these applications in cases filed on SYG577/2008 and SYG2920/2004 can not be heard.
· The hearing listed on 18 November 2008 is not what I have expected that his Honour FM Cameron hear the Mr Xiao matter separately from the Mr Abayawickrama matter and has received Ms Oakley represents Mr Xiao in the hearing and has received her submissions in assisting Mr Xiao.
2.The hearing listed on 12 December 2008 is vacated until the Federal Court give the judgement.
3.The Court return these proceedings back to his Honour FM Driver to complete them
4.The Court notes that the UNSW denied serving the originating application on Mr Abayawickrama and has denied representing Mr Abayawickrama in these proceedings.
5.The Court notes that the UNSW is excused from attending the hearings for the service on Mr Abayawickrama in Order made on 12 August 2004.
6.The Court notes that in the hearing against Mr Xiao before his Honour FM Driver, I denied Ms Oakley attended the hearings and denied she represented Mr Xiao in the hearings, and she did not directly make any written submission for the Xiao matter before his Honour FM Driver.
7.The Court note that I have denied Ms Oakley represents Mr Abayawickrama in the hearings and have denied she made submissions for Mr Abayawickrama in the Abayawickrama matter.
8. The Court directs the UNSW solicitor and counsel be excused from attending the hearings in these proceedings for my claims against Mr Abayawickrama until the Court will give other directions and orders.
9.The Court removes the UNSW as a party away from proceeding SYG2920/2004 until the Court will give other directions or orders.
10.The Court objects that Ms Oakley represents Mr Abayawickrama in the hearing and objects Ms Oakley make submissions for Mr Abayawickrama in my claims against him.
11.The Court rejects all these submissions that have been filed by the UNSW for Mr Abayawickrama in my claims against him from the file and back to the UNSW.
12.The Court order whatever the UNSW solicitor and counsel are responsible for their own costs relating to they attending these hearings in these proceedings for my claims against Mr Abayawickrama and I am not responsible for any costs relating to they attending the hearings in which they are excused from.
13.The Court deal some issues or Orders in chambers or by the Registrar, as his Honour FM Driver has done before to avoid unnecessary times and costs involved, for example Order made on 20 April 2006 in chambers.
14.My claims against Mr Xiao are concurrently heard with my claims against Mr Abayawickrama.
15.The Court hears my claims against Mr Abayawickrama under files SYG2920/2004 and SYG1691/2003 and SYG2124/2004.
16.The Court removes Order 1 made on 8 October 2008, because it is double times and costs involved.
An almost identical application in a case was filed in the proceedings which the applicant has brought against the University of New South Wales (“UNSW”) and a Dr Xiao in proceedings SYG 577 of 2008. The application filed on 14 November 2008 in these proceedings will be dismissed for the reasons set out in the reasons for judgment delivered today in those other proceedings, Huang v University of New South Wales & Anor [2008] FMCA 1578 and for the reasons below which deal with certain matters raised in the application which were not necessary to be considered in my reasons for judgment in SYG 577 of 2008.
The first of the matters particular to these proceedings concerns the reference in paragraph 1 of the application in a case to my judgment of 22 October 2008. In that judgment I gave answers to questions which had been ordered to be considered separately. The applicant advises that she has sought leave to appeal from that judgment. At this point, no advice has been received from the Federal Court that leave has been granted or that any appeal consequent upon such potential leave has been successful. There is no reason for these proceedings to lie dormant simply on account of the existence of Federal Court proceedings. In any event, given that service on the first respondent has been found to be ineffective the matter is unlikely to proceed any distance unless the Federal Court sets aside the orders made on 22 October 2008 or the applicant files the application pursuant to Order 8 of the Federal Court Rules which my orders of 22 October 2008 granted her leave to file.
As to paragraph 2, these proceedings are listed for directions on 12 December 2008. It is inappropriate that matters be stood over generally. As the status of the Federal Court proceedings is unclear, it is appropriate that the parties advise the Court formally of the status of such application as has been made to the Federal Court. If the parties wish to adjourn the directions hearing by consent to a future identified date, the Court will consider an application to that effect.
For these reasons, the application in a case filed on 14 November 2008 will be refused.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 24 November 2008
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