Chan v Harris (includes Corrigendum dated 22 October 2010) [2010] FCA 1099 (12 October 2010)

Last Updated: 22 October 2010

FEDERAL COURT OF AUSTRALIA

Chan v Harris [2010] FCA 1099

Citation:		Chan v Harris [2010] FCA 1099
Parties:		YAU HANG CHAN v ALAN HARRIS
File number:		NSD 538 of 2010
Judge:		COWDROY J
Date of judgment:		12 October 2010
Corrigendum:		22 October 2010
Catchwords:		PRACTICE AND PROCEDURE – Interlocutory Decision – Motion for Disqualification of Judge – Whether Judge should disqualify self on the basis that the Judge had made orders involving the applicant in a previous proceeding – Apprehended bias – Held – No grounds for disqualification
Legislation:		Federal Court Rules (Cth) Social Security Act 1991 (Cth)
Cases cited:		Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] VSCA 35; [1999] 2 VR 573 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Gascor v Ellicott [1997] 1 VR 332 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 Locabail (U.K.) Ltd. v Bayfield Properties Ltd. [2000] QB 451 Re Lusink; Ex parte Shaw (1980) 32 ALR 47 R v Watson; Ex parte Armstrong (1976) 136 CLR 248 Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41
Date of hearing:	17 August 2010 and 30 September 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	57
Counsel for the Applicant:	The Applicant appeared in Person
Solicitor for the Respondent:	Corrs Chambers Westgarth

FEDERAL COURT OF AUSTRALIA

Chan v Harris [2010] FCA 1099

CORRIGENDUM

1. In paragraph five, delete the first sentence and replace with ‘By 9 June 2009 no records had been produced’.
2. In the second sentence of paragraph five, delete the word 'He' and replace with the words 'Mr Chan'.
3. In the third sentence of paragraph five, delete the word ‘further’.
   

I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 22 October 2010

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 538 of 2010

BETWEEN:	YAU HANG CHAN Applicant
AND:	ALAN HARRIS Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	12 OCTOBER 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for disqualification contained in the Applicant’s Notice of Motion filed 17 June 2010 be refused.
2. The application for leave to issue subpoenas against Michael Allen, Office of the Director General, Housing NSW; Mr Andrew Scipione, Office of the Commissioner, NSW Police Force; and Mr John Lawler, Head Office of the Australian Crime Commission be refused.
3. The application contained in the Applicant’s Notice of Motion filed 14 September 2010 to vary Order 3 and Order 4 made on 24 August 2010 be refused.
4. The application contained in the Applicant’s Notice of Motion filed 14 September 2010 that the Applicant be provided with copies of the transcript of proceedings NSD426/2009 and NSD538/2010 be refused.
5. The application contained in the Applicant’s Notice of Motion filed 14 September 2010 for a declaration that the Applicant is not liable for the costs of Local Employment and Training Solutions, Catholic Care and the Catholic Archdiocese of Sydney in matter NSD538/2010 be refused.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 538 of 2010

BETWEEN:	YAU HANG CHAN Applicant
AND:	ALAN HARRIS Respondent

JUDGE:	COWDROY J
DATE:	12 OCTOBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is a Notice of Motion filed by the applicant (‘Mr Chan’) seeking an order that the Court, constituted by myself, be disqualified from hearing his Application for Preliminary Discovery and three other notices of motion filed by Mr Chan. Mr Chan is not legally represented. I shall set out hereunder the background of the proceedings and thereafter consider Mr Chan’s application for disqualification.

