Huang v University Of New South Wales and Anor (No.3)
[2010] FMCA 468
•23 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUANG v UNIVERSITY OF NEW SOUTH WALES & ANOR (No.3) | [2010] FMCA 468 |
| PRACTICE & PROCEDURE – Application for vacation of imminent hearing date. |
| Federal Magistrates Court Rules 2001, r.11.08 |
| 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, 23 March 2010 |
| Date of Last Submission: | 23 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 23 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 this matter listed to commence on 29 March 2010 be vacated.
The matter be listed for hearing on 26 July 2010 for four days.
The parties’ opening addresses to be completed by 12:45pm on 26 July 2010.
Cross-examination of the applicant’s witnesses to be completed by 12:45pm on 27 July 2010.
Cross-examination of the first respondent’s witnesses to be completed by 12:45pm on 28 July 2010.
Cross-examination of the second respondent’s witnesses to be completed by 12:45pm on 29 July 2010.
Closing addresses to be completed by 4:15pm on 29 July 2010.
The matter be listed for directions on 1 July 2010 at 9:30am with a view to determining the readiness of the matter for hearing and the capacity of the applicant to prosecute the proceedings.
The applicant have leave to file all further evidence on which she will rely by 25 June 2010.
No evidence may be filed by the applicant after 25 June 2010 without the leave of the Court.
The applicant may not file any application in a case without that application being accompanied by a medical certificate certifying as at the date of the certificate that the applicant is capable of adequately conducting the proceedings.
The first respondent pay the applicant’s costs of and incidental to the applicant’s application in a case filed on 12 March 2010.
The applicant pay the respondents’ costs thrown away by reason of the vacation of the hearing date.
The costs ordered in order 12 be set off against the costs ordered in order 13, as far as that latter order relates to the first respondent.
| 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
The matter was before the Court today on the adjourned application to vacate next week’s hearing date. The application in a case was supported by the evidence of Drs Harvey, Ullman and Sachdev. Each of those doctors identified the applicant as suffering from a mental condition, variously described, which compromises her ability to prepare the case.
Although on the last occasion the matter was before the Court I identified a number of matters which the applicant raised as justifying an adjournment, I am of the view that all of those matters, save the applicant’s present mental condition, are not ones which would in the circumstances of this case, given its lengthy history and the opportunities to prepare relevant documents, justify the vacation of the hearing date. However, the evidence of the doctors today does satisfy me that the applicant’s mental condition is such that she would not be in a position to present her case in an adequate fashion.
Following the evidence of Dr Sachdev, which was to the effect that the applicant is not capable of adequately conducting the proceedings at present given her mental condition, the first respondent applied for an order that the applicant was in need of a litigation guardian. Given the conduct of this proceeding over time, that was a very attractive application. However, Dr Sachdev’s evidence also made it clear that if the applicant followed the course of treatment which was recommended to her, and which apparently in the past she had declined to follow, there was a good chance that she would enjoy a significant improvement in her mental state.
In particular, I was encouraged by the prospect that were the applicant to follow a regime of treatment she would be in a position to conduct her case in a way which I infer would do her justice. The decision not to appoint a litigation guardian was also motivated by concerns of efficiency in relation to the Court and the future conduct of this matter. There is nobody at present who the Court could appoint as a litigation guardian and it would simply be a matter of declaring that the applicant needed one and the matter being stayed pending the identification of such a person and their appointment. Given the evidence of Dr Sachdev it seemed that such a course would involve unnecessary appearances in Court and with no guarantee that anybody would ultimately be identified as potentially being a suitable litigation guardian. I am satisfied that there is adequate prospect that the applicant will be able to conduct her case if she takes treatment. The appropriate course, in my view, is not to appoint a litigation guardian but to stand the matter over for hearing for some months in order to give the applicant an opportunity to take the treatment which she plainly needs.
However, I will not proceed to that hearing if I am not satisfied some weeks prior to the allocated hearing date that the applicant is, in fact, in a position to continue with the hearing. In particular, I will need to be satisfied that she is capable of adequately conducting the proceedings in the sense understood by r.11.08(1) of the Rules of Court. If I am not satisfied on the next occasion then there is a good chance that I will have no alternative but to appoint a litigation guardian to the applicant to assume conduct of her case. I am heartened by the fact that the applicant has said today that she will take steps to obtain treatment for her condition.
Applications in a case
The final substantive order I make in my own terms but essentially at the request of the first respondent. During the course of these proceedings the applicant has filed a number of applications in a case, many of which were quite unmeritorious. I conclude, based on the evidence of the doctors today, that the applicant’s mental health condition had some role in the decision-making process which led to those applications, though plainly not all of them.
I am concerned, given that Dr Sachdev said today that the applicant is not capable of adequately conducting these proceedings, that any further applications in a case – and I accept the recent ones have been most vexatious to the respondents – may be actuated by a lack of judgment arising out of the applicant’s mental condition. If the applicant is demonstrated to be capable of conducting the proceedings, then I accept that her judgment is such that an application in a case should be entertained by the Court.
However, based on the evidence of the doctors today, I cannot be confident that a future application in a case, such as the ones which we have been seeing in recent times in these proceedings, would be able to enjoy that confidence. Thus, to prevent applications in a case which I am concerned might be actuated by the applicant’s impaired judgment caused by her mental condition, but at the same time giving her the right to put on any application in a case which arises out of a mind unaffected by a mental condition, I order that the applicant may not file any application in a case without that application being accompanied by a medical certificate certifying, as at the date of the certificate, that she is capable of adequately conducting the proceedings. The applicant is entitled to prosecute her case as she sees fit subject to the Court being satisfied that she is exercising the sort of judgment which a litigant is normally expected to demonstrate.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 2 July 2010
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