FEDERAL COURT OF AUSTRALIA

Huang v University of New South Wales [2010] FCA 738

REASONS FOR JUDGMENT

BUCHANAN J:

1                          This judgment deals with two related matters. The first is a notice of motion filed by the appellant (Ms Huang) in appeal proceedings commenced in this Court (NSD 307 of 2010). The notice of motion seeks, in essence, an order staying the hearing of proceedings which are presently on foot in the Federal Magistrates Court of Australia (“the FMCA”) until after the hearing of Ms Huang’s appeal in this Court. The second matter involves an application for leave to appeal (NSD 810 of 2010) by which Ms Huang seeks leave to appeal against a judgment of the FMCA in which it declined to vacate hearing dates set down in the abovementioned FMCA proceedings.  Ms Huang also filed a notice of motion in the proceedings for leave to appeal (NSD 810 of 2010) identical in terms to the notice of motion filed in the appeal proceedings (NSD 307 of 2010).  All three applications/notices of motion seek the same outcome.  As very similar considerations arise in all matters, I will deal with them all in the present judgment.

            Notice of Motion in NSD 307 of 2010

2                          The motion is appropriate to be heard by a single judge. Under s 25(2B)(ab) of the Federal Court of Australia Act 1976 (Cth), in the exercise of the Court’s appellate jurisdiction a single judge may make an interlocutory order pending, or after, the determination of an appeal to the Court.

3                          There is no doubt that the Court has power to preserve the subject matter of an appeal.  In the case of an appeal from a judge of the Court, the Court has clear power to grant a stay: Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Paringa Mining & Exploration Co PLC v North Flinders Mines Ltd (No 2) (1988) 81 ALR 609; National Australia Bank Ltd v Norman [2009] FCAFC 13.  Although the stay sought by Ms Huang is not sought in relation to proceedings in this Court, but to proceedings in the FMCA, in my view the Federal Court would have power to stay the proceedings in the FMCA in an appropriate case, as part of the Court’s supervisory jurisdiction (see, for example, Walton v Gardiner (1993) 177 CLR 378), but it is not necessary to deal with the matter that way, for the reasons which follow.

4                          Appeal proceedings NSD 307 of 2010 are listed to be heard by a Full Court on 9 August 2010. The appeal arises from a judgment of this Court delivered by Emmett J on 12 March 2010 in which he dismissed an application by Ms Huang that the Court make an order under s 9A of the Foreign Evidence Act 1994 (Cth) (“the Foreign Evidence Act”).  The application was that a letter of request be issued asking the authorities in the Republic of Korea to take evidence for use by Ms Huang in the proceedings in the FMCA.  Ms Huang sought the order for the purpose of obtaining evidence from Professor Daljae Park, currently residing in the Republic of Korea.  The FMCA does not have power to make the order sought by Ms Huang but this Court does and may do so in aid of proceedings in the FMCA. 

5                          Emmett J dismissed Ms Huang’s application because the proceedings in which she wished to use Professor Park’s evidence were listed for hearing before the FMCA on 29 March 2010 and, as she had made no application to the FMCA for that hearing to be adjourned (despite his Honour allowing time for that to occur) the order she sought would be of no utility.  No procedure available under the Foreign Evidence Act would serve to provide evidence for use by Ms Huang in the short time before the hearing was to occur.  The merits of Emmett J’s conclusion do not require attention at the present time.  Issues of that kind are the subject of the appeal which will be heard on 9 August next.

6                          After Emmett J’s judgment was delivered Ms Huang successfully applied for the proceedings before the FMCA to be adjourned, although the adjournment was not granted for a reason connected with her application to have evidence taken from Professor Park.  It was granted because the FMCA was concerned that she may lack capacity to conduct the proceedings before the FMCA herself, as she proposed to do.  The FMCA proceedings are now listed for hearing for four days commencing on 26 July 2010.  On 1 July 2010, Ms Huang made a further application to the FMCA that the dates for hearing to commence on 26 July 2010 be vacated.  However, the FMCA declined to vacate the hearing dates for reasons set out in a judgment given on that day: Huang v University of New South Wales & Anor (No 4) [2010] FMCA 474.  Principally, the decision to maintain the dates fixed for hearing was based on a conclusion that Ms Huang was capable of conducting the proceedings.  At the same time, the FMCA observed that “until the Full Court reverses the orders of Emmett J, there is no impediment to this matter proceeding”.  Later observations appear to more categorically reject any reliance by Ms Huang on the application by her under the Foreign Evidence Act which was dealt with by Emmett  J. 