Past Proceedings: NSD426/2009

2. On 14 May 2009 Mr Chan filed an application for preliminary discovery under O 15A r 3(2)(a), O 15 r 3(2)(b) and O 15 r 6 of the Federal Court Rules (‘the Rules’) against Vi-Manh Tran (‘Mr Tran’). In that application Mr Chan sought documents which may have been under Mr Tran’s control relating to Mr Chan in connection with Mr Chan’s application to Centrelink for benefits under the Social Security Act 1991 (Cth) (‘the Social Security Act’). Mr Tran was an employment consultant engaged by Adult Multicultural Education Services (‘AMES’), a service provider to whom Centrelink directs clients.
3. Such proceedings (hereafter referred to as ‘NSD426/2009’) were heard by the Court, constituted by myself.
4. On 3 June 2009 the Court made orders in NSD426/2009 ordering Mr Tran to provide discovery to Mr Chan of a variety of documents in respect of which Mr Chan sought access. The Court also ordered that such records were to be produced to the Registry by 10.00 am on 9 June 2009; that Mr Chan be given access to inspect the documents and that proceedings be adjourned until 12 June 2009.
5. By 9 June 2009 certain records had been produced but Mr Chan claimed that the production had been inadequate. He filed a Notice of Motion on 9 June 2009 seeking orders for contempt against Mr Tran. During a hearing on 12 June 2010, further documents were produced to the Court by Mr Tran and by another witness. The Court then made the following orders:
   1. Leave granted to the Applicant to withdraw the Notice of Motion dated 9 June 2009 seeking orders for contempt against the Respondent.
   2. No order be made as to the costs of the Notice of Motion dated 9 June 2009.
   3. Leave is granted to the Applicant to inspect in the Registry the Exhibits marked A-F tendered in Court today.
   4. The Application be otherwise dismissed.

The present proceedings

6. The application made by Mr Chan in the present proceedings (‘NSD538/2010’) filed 17 May 2010 also seeks preliminary discovery production of numerous documents by the respondent. The application is relevantly identical to that of NSD426/20009 except in its application to a different respondent. The respondent in NSD538/2010, Mr Alan Harris (‘Mr Harris’), is an employee of Catholic Care Sydney which operates Local Employment and Training Solutions (‘LETS’) programs.
7. A Statement of Claim filed by Mr Chan on 17 May 2010 in the present proceedings for preliminary discover alleges that a report prepared by LETS and provided to Centrelink contained fraudulent or defamatory allegations concerning Mr Chan and that such allegations are part of a conspiracy to injure Mr Chan.
8. Although not expressly stated, it appears that Mr Chan claims that the report which he believes exists may prejudice his entitlement to continue to receive the Newstart Allowance which in turn will result in him being unable to pay rent at his residence.
9. The Court observes that the filing of a statement of claim in an application for preliminary discovery is novel. The Court also observes that no affidavit as required by O 15A r 9 of the Rules has been filed, a matter which was brought to Mr Chan’s attention.
10. Prior to the first directions hearing Mr Chan filed two notices of motion. A motion filed on 9 June 2010 sought an order that leave be granted to Mr Chan to issue subpoenas against unspecified persons; that leave be granted to file and serve interrogatories; that Mr Harris be restrained from publishing any material that might affect Mr Chan’s rights to have a fair hearing; and a declaration that Mr Harris might be in ‘contempt of court’ if he attempted to interfere with the conduct of the proceedings by attempting to contact Mr Chan or demanding that Mr Chan meet with him.
11. The second motion was filed by Mr Chan on 10 June 2010. It seeks orders that Mr Chan be allowed to photocopy all documents in the court file pertaining to the proceedings in NSD538/2010; that Corrs Chambers Westgarth be injuncted from acting for Mr Harris; and that there be an injunction restraining Corrs Chambers Westgarth from obtaining access to the court file in relation to NSD538/2010 before the final determination of the application for an injunction.
12. The first directions hearing for the application took place on 16 June 2010. On that day orders were made relating to the further conduct of the proceedings and a further directions hearing was listed for 23 June 2010. It was during this directions hearing that Mr Chan made an informal request that I should not hear these proceedings.
13. Mr Chan did not appear at the directions hearings which took place on 23 June 2010, 28 June 2010 and 5 July 2010. Mr Chan forwarded by facsimile to the Court incomplete medical reports, and alleged that he could not attend for medical reasons. The name of the author of the medical reports, and other relevant details, had been redacted.
14. On 17 June 2010 Mr Chan filed a third motion seeking orders that the Court, constituted by myself, should not sit and determine NSD538/2010 and that Corrs Chambers Westgarth be restrained from communicating any information and documents obtained by them in NSD538/2010 to any person other than Mr Harris.
15. I mention for completeness two further developments. On 11 August 2010 Mr Chan filed a further notice of motion (the fourth motion) seeking various orders which are not relevant to the present proceedings. On 12 August 2010 Mr Harris filed a motion to strike out the application for want of prosecution pursuant to O 35A r 2(1)(f) of the Rules. Such application was on the basis of Mr Chan’s failure to adequately explain his absence from Court on 23 June, 28 June and 5 July 2010.

