Huang v University of New South Wales (No 2)

[2010] FCA 299

FEDERAL COURT OF AUSTRALIA

Huang v University of New South Wales (No 2) [2010] FCA 299

Citation:		Huang v University of New South Wales (No 2) [2010] FCA 299
Parties:		HONG CUI HUANG v UNIVERSITY OF NEW SOUTH WALES and FUCHUN XIAO
File number(s):		NSD 125 of 2010
Judge:		EMMETT J
Date of judgment:		12 March 2010
Catchwords:		EVIDENCE – whether leave should be granted pursuant to s 9A of the Foreign Evidence Act 1994 (Cth)
Legislation:		Foreign Evidence Act 1994 (Cth) s 9A
Date of hearing:	12 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	4
The Applicant appeared in person.
Counsel for the Respondents:	I Latham
Solicitor for the Respondents:	University Solicitor & General Counsel Legal Office, University of New South Wales

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 125 of 2010

BETWEEN:

HONG CUI HUANG
Applicant

AND:

UNIVERSITY OF NEW SOUTH WALES
First Respondent

FUCHUN XIAO
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	12 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.There be no order as to the costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 125 of 2010

BETWEEN:

HONG CUI HUANG
Applicant

AND:

UNIVERSITY OF NEW SOUTH WALES
First Respondent

FUCHUN XIAO
Second Respondent

JUDGE:	EMMETT J
DATE:	12 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 4 March 2010, I heard an application for an order under s 9A of the Foreign Evidence Act 1994 (Cth) by Ms Hong Cui Huang. On that day, I stood the matter over to 12 March 2010, having concluded, for reasons that I then gave, that there was no utility in granting the order sought. I indicated on 4 March 2010 that, if on 12 March 2010, the fixture in the Federal Magistrates Court for 29 March 2010 had not been vacated, I would dismiss this application. I also indicated that if the hearing had been vacated, I would consider affording Ms Huang the opportunity of renewing her application.

2. When the matter was called on for hearing this morning, Ms Huang confirmed that she had not yet made any application to the Federal Magistrates Court to vacate the hearing date on 29 March 2010. She intimated that she intended to do so. Nevertheless, she has not, at this stage, done so, and the fixture for 29 March 2010 remains. In those circumstances, for the reasons that I previously gave, there is no utility in making an order under s 9A and, accordingly, the present application should be dismissed.

3. The University, as I said in my earlier reasons, did not oppose or support Ms Huang’s application, appearing in effect as amicus curiae.  However, the University has now asked for an order for the costs of the application.  The University had previously written to Ms Huang suggesting that there was no utility in proceeding with the application, so long as the fixture before the Federal Magistrates Court was maintained.  The University has pointed out, through its counsel, that an extraordinary amount of time was required to hear what should have been a relatively discrete matter.  The University says that the application was hopeless in the circumstances for the reasons that it had foreshadowed in its letter. 

4. While I am sympathetic of the University’s position in having incurred costs, I am also mindful of the fact that Ms Huang appears without legal representation.  Such a proceeding would normally be made ex parte.  In the circumstances, I do not consider that it is appropriate to make any order as to the costs of the application.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       29 March 2010