Leung v American International Assurance Company(Australia) Limited

[2007] FCA 990

FEDERAL COURT OF AUSTRALIA

Leung v American International Assurance Company (Australia) Limited [2007] FCA 990

WILLIAM LEUNG, QING NA RONG AND WEN GOODWILL (AUSTRALIA) PTY LIMITED v AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED
NSD 1497 OF 2003

COWDROY J
8 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1497 OF 2003

BETWEEN:

WILLIAM LEUNG
First Applicant

QING NA RONG
Second Applicant

WEN GOODWILL (AUSTRALIA) PTY LIMITED
Third Applicant

AND:

AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED
Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	8 JUNE 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the applicants to file in Court their Notice of Motion for an extension of time in which to file their evidence.

2.The applicants’ motion for an extension of time in which to file evidence be dismissed.

3.The proceedings be dismissed pursuant to Order 20 Rule 2 (c) of the Federal Court Rules.

4.The applicants pay the costs of the respondent, including the costs of this motion unless within 14 days an application is made by either party for a different order.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1497 OF 2003

BETWEEN:

WILLIAM LEUNG
First Applicant

QING NA RONG
Second Applicant

WEN GOODWILL (AUSTRALIA) PTY LIMITED
Third Applicant

AND:

AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED
Respondent

JUDGE:	COWDROY J
DATE:	8 JUNE 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a resumed hearing of a motion filed on 16 May 2007 by the respondent. In that motion orders are sought including orders that the proceedings be dismissed pursuant to Order 20 Rule 2 (c) of the Federal Court Rules upon the basis that the proceedings constitute an abuse of process of the Court. The motion was brought because of the persistent failure of the applicants to file the evidence upon which they rely in support of their application. The relevant facts are set out in the Court’s decision given on 28 May 2007: see Leung v American International Assurance Company (Australia) Limited [2007] FCA 989.

2. The Court is mindful of the serious step it is to strike out proceedings under Order 20 Rule 2 (c) of the Federal Court Rules. For this reason the Court considered that despite the inordinate delay in the conduct of the proceedings, a further extension of time should be granted to enable the applicants to file any evidence upon which they intend to rely in the proceedings. Accordingly on 28 May 2007 the hearing of the motion was adjourned until today and a direction was made that the applicants file and serve all affidavits upon which they rely by 4 pm on 6 June 2007.

3. The applicants filed a notice of motion on 8 June 2007. Such motion seeks an extension of time for the applicants to file their evidence, and a vacation of the hearing dates currently fixed for 27 August to 6 September 2007.

4. An affidavit in support of the motion has been provided by Mr Lawrence Lin, the applicants’ solicitor. He states that between 25 May 2007 and 4 June 2007 he was ‘traveling [sic] on flight and/or overseas’. He states that ‘on or about 4 and 5 June 2007’ he attempted to contact the applicants but was not successful. He also states that the applicant’s wife later told him that the applicant was overseas, but ‘should be back a couple of days later’.

   FINDINGS

5. The applicants’ motion for a further extension of time to file evidence is opposed by the respondent which supported its opposition with cogent reasons. One reason is that the proceedings have now been in existence since 2003. In the whole of that time the applicants have not provided evidence in support of their case. Secondly, the respondent may be prejudiced because with the effluxion of time its employees may move on and may not be contactable to obtain evidence. Thirdly, the continuing cost of these proceedings has become inordinate.

6. Accepting the evidence of Mr Lin, there is no evidence as to why the legal practitioner representing the applicants in Court on 28 May 2007 was unable to contact the applicants and the Court finds the evidence relating both to the applicants and Mr Lin wholly unsatisfactory and unconvincing.

7. I consider that an extension of time would serve no other purpose than to provide a further opportunity for delay.

8. It is a serious step to strike out proceedings when they have not been heard or the facts and evidence tested. Nevertheless, the Court is mindful that insufficient steps have been taken to comply with the Court’s orders since December 2005 to provide the necessary evidence. The proceedings have incurred great expense yet nothing seems to have been done to bring this matter to a stage at which it is ready to proceed to hearing.

9. I consider that the inordinate delays and the lack of satisfactory evidence explaining such failures, which exist from the order of Wilcox J made on 14 December 2005 constitute a challenge to the authority of the Court, and lead to the conclusion that these proceedings are an abuse of the process. In such circumstances it is open to the Court to stay or dismiss the proceedings to prevent the continuation of the abuse of Court process: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.

10. I am satisfied that this is one of those rare cases in which, because of a persistent failure of the applicants to comply with the orders of the Court, the Court should exercise its discretion to strike out the proceedings.

11. Had there been some valid excuse or reason for the delays the Court would not have been minded to exercise such jurisdiction. However, the point has been reached where it would be a travesty of justice to allow these proceedings to continue. Accordingly the Court dismisses the application and the motion for an extension of time.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:
Dated:        8 June 2007

Counsel for the Applicant:	I. Archibald
Solicitor for the Applicant:	Accentro Legal
Counsel for the Respondent:	B. Shields
Solicitor for the Respondent:	Ebsworth & Ebsworth
Date of Hearing:	8 June 2007
Date of Judgment:	8 June 2007