Basis for Disqualification Application

16. On 17 August 2010 Mr Chan’s motion for disqualification was heard in priority to all other motions. Mr Chan made comprehensive oral submissions lasting the whole of the Court day in support of his application that I should disqualify myself from constituting the Court hearing his claims. From his oral submissions, the Court was able to establish approximately 19 points relied upon by Mr Chan.
17. Mr Chan expressly disavowed any suggestion of actual bias on the part of the Court, or of any apprehended bias on the part of the Court. It is apparent that the basis of the application for my disqualification is Mr Chan’s belief that the listing of the current matter before the same judge who made a determination in NSD426/2009 is the result of a conspiracy perpetrated by persons unknown.

Matters relied upon by Mr Chan

18. I shall deal in outline with the reasons relied upon by Mr Chan, for convenience using numbering to accord with the 19 issues identified by the Court as being the grounds relied upon by Mr Chan to warrant my disqualification. They are as follows:
    1. Mr Chan states that he wishes to appeal, although out of time, the orders made in NSD426/2009. He provided the Court with a draft notice of appeal in those proceedings on the orders of the Court made on 12 June 2009. Mr Chan alleges that he endeavoured to file the notice shortly after the conclusion of the proceedings but was prevented from doing so because of advice from the Registry that since the decision was interlocutory, leave was required. The Court notes that there was no application made for leave to file an appeal out of time or for leave to appeal against the interlocutory decision. Accordingly there is no appeal pending in those proceedings.
    2. Mr Chan claims that the circumstances in NSD538/2010 have a close relationship to those in NSD426/2009 as there are conspirators against him who are the same or substantially the same involved in both proceedings.
    3. Mr Chan states that there was an incident involving the Registry of the Court which occurred in 2009 in which he was ejected by security staff from the Registry and from the Court building. Mr Chan did not suggest that this was a reason why I should not hear the proceedings but rather he claims that the listing before the same judge showed the proceedings were closely allied or connected.
    4. Mr Chan claimed that the listing of NSD426/2009 and NSD538/2010 before the same judge shows that there is corruption or possible corruption. Mr Chan did not suggest that I am involved in such corruption and was not prepared to identify who is involved in the alleged conduct. However he claimed that judges in this Court and in other courts are listed corruptly by unidentified persons in order to achieve a certain result in the cases before them. He suspects that it is part of the corruption which prevented him from lodging his appeal in NSD426/2009.
    5. Mr Chan alleged that I am an incompetent judge because I failed to discern a conspiracy to injure him perpetrated by the respondent in NSD426/2009. Further Mr Chan alleges that I am incompetent because I refused his application for an adjournment to a later date to enable him to read a document on 12 June 2009 and that the proceedings were concluded before he could read the document produced to him on the morning of 12 June 2009. He also alleges that I suspected the conspiracy in NSD426/2009 and that he wishes to have a more competent judge to deal with his proceedings.
    6. Mr Chan claims that I have received instructions from powerful people.
    7. Mr Chan claims that NSD426/2009 was terminated before he had an opportunity to read a document produced by Mr Tran. He claims there were indications of conspiracy and that the proceedings were dismissed without proper consideration of the conspiracy. Such ground is substantially the same as ground 5.
    8. Mr Chan claims that I am incompetent on the ground that the Court was not aware of the difference between the production of documents under subpoena and production of documents pursuant to a court order. As a result, either through ignorance or negligence, this case was prejudiced. He claims that the word ‘discovery’ has particular connotation which requires that a party must swear an affidavit verifying that all documents in his possession or control have been produced to the Court.
    9. Mr Chan claimed that serious cases deserve serious attention and that the conspiracy against him is a serious matter. He made allegations that a State Government Minister was involved in the alleged conspiracy to injure him and that NSD426/2009 should not have been terminated by the orders made in his favour for discovery.
    10. Mr Chan alleged that the Court did not understand the basis for the grant of an order for discovery under O 15A of the Rules.
