Chan v Harris (No. 2) [2011] FCA 143 (24 February 2011)

Last Updated: 24 February 2011

FEDERAL COURT OF AUSTRALIA

Chan v Harris (No. 2) [2011] FCA 143

Citation:		Chan v Harris (No. 2) [2011] FCA 143
Parties:		YAU HANG CHAN v ALAN HARRIS
File number(s):		NSD 1372 of 2010
Judge:		KATZMANN J
Date of judgment:		24 February 2011
Catchwords:		PRACTICE AND PROCEDURE – judgments and orders – application for stay of interlocutory judgment – whether judgment discloses error– whether appeal reasonably arguable – no leave to appeal – no special or exceptional circumstances – appeal not reasonably arguable PRACTICE AND PROCEDURE – unparticularised and unsubstantiated allegation of judicial misconduct – no application for disqualification – no reasonable apprehension of bias PRACTICE AND PROCEDURE – adjournment application – whether adequate opportunity given to prepare or present case – adjournment refused PRACTICE AND PROCEDURE – notice of appearance – submitting appearance
Legislation:		Federal Court of Australia Act 1976 (Cth) s 20(1A); s 24(1A); s 37M; s 38 Federal Court Rules O 9 r 3(1); O 19 r 1(2); O 52 r 10 (2A)(b); O 52 r 17 High Court Rules r 23.02 Uniform Civil Procedure Rules 2005 (NSW) r 6.11
Cases cited:		Advanced Building Systems v Ramset Fasteners (Aust) Pty Ltd [1997] HCA 24; (1997) 145 ALR 121 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Bainton v Rajski (1992) 29 NSWLR 539 Barton v Walker [1979] 2 NSWLR 740 Beljajev v Director of Public Prosecutions [1991] HCA 16; (1991) 173 CLR 28 Chan v Harris [2010] FCA 1428 Chan v Harris (No. 2) [2010] FCA 1393 Chan v Harris [2010] FCA 1099 Deangrove Pty Ltd v Commonwealth Bank of Australia [2002] FCA 1352 Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 Frugtniet v State Bank of New South Wales [1999] NSWCA 458 Henderson v Amadio (No. 3) (1996) 65 FCR 66 Jordan v Smart [1961] NSWR 735 Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 Re Middle Harbour Investment Ltd (In Liq) (unreported, NSW Court of Appeal, 15 December 1976) Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 Scott v Handley [1999] FCA 404; (1999) 58 ALD 373 Sullivan v Department of Transport (1978) 1 ALD 383 Trust Co of Australia Limited v Perpetual Trustees WA Limited (No. P2) (1995) 36 NSWLR 654
Date of hearing:	9 February 2011
Date of last submissions:	16 February 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category	Catchwords
Number of paragraphs:	71
Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for Mr Harris:	Corrs Chambers Westgarth (submitting appearance)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1372 of 2010

BETWEEN:	YAU HANG CHAN Applicant
AND:	ALAN HARRIS Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	24 FEBRUARY 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The orders sought in prayers three and four of the notice of motion filed by the applicant on 24 November 2010 are refused.
2. The notice of motion filed by the applicant on 28 January 2011 is dismissed.
3. The notice of motion filed by the applicant on 2 February 2011 is also dismissed.
   

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 1372 of 2010

BETWEEN:	YAU HANG CHAN Applicant
AND:	ALAN HARRIS Respondent

JUDGE:	KATZMANN J
DATE:	24 FEBRUARY 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Chan, has filed four notices of motion in connection with an appeal he wishes to bring from a judgment of this Court in which the primary judge refused an application that he recuse himself and made several other orders each of which was unfavourable to Mr Chan: Chan v Harris [2010] FCA 1099 (“the recusal judgment”). The initiating process was concerned with an application for preliminary discovery. In the proceeding before the primary judge Mr Chan alleged that a report prepared by Local Employment and Training Solutions (“LETS”), where the respondent, Mr Harris, apparently works, which was provided to Centrelink, contained fraudulent or defamatory allegations about him and those allegations are part of a conspiracy to injure him. The primary judge observed (at [8]) that, “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”. On 15 December 2010, his Honour delivered final judgment dismissing Mr Chan’s application for want of prosecution: Chan v Harris (No. 2) [2010] FCA 1393.
2. This judgment is concerned with prayers three and four of the second notice of motion filed on 24 November 2010 and the third and fourth notices of motion filed on 28 January and 2 February 2011. I have already dealt with prayer 2 of the second notice of motion. See Chan v Harris [2010] FCA 1428 at [12]. The remaining prayers in the first and second notices of motion are listed for hearing on 10 March 2011. They concern an application for a declaration that s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) is unconstitutional and, in the alternative, for leave to appeal the recusal judgment.
3. The applicant filed several affidavits, purportedly in support of the various notices of motion. They were affirmed on 1, 24 and 26 November 2010; 3, 6, 7, 8 and 10 December 2010; 28 and 31 January 2011; and 1 and 7 February 2011. None of these was read, but insofar as anything included in them has a bearing on the issues raised in this judgment, I have treated them as if they had been read.
4. Before I deal with the subject matter of the motions, there are two matters to which I must attend. The first is Mr Chan’s application for adjournment.

