FEDERAL COURT OF AUSTRALIA Huang v University of New South Wales [2006] FCA 595 HONG CUI HUANG v UNIVERSITY OF NEW SOUTH WALES AND ORS NSD 908 OF 2005 RARES J 27 MARCH 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 908 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: HONG CUI HUANG APPLICANT AND: UNIVERSITY OF NEW SOUTH WALES FIRST RESPONDENT BOBAN MARKOVIC SECOND RESPONDENT CHRIS WINDER THIRD RESPONDENT CHAMINDA ABAYAWICKRAMA FOURTH RESPONDENT FUCHUN XIAO FIFTH RESPONDENT JUDGE: RARES J DATE OF ORDER: 27 MARCH 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application be dismissed. 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 908 OF 2005 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT BETWEEN: HONG CUI HUANG APPLICANT AND: UNIVERSITY OF NEW SOUTH WALES FIRST RESPONDENT BOBAN MARKOVIC SECOND RESPONDENT CHRIS WINDER THIRD RESPONDENT CHAMINDA ABAYAWICKRAMA FOURTH RESPONDENT FUCHUN XIAO FIFTH RESPONDENT JUDGE: RARES J DATE: 27 MARCH 2006 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for adjournment of the appeal in this matter which has been listed for hearing on Friday, 31 March 2006. Mr Mullen appears for the first respondent ('the university'). The other active party to the appeal is the fifth respondent, Mr Xiao, who apparently has not been given notice of today's hearing. 2 The appellant has put forward four reasons for the adjournment. The first is her health condition which was the subject of an affidavit which she filed with her notice of motion on 21 March 2006 attaching four medical reports prepared in February and March this year. The second reason was that the appellant said she found it very difficult to prepare and finalise a written submission for the hearing of this matter. 3 Her third reason was that she was involved in related proceedings before the Federal Magistrates Court which are part heard before Driver FM. I am informed by Mr Mullen who appears for the university that those proceedings have already proceeded for six days before his Honour and that hearing is to resume before his Honour on 5 June 2006 for a further week. The appellant says that she wants to be able to have heard together any appeal from his Honour's decision in those part-heard proceedings with the appeal from his Honour's decision the subject of the current appeal. 4 Fourth, the appellant says that she would like to have dealt with today her application to call fresh evidence from Ms Wang. The university opposes the application on the ground that the proceedings were commenced before the Federal Magistrates Court in August 2003 and involved incidents that occurred in three years commencing in 1999. The procedural history in the Federal Magistrates Court involved a separation of the issues the subject of the current appeal from the proceedings which are now part heard before Driver FM. His Honour gave judgment in the proceedings the subject of the appeal on 16 May 2005 and the notice of appeal was lodged in this court in early June 2005. 5 I was informed that there have been a number of directions hearings in this court to deal with the conduct of the appeal. On 11 November 2005 Justice Emmett ordered that an affidavit of Mr Xiao sworn 4 April 2005 in the proceedings the subject of the appeal be included in the appeal book, that any motions already filed producing further evidence be heard at the final hearing and listed the matter provisionally for hearing on 6 March this year. Due to listing difficulties I had the matter fixed for 31 March 2006 rather than that date. 6 There is also an application which the appellant has filed in the court seeking leave to appeal from an interlocutory decision of Driver FM in the part-heard proceeding in which his Honour held that he had no jurisdiction in relation to an issue in those proceedings. That application for leave to appeal has been listed before Lindgren J for hearing on 30 March 2006. The appellant has provided written submissions in support of that application which was filed on 21 March 2006. 7 The university accepts that the appellant does in fact suffer from a medical condition involving her having anxiety, depression and obsessive-compulsive disorder which is the subject of the medical certificate from Dr Borg of 15 February 2006. However, the university notes that those are conditions from which the appellant has suffered for a considerable period and, indeed, that certificate to which I refer is dated 15 February 2006 and there is a subsequent certificate indicating a similar condition which was prepared on 13 March 2006, apparently seeking an adjournment from Driver FM in respect of the part-heard proceedings which were listed for 14 and 15 March 2006. 8 It seems to me that the appellant's health condition is not such as has prevented her from being able to prepare a detailed written submission for Justice Lindgren and a large number of affidavits which she wishes to have the court receive on her motion to adduce fresh evidence in support of her appeal. The appellant says she is having difficulty finalising her written submission for the hearing of the appeal but she is under no direction to file any written submissions and while such a document may be of assistance at the hearing I am satisfied that she is able to use what she has drafted to assist her in arguing the appeal if it is to proceed on Friday. 9 I do not consider that there is any basis upon which I ought to adjourn the hearing of the appeal by reference to what is part heard before Driver FM. The appeal has been set down and Mr Xiao has not, by unfortunate oversight, been notified of today's hearing. The result of the appeal may be to give him or the appellant and the university in respect of the complaint against Mr Xiao some certainty depending on what the outcome of the appeal is. 10 The appellant appears to have chosen to separate the complaints against Mr Xiao from the balance of her application before the Federal Magistrates Court. I do not think that it is appropriate to adjourn this appeal until the proceedings before Driver FM are finalised one way or another. The questions in this appeal are whether his Honour made some error that is able to be corrected on an appeal or whether I should receive, in accordance with the principles for receiving further evidence on an appeal under s 27 of the Federal Court of Australia Act 1976 (Cth), some or all of the evidence upon which Ms Huang proposes to rely and then disturb the result arrived at by his Honour. 11 If I do receive some or all of that evidence that may or may not be a factor that may affect the further prosecution of the appeal on 31 March. One reason that the hearing was fixed for 31 March was because the appellant had said that a witness from whom she wished to lead fresh evidence on the appeal, a Ms Wang, was going overseas in early April for a year and would not be available to be cross-examined were the appellant allowed to call fresh evidence from Ms Wang. 12 I think that the reasons which induced the listing on 31 March to enable that issue to be dealt with are sufficiently relevant that I should not vacate the hearing on that date. The appellant's interests would not be served if such evidence were allowed to be called because Ms Wang would then not be available for a year, were I to adjourn. 13 I am not satisfied that the appellant's medical condition is such as would justify me in exercising my discretion to vacate the hearing, particularly in the circumstances which I have described. For those reasons I refuse the application for adjournment. 14 Because Mr Xiao has not been served with the application today he is not in a position to oppose or consent to dealing with Ms Wang's evidence or the application to call fresh evidence from Ms Wang today. For the above reasons I cannot entertain the application in his absence and I will not deal with it. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 30 June 2006 Applicant: In Person Solicitor for the First Respondent: University of New South Wales Fifth Respondent: No appearance Date of Hearing: 27 March 2006 Date of Judgment: 27 March 2006