7                          It is clear that the proceedings before the FMCA should not be concluded before the appeal is determined.  If the appeal succeeded Ms Huang may be entitled to lead evidence in those proceedings obtained from Professor Park in accordance with the procedures under the Foreign Evidence Act.  That possibility must be respected until the issue is dealt with by the Full Court.  However, that does not mean necessarily that the proceedings should not commence.

8                          The fact that the appeal listed for hearing on 9 August 2010 relates to an application concerning evidence sought to be adduced in the FMCA proceedings does not mean that the FMCA proceedings cannot commence on 26 July 2010 and, if it is efficient to do so, proceed to deal with all matters except those which would arise if the appeal succeeds.  If the appeal does not succeed the FMCA will have the material needed to decide the proceedings before it.  If the appeal does succeed Ms Huang may be entitled to lead further evidence before the FMCA in the proceedings.  Obviously, the FMCA should not deliver a judgment against Ms Huang until it is clear what the result of the appeal will be.  However, within that obvious constraint, it should be left to the FMCA to determine the most efficient course for the proceedings before it, including going so far as it can until the result of the appeal is available, if that is the most efficient course to take. 

9                          I do not believe it is necessary to make any order restraining the FMCA from delivering judgment until the appeal is decided.  The necessity to do so could be raised again if it became clear that the FMCA proposed to decide the matter before it before the appeal was determined.

10                        Ms Huang argued that she did not have time to prepare for the proceedings in the FMCA if they were to be heard on 26 July 2010.  Ms Huang says that she suffers from a mental condition, the effect of which is that she can “only deal with one task at a time”.  The matters to be relied upon by Ms Huang in the proceedings in the FMCA were originally raised in an application filed in that court on 21 August 2003 (the procedural history was referred to in Huang v University of New South Wales & Anor [2008] FMCA 1578 at [4]-[6]).  Her claims were dismissed by the FMCA but remitted by a judge of this Court, after an appeal, for further attention by the FMCA.  The claims have therefore been on foot for a very long time.  There appears to have been ample time for Ms Huang to prepare for a hearing of her application.

11                        Ms Huang also suggested that she could not adequately prepare for the appeal if her attention was taken up with the FMCA proceedings.  I note that any proceedings in the FMCA will conclude at least 11 days before the hearing of the appeal.  I do not accept that there is any unacceptable prejudice to Ms Huang in conducting the proceedings before the FMCA, so far as they can be taken, and then preparing for the limited issue which arises on the appeal. 

12                        In order to preserve Ms Huang’s rights I will not dismiss her motion at present.  The motion will be adjourned to the hearing of the appeal.  I will grant liberty to apply on short notice.  Costs will be reserved.           

            Leave to appeal application in NSD 810 of 2010

13                        On the same day (1 July 2010) that the FMCA declined to adjourn the proceedings listed for hearing on 26 – 29 July 2010, Ms Huang applied for leave to appeal against that decision.  On the following day (2 July 2010), Ms Huang filed a notice of motion identical in terms to the notice of motion filed in appeal proceedings NSD 307 of 2010. In both her leave to appeal application and in her notice of motion in that matter Ms Huang sought an order staying the FMCA proceedings listed for hearing on 26 July 2010 until the appeal before the Court (NSD 307 of 2010) is determined.  She relied on the same arguments.  What I have said about the notice of motion with which I have already dealt is sufficient to deal with those matters. 

14                        She also faces a further difficulty.  The tests for the grant of leave to appeal against an interlocutory order are well established (see Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397).  The question is whether there is an arguable case of error and whether the appellant would suffer serious prejudice supposing the decision to be wrong.  Procedural orders are less likely to attract a grant of leave.  No error appears in the judgment of the FMCA to proceed with the hearing listed for 26 – 29 July 2010 provided it is understood that the outcome of the appeal listed for hearing on 9 August 2010 may not be compromised by a decision of the FMCA unfavourable to Ms Huang before that appeal is determined.  In view of the course I propose to take in relation to the other motion I am satisfied that Ms Huang will not be prejudiced if leave to appeal is refused.         

15                        I will therefore order that leave to appeal be refused and that the motion in NSD 810 of 2010 be dismissed.  There appear to be no additional costs incurred in relation to the application for leave to appeal or the motion connected with it.  I make no order as to costs of the application for leave to appeal.

Associate:

Dated:         15 July 2010