    11. Mr Chan alleged that the conspiracy against him showed a lack of proper understanding of legal proceedings and that he was deliberately prevented, in NSD426/2009, from seeing public records. He alleged that there was a conspiracy to suppress facts; that false evidence had been given in the previous proceedings; and that as a result he was prejudiced.
    12. Mr Chan claimed that, whilst believing in my integrity and impartiality, I must not sit in NSD538/2010 because I had presided in NSD426/2009.
    13. Mr Chan claimed that even if listing of NSD426/2009 with NSD538/2010 was a mistake, an error of legal process or negligence had occurred which could be treated as a conspiracy. He alleged that in consequence of the conspiracy there could be contamination between the two proceedings.
    14. Mr Chan claimed that there would be a breach of legal principles if I presided in NSD538/2010, such principles being identified by him as legal protection of privileges; confidentiality of documents, admissibility and relevance under the Evidence Act; and protection against public prejudice.
    15. Mr Chan claimed that the respondents in NSD426/2009 were unwilling to produce documents and unwilling to comply with the orders of the Court which suggested contempt of court.
    16. Mr Chan claimed that there was disagreement concerning the extent of an order for discovery in NSD 426/2009.
    17. Mr Chan claimed that there had been contamination of the evidence because I had heard NSD426/2009. Mr Chan claimed that he was being forced, by the conspirators against him, to attempt to link NSD426/2009 with NSD538/2010. He claimed that the documents could be mixed up, which was a clever strategy on the part of the conspirators since he would not be able to prove that such contamination had occurred.
    18. Mr Chan claimed that there would be ‘public prejudice and embarrassment’ caused to him because of the conspiracy. He claimed that the conspirators were intelligent and could influence the listing of the proceedings or alternatively an error of law existed because NSD426/2009 was listed before the same judge as NSD538/2010.
    19. Mr Chan claimed that some of the conspirators may know me and it was more likely than not that his allegations were true because of the fact that both proceedings had been listed before me. He claimed that the conspirators could influence me and could prejudice a fair hearing. Mr Chan claimed that some person in the Attorney-General’s Department with whom I may have been regularly dealing was responsible but he was unable to name any such person.
19. Mr Chan also claimed that he was under surveillance; that he was under surveillance by conspirators whilst he was in the courtroom and that his home was under surveillance by the conspirators.
20. Mr Chan was granted leave to file an affidavit during the course of the hearing which attached 65 pages of press clippings and other materials on various topics including political and judicial corruption, the drug trafficking industry, mail-tampering, the Vatican, abuse in the Secret Services, various mafias and mental illness. The affidavit also attached photos and a map detailing the layout of Mr Chan’s home.
21. During the hearing Mr Chan brought to the Court’s attention a book which recounted an assassination attempt on the life of Giovanni Falcone. Mr Chan claimed that such event demonstrated that just as Giovanni Falcone’s persecutors could precisely track his whereabouts, so too could those conspiring against Mr Chan track his movements.
22. In support of his assertions as to the legal basis of his disqualification application, Mr Chan referred the Court to several authorities, none of which are germane to the claims he had been making. Further, Mr Chan asserted that he required to be provided with a copy of the transcript of proceedings NSD426/2009 and of NSD538/2010 or alternatively be allowed to make a photocopy of the transcripts. It was explained to Mr Chan that it was not the policy of this Court to provide parties, at the Court’s expense, with a copy of the transcript, nor was it the policy of the Court to allow the transcript to be photocopied. The Court however informed Mr Chan that he would be allowed to inspect the transcript in the Registry if he needed to have access to the transcript in order for him to make his submissions.
23. On 17 August 2010 the Court made the following orders:
    1. Judgment be reserved.
    2. Judgment is to be delivered at 10:15 am on 25 August 2010.
    3. The Applicant is to provide any further submissions in writing by no later than 5:00 pm on Thursday, 19 August 2010. Such submission is to be forwarded to the Court and to the Respondent by facsimile.
    4. The Applicant be granted liberty to inspect the court file of NSD538/2010 in the Registry.
    5. The Application and all Notices of Motion be adjourned to 10:15 am on 25 August 2010 for directions.