The adjournment application

5. At a directions hearing on 2 February I fixed a timetable for the filing and serving of further evidence and written submissions and listed for hearing on 9 February 2011 the matters that are the subject of this judgment. No further evidence was filed. Written submissions (of five and a half pages) were filed outside the timetable but they did not address the issues relevant to the hearing. This was the fourth set of written submissions Mr Chan filed purportedly in support of his various notices of motion.
6. When the case was called on for hearing on 9 February Mr Chan applied for an adjournment. He addressed the Court for approximately 1½ hours. I refused the application, indicating at the time that I would give my reasons later. These are my reasons.
7. With one exception, none of the matters Mr Chan raised was relevant to the question of the adjournment. The reason he gave was that the recent heat wave had interfered with his preparation. To an affidavit he affirmed on 7 February (which I shall take as having been read) he attached a newspaper report entitled “Finally some relief after hottest night in history”. He stated that as a result of “this record-breaking heatwave” and the fact that he has no air-conditioning in his home, he had been unable to work efficiently and was “now running late” in his preparation for the hearing on 9 February. He described his situation as having been brought about by “some sort of a force majeure or an act of God that I cannot overcome”. He also contended that, as a Newstart recipient, he lacked the means to rent an air-conditioned place for a few days in order to avoid the heat wave and continue his preparation.
8. In his written submissions Mr Chan referred to a number of authorities to support an argument that, absent an adjournment, he would be deprived of an adequate opportunity to prepare his case for hearing. I accept the general principles articulated in these authorities. The Court certainly has the power to adjourn a hearing in appropriate circumstances, as Mr Chan submitted. So, too, depriving a party of an adequate opportunity to prepare or present his or her case may amount to a denial of procedural fairness: see, e.g. Sullivan v Department of Transport (1978) 1 ALD 383. The question here, however, is not one of principle, but of the application of established principles.
9. In the particular circumstances of this case, I am not satisfied that the applicant was denied an opportunity to prepare for the hearing.
10. Although I certainly accept that there was a heat wave and I also accept that he has very limited means, there is no good reason why Mr Chan could not have taken himself to an air-conditioned public library to attend to the necessary preparation. Neither is there any reason why – instead of spending the time researching and preparing the submissions he did file – he did not use the time to prepare for the hearing of the motions. In my view, Mr Chan had sufficient opportunity to prepare for the hearing. In coming to this conclusion I took into account the subject matter of the notices of motion and the fact that Mr Chan had already filed a number of submissions and affidavits. I also took into account the fact that the judgment the subject of the stay application sought in the fourth notice of motion was delivered on 15 December last year and on 17 December I indicated to Mr Chan that if he wished to appeal that judgment he required leave and should identify the grounds.
11. Citing a number of authorities, Mr Chan submitted that an “adjournment should ordinarily be granted” where refusal would seriously prejudice a party. There are several difficulties with this submission. In the first place, the authorities he cited do not stand for such a proposition and all are distinguishable on the facts. One (Jordan v Smart [1961] NSWR 735) was concerned with the effect of a refusal on a criminal proceeding. Three of them (Frugtniet v State Bank of New South Wales [1999] NSWCA 458; Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 (“Sali”) and Scott v Handley [1999] FCA 404; (1999) 58 ALD 373) were concerned with a situation in which a refusal of the adjournment had the effect of terminating the proceeding. That is not this case. In the fifth (Deangrove Pty Ltd v Commonwealth Bank of Australia [2002] FCA 1352) the application was made a month before the hearing date, not on the day of the hearing. Furthermore, in Deangrove the Court relied on Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, which the High Court disapproved in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175. Secondly, whilst it might have been inconvenient for him, I was not satisfied that refusing an adjournment would seriously prejudice Mr Chan and, for the reasons I have given, any prejudice he might suffer is largely, if not entirely, of his own making. Thirdly, the submission overlooks the repeated references in the authorities he cited to the interests of the applicant not being the only relevant consideration. For example, the majority in Sali (at 843) said that the court is also entitled to consider “the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”. These principles are given statutory force by the provisions of Part VB of the Act. No longer are these considerations merely relevant. They are mandatory.
12. In all the circumstances, I did not consider that it would further the overarching purpose of the civil practice and procedure provisions of the Act and the Rules of Court made under it to delay the hearing of these matters. In particular, it would not have been an efficient use of the judicial resources available for the purposes of the Court nor would it have facilitated the just resolution of the dispute between the parties in the quickest or most efficient way possible. These are matters to which I am bound to have regard in exercising the power Mr Chan seeks to invoke. See 37M of the Act.
13. Mr Chan also submitted that I erred in my earlier judgment when I referred to Mr Harris as “an employee of Catholic Care, Sydney, which operates Local Employment and Training Solutions (LETS) programs”. He stated that I had repeated as fact errors made by the primary judge, I should amend those factual errors before proceeding further, and that would require an adjournment of the hearing to enable the amendment “to happen and take effect”. For present purposes, at least, nothing turns on this. Any error I may have made in my description of Mr Harris did not affect the orders I made and the submission provides no support for an adjournment application. It is sufficient for me to note that Mr Chan disputed the employment relationship.
14. I should also say something about the other matters that Mr Chan raised.
15. First, Mr Chan disputed the validity of the retainer held by Corrs Chambers Westgarth, solicitors, (“Corrs”) and challenged the notice of appearance entered by them, contending that they were not authorised to represent Mr Harris. Mr Chan’s position was based on:
    • seeing, whilst waiting to enter the courtroom, a folder in the hands of a Corrs solicitor with the words “Catholic Church (Archdiocese of Sydney)” on the cover;
    • the solicitor’s refusal to clarify the matter to his satisfaction; and
    • an alleged conversation with Mr Harris himself (not the subject of any evidence, but raised in submissions – submissions that were not served), in which he signalled his total lack of involvement in the case and advised Mr Chan that it was CatholicCare and not he, who had instructed solicitors (something, I might say, which is entirely consistent with him being employed by CatholicCare).
16. Mr Chan raised his concerns before the primary judge. His Honour confirmed with the Corrs solicitor that she was instructed to appear for Mr Harris. There is no proper basis for doubting the validity of the notice of appearance.
17. Mr Chan also disputed his obligation to serve Mr Harris’s solicitors with copies of any documents he filed and informed the Court he had not served his submissions on them (despite my having reminded him at the directions hearing to do so). Mr Harris filed what was entitled a “notice of submitting appearance” referring to O 9 r 3(1) of the Federal Court Rules. It read:

