FEDERAL COURT OF AUSTRALIA
Yang v American International Assurance Company (Australia) Limited [2007] FCA 994
NSD 97 OF 2005
COWDROY J
8 JUNE 2007
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 97 OF 2005 |
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BETWEEN: |
JUN YANG First Applicant
AULIAN ENTERPRISE PTY LIMITED Second Applicant
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AND: |
AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED Respondent
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COWDROY J |
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DATE OF ORDER: |
8 JUNE 2007 |
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WHERE MADE: |
SYDNEY |
THE COURT ORDERS THAT:
1. The hearing is confirmed to commence on 27 August 2007.
2. The evidence to be relied upon by the applicants is that contained in their affidavits filed to date.
3. The respondent have until Monday 16 July 2007 to file any affidavits in response.
4. The applicants have until Monday 30 July 2007 to file any evidence in reply to the respondent’s evidence.
5. The costs of the respondent’s motion to strike out the proceedings be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 97 OF 2005 |
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BETWEEN: |
JUN YANG First Applicant
AULIAN ENTERPRISE PTY LIMITED Second Applicant
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AND: |
AMERICAN INTERNATIONAL ASSURANCE COMPANY (AUSTRALIA) LIMITED Respondent
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JUDGE: |
COWDROY J |
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DATE: |
8 JUNE 2007 |
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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 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 took place on 28 May 2007. In summary the motion was brought because of the persistent failure of the applicants to file the evidence upon which they rely in support of their applications. The relevant facts are set out in the Court’s decision given on 28 May 2007: see Yang v American International Assurance Company (Australia) Limited [2007] FCA 993.
2 As affidavits have been filed, it would be inappropriate for the Court to dismiss the proceedings. Accordingly the matter will proceed to hearing on 27 August 2007 on the basis only of the evidence of the applicants which is now before the Court. There is, however, of course the possibility that evidence in reply to any affidavits of the respondent may be required. The Court will make an order in relation to the provision of such evidence.
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I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy . |
Associate:
Dated: 8 June 2007
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Counsel for the Applicant: |
I. Archibald |
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Solicitor for the Applicant: |
Accentro Legal |
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Counsel for the Respondent: |
B. Shields |
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Solicitor for the Respondent: |
Ebsworth & Ebsworth |
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Date of Hearing: |
8 June 2007 |
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Date of Judgment: |
8 June 2007 |