Subsequent directions hearing

24. Following the directions hearing on 17 August 2010, copies of the transcript from NSD426/2009 became available and were placed on the Court file. In the interest of giving Mr Chan full opportunity to use the available transcripts to make submissions, the Court re-listed the matter for directions on 24 August 2010. On that date the Court granted Mr Chan liberty to inspect the transcript and to make notes using it. Mr Chan was asked by the Court how much further time he needed to prepare any further affidavits and submissions. Incorporating those requests, the Court made the following orders:
    1. Orders 1 and 2 of the orders made by Cowdroy J on 17 August 2010 be vacated.
    2. The Applicant be granted liberty to inspect in the registry the transcripts of hearing contained in the file of proceedings NSD426/2009 and to make notes of that transcript.
    3. The Applicant is to file and serve on the Court and the Respondent any further affidavit evidence on which he seeks to rely by 14 September 2010.
    4. The Applicant is to file and serve on the Court and on the Respondent any further submissions by 21 September 2010.
    5. Judgment is this matter be reserved as and from 21 September 2010.
25. The copies of the transcripts of NSD426/2009 and of these proceedings up to the hearing on 17 August 2010 were made available for inspection by Mr Chan following the orders being made on 24 August 2010.

Mr Chan’s further Motion

26. On 14 September 2010 Mr Chan filed a Notice of Motion (‘Mr Chan’s fifth motion’) seeking the following:
    1. That order no.3 and also order no. 4 made on 24 August 2010 by Justice Cowdroy be varied.
    2. A declaration that the Applicant Yau Hang CHAN is not liable for the costs of Local Employment and Training Solutions (“LETS”), Catholic Care and the Catholic Archdiocese of Sydney, or each and any of them, in this Federal Court case NSD 538 of 2010. In the alternative, a declaration that LETS, Catholic Care and the Catholic Archdiocese of Sydney, and each and any of them, is a stranger in this Federal Court case NSD 538 of 2010. In the further alternative, an order to similar effect.
    3. That a copy of the transcripts of the proceedings of this Federal Court case no. NSD 538 of 2010 (Yau Hang CHAN v. Alan HARRIS) be provided to Mr. Yau Hang CHAN for these hearing dates: 16 June, 23 June, 5 July, 17 August and 24 August of 2010.
    4. That a copy of the transcripts of the proceedings heard 12 June 2009 in another Federal Court case no. NSD 426 of 2009 (Yau Hang CHAN v. Vi-Manh TRAN) be provided to Mr. Yau Hang CHAN.
27. Following the filing of such motion, Mr Chan also filed three affidavits affirmed 14 September, 28 September and 29 September 2010. Mr Chan also filed submissions on 21 September and 22 September 2010 being submissions No. 7 and 8 respectively. No leave had been given for the filing of any documents outside of the time limits fixed by the Orders of 24 August 2010.