Alan Harris of [address] appears and submits to the making of all orders sought, and the giving or entry of judgment in respect of all claims made, save as to costs.

18. In fact, O 9 r 3(1) makes no reference to a submitting appearance. Indeed, the Federal Court Rules do not use the term “submitting appearance”. The Act does, however, provide for such an appearance. Section 38 provides:

Practice and procedure
(1) Subject to any provision made by or under this or any other Act with respect to practice and procedure, the practice and procedure of the Court shall be in accordance with Rules of Court made under this Act.

(2) In so far as the provisions for the time being applicable in accordance with subsection (1) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

(3) In this section, practice and procedure includes all matters in relation to which Rules of Court may be made under this Act.

[Emphasis in original.]

19. Regulation 23.02 of the High Court Rules (Cth) provides for a submitting appearance. It provides:

Submitting appearance
A defendant willing to submit to any order that the Court may make, save as to costs, may file a submitting appearance in Form 8.

20. The submitting appearance Corrs filed is substantially in the same form as that provided for in Form 8. Unlike r 6.11 of the Uniform Civil Procedure Rules (NSW) to which Mr Chan referred, the High Court Rules do not provide that a defendant who has filed a submitting appearance may not take any further step in the proceeding without the leave of the Court. It was in reliance on the predecessor of r 6.11 in the New South Wales Supreme Court Rules that Young J held in Trust Co of Australia Limited v Perpetual Trustees WA Limited (No. P2) (1995) 36 NSWLR 654, upon which Mr Chan relied, that a defendant who files a submitting appearance is not entitled to be given notice of any hearing. In any case, however, as Mr Chan himself acknowledged in his submissions, the rule provides for an exception where a court gives leave. In this case I made orders requiring Mr Chan to serve on Mr Harris any documents he filed. He made no application to set the orders aside. He should have complied with them.
21. As for the statements attributed to Mr Harris in the submissions, not only are they irrelevant to the adjournment application but, as they are not evidence, I disregard them.

