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.