Lin v American International Assurance Company(Australia) Limited

[2007] FCA 992

FEDERAL COURT OF AUSTRALIA

Lin v American International Assurance Company (Australia) Limited [2007] FCA 992  

PING LIN v AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED
NSD 95 OF 2005

COWDROY  J
8 JUNE 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 95 OF 2005

BETWEEN:	PING LIN 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 applicant to file a Notice of Motion in Court for an extension of time in which to file his evidence.

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

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

4.The applicant 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 95 OF 2005

BETWEEN:	PING LIN 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 hearing of the motion commenced on 28 May 2007. In summary the motion was brought because of the persistent failure of the applicant to file the evidence upon which he intends to rely in support of his application. The relevant facts are set out in the Court’s decision given on 28 May 2007: see Lin v American International Assurance Company (Australia) Limited [2007] FCA 991.

2. The Court is mindful of the seriousness of dismissing the proceedings under Order 20 Rule 2(c) of the Federal Court Rules. It was for this reason it considered that despite the inordinate delay a further extension of time should be granted to enable the applicant to file any evidence upon which he intends 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 applicant file and serve all affidavits upon which he intends to rely by 4 pm on 6 June 2007.

3. An affidavit has been filed by the applicant’s solicitor Mr Lawrence Lin on 8 June 2007. Additionally the applicant has filed a notice of motion in these proceedings seeking an extension of time until 5 December 2007 in which to file evidence and an order vacating the hearing dates.

4. The application for an extension of time in which to file affidavits is made on the basis that the applicant is suffering from a psychiatric condition. A medical report has been filed by a medical practitioner, namely Dr B Nehmer. The report is difficult to read but it begins as follows:

   ‘I have been seeing Ping for the last one month. In my opinion he is suffering from severe depression and anxiety which is not responding to current therapy. I have opted to change his medication...’

5. The balance of the report appears to indicate that the applicant is not mentally fit to provide affidavits within the next six months. The medical practitioner is not the same medical practitioner relied upon in the previous affidavit of the Mr Lin sworn 24 May 2007. In this affidavit medical reports from other practitioners were attached which indicate that the applicant has been suffering from depression since at least 2001.

   FINDINGS

6. The applicant’s motion for a further extension of time in which to file his evidence is opposed by the respondent who provides cogent reasons to support such opposition. One reason is that the proceedings have now been in existence since 2003. In the whole of that time the applicant has not provided evidence in support of his case. Secondly, the respondent may be prejudiced because with the effluxion of time since the proceedings were instituted, its employees may have moved on and may not be contactable for the purposes of obtaining evidence. Thirdly, the continuing cost of these proceedings has become inordinate.

7. There is no evidence from a psychiatrist that the applicant is unable to provide affidavits. Further it is not explained how the applicant was able to conduct his own proceedings personally in the Administrative Decisions Tribunal at the time that he was allegedly suffering from depression. I give little weight to the medical evidence furnished today as providing justification for the applicant’s failure to provide affidavits as directed.

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

9. It is a serious step to strike out proceedings when they have not been heard or the facts and evidence explored and tested. Nevertheless, in this case the Court is mindful that since December 2005 insufficient steps have been taken to comply with the Court’s orders 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.

10. I consider that the inordinate delays and the lack of satisfactory evidence explaining such failures, which exist form 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 Court’s process. In such circumstances it is open to the Court to dismiss or stay the proceedings to prevent the continuation of the abuse of Court process: see Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.

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

12. Had there been some valid 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 extension of time.

I certify that the preceding twelve (12) 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