Yang v American International Assurance Company (Australia) Limited [2007] FCA 993

FEDERAL COURT OF AUSTRALIA

Yang v American International Assurance Company (Australia) Limited [2007] FCA 993 JUN YANG AND AULIAN ENTERPRISE PTY LIMITED v AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED NSD 97 OF 2005

COWDROY J

28 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 97 OF 2005

BETWEEN: JUN YANG

First Applicant

AULIAN ENTERPRISE PTY LIMITED

Second Applicant

AND: AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED

Respondent

JUDGE: COWDROY J DATE OF ORDER: 28 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The applicants file and serve all affidavits upon which they rely by 4.00 pm on 6 June 2007. 2. The hearing of the motion be adjourned to 2.15 pm on 8 June 2007. 3. Orders in relation to costs be adjourned until 8 June 2007.

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 97 OF 2005

BETWEEN: JUN YANG

First Applicant

AULIAN ENTERPRISE PTY LIMITED

Second Applicant

AND: AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED

Respondent

JUDGE: COWDROY J

DATE: 28 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Before the Court is a notice of motion filed by the respondent on 16 May 2007 seeking orders that the proceedings be dismissed pursuant to Order 20 Rule 2 (c) of the Federal Court Rules on the ground that the proceedings are an abuse of process of the Court. An order for the payment of costs on an indemnity basis is also sought. 2 The proceedings were commenced on 1 October 2003. Between 1 October 2003 and 16 December 2004, five directions hearings were held. On 16 December 2004 the Court ordered that applicants involved in the proceedings institute separate proceedings. These particular proceedings were instituted on 21 January 2005. 3 Between 16 December 2004 and 4 April 2007 there have been 23 directions hearings. On 14 December 2005 Wilcox J made an order that the applicants file any evidence by 24 February 2006. No evidence was filed. The next directions hearing was held on 29 March 2006. On that date the Court ordered that the proceedings stand over until 13 April 2006. On that day the proceedings were again stood over until 1 May 2006. On 1 May 2006 the proceedings were adjourned until 29 May 2006. On 29 May the proceedings were again adjourned until 10 July 2006. On this day the proceedings were stood over until 26 July 2006. It should be noted that many of the directions hearings referred to above related to difficulties with discovery on the part of each party. 4 On 26 July 2006 the Court ordered that the applicants file a statement setting out the issues in dispute concerning the respondent's discovery by 1 August 2006. The proceedings were listed for further directions on 9 August 2006. On this date directions were made with regard to issues of discovery and a further directions hearing was fixed for 21 August 2006. On 21 August 2006 the proceedings were stood over until 4 September 2006. 5 On 4 September 2006 the proceedings were again adjourned until 19 September 2006. On this date the applicants were ordered to file and serve their affidavits regarding liability by 29 January 2007. A further directions hearing was listed for 21 December 2006. The Court also ordered that a statement of each issue and the respondent's answer be filed within seven days prior to the next directions hearing. No documents were filed. In fact, the last day any document was filed in the proceedings by the applicant, save for an affidavit being relied upon in this motion, was 20 June 2006. 6 On 21 December 2006 the Court ordered the applicants to file and serve their affidavits on or before 30 March 2007, a hearing date was fixed and a further directions hearing was fixed for 4 April 2007. On 4 April 2007 the Court ordered the applicant to file and serve its evidence by 9 July 2007. The Court again directed the applicants to file a statement of issues by 9 August 2007. Order 8 of the orders made on 4 April 2007 stated: 'In the event that the applicants fails to comply with order 1, the respondent is granted leave to apply to have the proceedings struck out and for an order for indemnity costs.' 7 No evidence was filed by the applicants as directed and on 16 May 2007 the matter was re-listed at the request of the respondent who sought leave to file a notice of motion to strike out the application. 8 The Court set down the motion for hearing on 28 May 2007 and directed that any affidavit explaining non compliance with the orders of the Court be filed by 24 May 2007. The applicant's solicitor Mr Lawrence Liwei Lin filed an affidavit sworn on 24 May 2007. Such affidavit refers to difficulties which he has experienced in relation to translation from Mandarin to English. He also states that he was absent from work and on holiday between 25 December 2006 and 23 January 2007. Mr Lin referred to the conduct of discovery at the offices of the respondent as another reason for the delay. 9 Mr Lin has also referred to the large work load of his practice which includes hearings in the District Court and Family Court. He states that he has made genuine attempts to comply with the orders of the Court but because of the above it has been difficult to obtain instructions to provide the necessary evidence. A further extension of time without any limit is sought.