Huang v University Of New South Wales and Anor (No.2)
[2010] FMCA 192
•17 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v UNIVERSITY OF NEW SOUTH WALES & ANOR (No.2) | [2010] FMCA 192 |
| PRACTICE & PROCEDURE – Application for vacation of imminent hearing date. |
| Applicant: | HONG CUI HUANG |
| First Respondent: | UNIVERSITY OF NEW SOUTH WALES |
| Second Respondent: | FUCHUN XIAO |
| File Number: | SYG 577 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 17 March 2010 |
| Date of Last Submission: | 17 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2010 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr I. Latham |
| Solicitors for the First Respondent: | University of New South Wales Legal Office |
| The Second Respondent appeared in person |
ORDERS
The hearing of the applicant’s application in a case filed on 12 March 2010 be stood over for further hearing to 2.15pm on 23 March 2010.
The applicant have leave to file and serve subpoenas to give evidence returnable at 2.15pm on 23 March 2010 addressed to Dr Nicholas Harvey, Dr Murray Ullman and Dr Jagdeep Sachdev.
The time for service of the said subpoenas be abridged to 4pm on 18 March 2010.
Costs be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 577 of 2008
| HONG CUI HUANG |
Applicant
And
| UNIVERSITY OF NEW SOUTH WALES |
First Respondent
| FUCHUN XIAO |
Second Respondent
REASONS FOR JUDGMENT
By an application in a case filed on 12 March 2010, the applicant seeks, for a second time, an adjournment of the hearing of this matter listed later in this month. In support of that application she has filed an affidavit sworn 12 March 2010, annexed to which are medical certificates of Drs Harvey, Ullman and Sachdev. The essence of those medical certificates is that the applicant is unable to prepare documents and it would seem Dr Sachdev is also of the view that she is “unable to attend to matters relating to impending court case”. In this regard, Dr Sachdev also refers to the preparation of documents.
During the course of submissions today, the applicant made an application for the adjournment of today’s interlocutory hearing and an order that oral evidence be taken from the three doctors, although she said that Dr Ullman’s attendance would be particularly difficult to arrange because of the financial implications to him were he to close his medical centre.
When the applicant last sought the vacation of the hearing date I expressed the view that, without seeing Drs Harvey and Ullman, I was not satisfied that what they said in their medical certificates was enough to justify a vacation of the hearing date.
The certificate now issued by Dr Sachdev takes the matter slightly further along the route in favour of a decision of vacating the hearing date but, on its own, is not quite that persuasive. A number of matters are not addressed in Dr Sachdev’s certificate, those matters being ones on which I would need to be satisfied before vacating the hearing date. Consequently, I have reached the conclusion that if the applicant wishes any or all of those doctors to give evidence before me, then she should have that opportunity.
However, in saying that, I should make the observation that my principal concern is to do with the applicant’s ability to prepare herself for the hearing.
I am much less concerned with her desire to put on evidence in reply to Ms Frank and to Dr Xiao. In that connection, it should be noted that affidavits from Dr Xiao and Ms Frank were filed last year, Dr Xiao’s affidavit being filed on 4 September and Ms Frank’s being filed on 11 September. Orders made last year directed the applicant to file her evidence in reply on or before 16 October 2009. That order has not been varied. In my view, the matters which the applicant complains of now can have no impact on her failure to file any evidence in reply within the time limit ordered last year.
Similarly, I am not much taken by the applicant’s argument that she wishes to file notices to admit. Her evidence-in-chief is now on and all that notices to admit could achieve would be efficiencies in the hearing by avoiding the need to call particular witnesses.
As to correcting the mistakes in her earlier affidavits, the applicant has not provided the sort of detail which would suggest that those changes would be anything more than the sorts of changes which are so often made to the applicant’s documents in these proceedings, namely matters more of minor detail than of real substance.
As to the applicant’s concerns about her ability to copy documents, it is difficult to see how even a severe depressive disorder could make it difficult to copy documents, but the doctors may advise me otherwise. Whatever the case, the documents which the applicant wishes to copy should either already be annexed to the affidavits which she has filed in her case in-chief or could be no more than matters to be put in cross-examination. If the latter, they could be taken out of the file at any time and put to the witnesses without any need for photocopying on the applicant’s part.
Further, the preparation for cross-examination which the applicant says she needs to do perplexes me. That preparation should have been undertaken last October when the matter was originally listed for hearing. No evidence has been put on by either of the respondents since September 2009. There is nothing new which the applicant has to consider by way of cross-examination. Nor has the applicant herself put on further evidence relevant to the separate question listed for determination at the hearing in two weeks’ time. Certainly the applicant has filed some affidavits in recent times, but these have either been in support of applications in a case or dealing with matters not relevant to the hearing listed later this month.
I express these preliminary views because they are the matters which will need to be addressed on the next occasion and the applicant should be aware of the concerns that I have about her application and also aware of the issues to which the evidence of the doctors should go.
The applicant has sought an order that the evidence of Dr Ullman be taken by audio-link, based on the disruption to his practice which would be caused were he to attend in person. Mr Latham, on behalf of the first respondent, has submitted that the first respondent wishes to put a number of documents to all of the doctors to test their opinions concerning the applicant’s ability to prepare documents for this case. Mr Latham has indicated that the bulk of the documents is likely to be significant. In the circumstances, I am not satisfied that it would be an appropriate course to grant leave for Dr Ullman to appear by telephone. Therefore, the orders sought in that regard by the applicant will be refused.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 22 March 2010
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