Hearing of the Fifth Motion on 30 September 2010

28. Mr Chan’s fifth motion requesting, among other things, further time to prepare and to file affidavits and submissions, came before the Court on 30 September 2010. The respondent was granted leave not to be present in view of the fact that the Notice of Motion sought orders not relevant to his interests.
29. At the hearing on 30 September 2010, Mr Chan again complained that he required leave to photocopy the transcript of the proceedings so as to prepare his submissions concerning his application to disqualify myself from hearing his matter further. When it was pointed out to Mr Chan that he had been told on a previous occasion of the Court’s policy and that the transcript had been available to him for inspection at the Registry, he complained that due to its length he had not had sufficient opportunity to make his submissions. The Court reminded Mr Chan that he had been allowed more than one month in which to prepare his submissions and that during that time he had 26 business days upon which to visit the Registry and inspect the transcript. The Court also reminded Mr Chan that the dates contained in its orders regarding the filing of submissions and affidavits were dates selected by Mr Chan. Mr Chan again claimed he did not have sufficient time to prepare his submissions.
30. Mr Chan was then invited to make further oral submissions concerning his claim that the Court should disqualify itself. The claims he made were substantially those referred to on 17 August 2010, and which are detailed in [18] above. However, he alleged that there was a conspiracy involving members ‘of the government’; that the Department of Housing had been involved in the conspiracy involving the Mafia and drug runners; that some of the Court Registry staff were involved in the conspiracy and that it was because of the conspiracy I had been selected to hear these proceedings. When Mr Chan was asked what he expected the documents which he sought to be produced on discovery might demonstrate, he stated that they would show links between Mr Harris and the conspirators and that the documents might show their names.
31. Mr Chan then provided the Court with two additional written submissions, namely Submission No. 9 which related to his request that no order for costs be made against him, and Submission No. 10 which related to the conspiracy involving the Department of Housing.
32. The affidavit of Mr Chan affirmed on 28 September 2010 contains no narrative, merely attaching newspaper clippings and other articles. One relates to alleged security breaches of the transcript provider in respect of an incident involving a former judge of this Court. Another relates to an Iraq war casualty study. A third document relates to an article referring to President Bush and misinformation concerning the events of September 11. The affidavit also attaches a Ministerial Correspondence System Cover Sheet which relates to a dispute between the Department of Housing and Mr Chan that took place in May 2005 concerning the smoke detector at Mr Chan’s residence. Mr Chan submitted at the hearing that this was relevant because the dispute with the conspirators arises from this matter and that the conspirators are trying to have him forced out of his public housing.
33. The affidavit of 29 September 2010 again contains virtually no narrative and attaches various articles including an extract from Sydney metropolitan newspaper ‘MX’ relating to an increase in cannabis production by Britons and various newspaper articles regarding the mafia. Also attached is a report concerning proceedings in the New South Wales Administrative Decisions Tribunal General Division between the Commissioner of Police and an unknown person. Also attached is the front page of a Corruption and Crime Commission Report of Western Australia entitled Protecting Personal Data in a Public Sector. Mr Chan claimed that all these matters were relevant to his claim of a conspiracy.
34. Mr Chan then sought the leave of the Court to issue three subpoenas. One subpoena was addressed the Department of Housing, another to the Commissioner of Police and a third was addressed to Mr John Lawler, Head Office of the Australian Crime Commission. Mr Chan claimed that the production of documents by these persons would assist in his claim to expose the conspiracy against him.
35. Mr Chan was asked what claims he sought to make ultimately against Mr Harris. Mr Chan claimed that there were various breaches of the Social Security Act involving Mr Harris and that these were relevant to his claim.

Findings
Mr Chan’s Fifth Motion

36. As to the Notice of Motion filed on 14 September 2010, the Court sees no reason to vacate Orders 3 and 4 regarding the dates by which Mr Chan was to have filed further affidavits and submissions. Mr Chan has had more than adequate time to prepare submissions in these proceedings, which now have become far removed from the issue which originated the application, that being an application for preliminary discovery.
37. In respect of Order 2 sought by Mr Chan’s fifth motion, the Court declines to make any order for costs. It was explained to Mr Chan that such an application would need to be made, if at all, at the end of the hearing and that his application for costs was premature.
38. As to the proposed Orders 3 and 4, the Court has previously explained to Mr Chan that the Court will not accede to this request and accordingly the Court refuses to make any such orders.
39. With regard to the issuing of subpoenas, the Court refuses to grant the leave requested. The current proceedings are an application for preliminary discovery. Such an occasion is not to be used for the purpose of trawling through documentation of third parties who are not nominated as respondents to the preliminary discover application. Accordingly the Court would regard it as an abuse of its process if this opportunity was taken to seek leave to issue subpoenas.

Findings: Disqualification

40. The Court now turns to the issue of disqualification.
41. An application for disqualification of a judge is often made upon the ground of bias or of the apprehension of bias. In Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, Gleeson CJ, McHugh, Gummow and Hayne JJ said at [6]:

... [A] judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. [Footnote omitted]

42. Their Honours at [8] explained the application of the principle of apprehended bias as follows:

Its application requires two steps. First, it requires the identification of what it is said might lead a judge... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge... has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.

43. Similar principles have been expounded by the High Court in other proceedings: see for example R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Re Lusink; Ex parte Shaw (1980) 32 ALR 47; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488. Numerous other authorities are conveniently referred to in the decision of the New South Wales Court of Appeal in Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43 at [12]- [21].
44. I am satisfied that Mr Chan’s understanding of the doctrine of apprehended bias is misconceived. The claims he has made, as he acknowledged, arise from the fact that because I heard the application for preliminary discovery in NSD426/2009, I should not hear NSD538/2010. His claims properly fall within the doctrine of apprehended bias.
45. It is instructive to consider the relief sought by Mr Chan in his application filed in NSD426/2009. Mr Chan sought the following orders:
    1. An order requiring the Respondent to attend before the Court to be examined under Order 15A r.3(2)(a) of Federal Court Rules in relation to the description of all the person(s) concerned (“Person(s) Concerned”) relating to the facts pleaded in the accompanying Statement of Claim. The Person(s) Concerned include: all the author(s) of the AMES Report, all the person(s) instructing or influencing the said author(s) to write the AMES Report, all the person(s) instructing or influencing the submission of the AMES Report to Centrelink, all the person(s) involved generally in any pleading of the accompanying Statement of Claim.
    2. An order requiring the Respondent to make discovery, under Order 15A r.3(2)(b) of Federal Court Rules, to the Applicant of all documents which are or have been in the Respondent’s possession relating to the description of the said Person(s) Concerned.
    3. An order requiring the Respondent to make discovery, under Order 15A r.6 of Federal Court Rules, to the Applicant of any document of the kind described in Order 15A r.6(c) of Federal Court Rules.
    4. An order for the Respondent to produce to the Applicant a copy of all the documents so discovered in 2. and 3. above.
46. The transcript of those proceedings records that when Mr Chan’s application in NSD426/2009 came before the Court on 3 June 2009, Mr Tran did not appear. However the Court made the following orders:
    1. The Respondent provide discovery to the Applicant of documents, pursuant to O 15A r 3(2)(b) of the Federal Court Rules.
    2. Documents (including voice records) to be discovered are:

(a) All participation failure reports and related documents written to Centrelink mentioning the Applicant by any staff or agent of Adult Multicultural Education Services, Adult Multicultural Education Services Employment and any other business entities of different names but relating to the same Adult Multicultural Education Services that has an office on Level 1, No 2 Meredith Street, Bankstown, NSW 2200.
(b) All voice and written records of the telephone conference involving the Respondent, the Centrelink staff whose first name is Brooke and the Applicant on 7 May 2009.
(c) All voice and written records of the telephone conversation involving Centrelink staff whose first name is Soniya and the Applicant on 18 May 2009.

3. Such records are to be produced to the Registry of the Court by 10 am on 9 June 2009.
4. The Applicant be given the right to inspect the documents produced by the Respondent.
5. Proceedings be adjourned until 9.30 am on 12 June 2009.
47. Subsequently, on 12 June 2009 Mr Tran appeared and produced a number of documents in accordance with the orders made on 3 June 2009. Mr Tran and Mr John Carter, Acting Operations Manager for AMES, were then both extensively cross-examined by Mr Chan on 12 June 2009 relating to the documents which were produced in response to Mr Chan’s claim for preliminary discovery. During the course of the hearing further documents were produced to Mr Chan in accordance with the Court’s previous orders. Thereafter the Court made the orders in NSD426/2009 as set out in [5] above.
48. There are no current proceedings involving any claim arising out of the production of the documents ordered to be produced in matter NSD426/2009.

Basis for Disqualification

49. A specific reason or reasons must be shown before a judge should decline to hear a proceeding and from being relieved of such responsibility. Such situations may be the fact that the judge is known personally to the parties, or has a close association with persons who are members of a party or witness; where the judge would have a pecuniary or proprietary interest in the outcome; where he has displayed actual bias; or where there are grounds for believing there is an apprehension of bias. There is no other basis which permits a judge disqualifying himself from hearing proceedings allocated to him for determination.
50. In the presented proceedings Mr Chan has expressly disavowed any actual bias or any apprehension of bias by the Court. In Re J.R.L. at 351, Mason J (as he then was) referring to the ground of apprehended bias said:

The problem is governed by the principle that a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues (Reg. v. Watson; Ex parte Armstrong (1976) 136 CLR 248, at pp 258-263: Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294). This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.
It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party.

51. Mason J then addressed the question of what principle should apply where the same judge has previously determined a matter and said at 352:

There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established” (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

52. In Clenae Pty Ltd v Australia and New Zealand Banking Group Ltd [1999] VSCA 35; [1999] 2 VR 573, Calloway JA said at [89]:

As a general rule, it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application.

53. The essential basis upon which Mr Chan asserts that I should not sit in these proceedings arises from the fact that I presided in NSD426/2009. Mr Chan’s complaint appears to be that despite the orders made by the Court, Mr Tran had not produced all the relevant documents that were in his possession. No adverse comment was made of Mr Chan during that hearing, no question of credit of Mr Chan arose for determination, and Mr Chan was granted the orders for discovery that he had sought.
54. Although Mr Chan claimed that his hearing was ‘rushed’ and that he should have been afforded further time, the transcript records that Mr Chan had every opportunity to make his submissions to the Court and had exhaustively cross-examined the witnesses. The conduct of the hearing led the Court to observe in the transcript at page 113, line 43:

HIS HONOUR: ... Mr Chan, you have received from the court great indulgence today. You have asked questions which have gone well beyond what you were strictly entitled to, but I have allowed it so that you can formulate your own thought as to what course, if any, you wish to take in the future. Do you understand that?
Mr CHAN: Yes, I understand.

55. The observations of the Court of Appeal (United Kingdom) in Locabail (U.K.) Ltd. v Bayfield Properties Ltd. [2000] QB 451 at 480 are appropriate. There the Court said:

The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case.

56. The above principles have, in substance, been recently affirmed by the Full Court in Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [25]- [34]. Significantly, the Full Court referred to the decision of the Victorian Court of Appeal in Gascor v Ellicott [1997] 1 VR 332 at 348 in which Ormiston JA doubted whether even a judge having made a decision on a factual issue on a previous matter would necessarily disqualify him/her from deciding the same factual issue in a subsequent case (see Cabcharge at [34]).
57. No factual determination has been made in NSD426/2009 upon which Mr Chan bases his claim for disqualification. The Court is satisfied that since no findings were ever made against Mr Chan, he gave no oral evidence, and no issue of his credit arose, no reasonable ground of apprehended bias exists. Since no other basis exists for disqualification, the application for disqualification is refused.
    

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 12 October 2010