Another preliminary issue

22. At the hearing on 9 February 2010 I made it clear to Mr Chan that I would not sit beyond the day to hear argument on the matters fixed for hearing that day. Despite this, after the argument on the adjournment application, Mr Chan devoted all his time to the argument in support of the stay sought in the February notice of motion. At the end of the day I indicated, however, that I would give him an opportunity to file any further written submissions he might wish to make concerning the outstanding matters and agreed to his request that he have a week to do so. No further submissions answering this description were filed. Instead, on 10 February 2010 Mr Chan tried to file in the registry a notice of motion seeking a direction that the proceeding be referred to a Full Court pursuant to s 20(1A) of the Act. The registry refused to accept the documents for filing as the affidavit provided no details of the nature of the case he was making in support of the notice of motion. On 16 February 2010, the last date for further submissions, Mr Chan filed a submission in which he stated that he:

(a) had applied in writing to the Chief Justice for a direction that the proceeding be referred to a Full Court;

(b) intended to seek a direction for the Chief Justice under s 20(1A) to hold a public examination/hearing of the integrity of my conduct in the proceedings with a view to prosecuting me for judicial misconduct, suspecting that I am “likely to be guilty of perverting the course of justice in one way or another in this case”;

(c) intended to seek a direction from the Chief Justice under s 20(1A) for me to cease to determine the case any further and for the case to be dealt with by the Full Court.

23. In the circumstances, he stated, he was “unable” to comply with any of my directions or orders.
24. He made no application to me that I recuse myself. It is well established that such an application must be made in the first instance to the judge allocated to hear the matter. In Barton v Walker [1979] 2 NSWLR 740, Samuels JA, in a judgment with which the other members of the Court agreed, referred (at 749C) to the “informal practice which requires the individual judge to determine his own disqualification” and held (at 750B) that a motion to disqualify a judge of the Supreme Court was “not cognizable”. He said (at 756A) that:

the proposition that one judge of this Court has authority to declare that another is disqualified from sitting in particular proceedings seems to me, if I may say so, quite absurd.

See also Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294 and Bainton v Rajski (1992) 29 NSWLR 539 (“Bainton”) at 544, 548.

25. In any case there is no justification for any of the scandalous, unparticularised and unsubstantiated allegations that Mr Chan makes. There is, therefore, no disqualifying conduct. As Mahoney JA said in Bainton at 541:

It is accepted that justice must be done in fact and that the appearance of justice must be maintained. But that, and particularly the latter, does not require that, if a party alleges or even believes in the disqualifying facts alleged, the judge should withdraw. If that were so, the administration of justice and the rights of other parties would be governed by the allegation of or the belief in facts, however dishonest, paranoiac, unbalanced or honestly wrong.

26. As for the particular allegations, Mr Chan makes, I note Mahoney JA’s observations in Bainton at 542:

It has been long established: see, eg, the St James’s Evening Post Case; Roach v Garvan (or Hall) [1742] EngR 142; (1742) 2 Atk 469; 26 ER 683; that “any act done or writing published calculated to bring a Court or a judge of the Court into contempt, or to lower his authority, is a contempt of Court”: R v Gray [1900] 2 QB 36 at 40 per Lord Russell of Killowen CJ. ...

Allegations in respect of a judge of partiality, impropriety, improper motive and the like have been seen as of particular concern. In Borrie and Lowe’s Law of Contempt, 2nd ed (1983) at 238, it is said:

“Allegations of partiality or impropriety are probably the most common way in which the court has been held to be ‘scandalised’. ...”

27. Having regard to the allegations I have given consideration to whether I ought to recuse myself because of apprehended bias. The principle is that a judge should refrain from hearing or continuing to hear a case “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”: Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 (“Ebner”) at [6]. As the Court made clear in Ebner (at [8]), however, the application of the principle involves two steps. The first is that there must be an identification of what it is said might lead a judge to decide a case otherwise than on its merits. The second (and no less important) one is that “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... Only then can the reasonableness of the asserted apprehension of bias be assessed”. A bare assertion is not enough. Here, Mr Chan has not made it to the first step. In the circumstances, I am bound to continue to determine the matters before me and do not propose to recuse myself. As Mason J said in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352, it is

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.

28. I shall now deal with the notices of motion in the order in which they were filed.

The notice of motion filed on 24 November 2010

29. Prayers 3 and 4 of this notice of motion are in the following terms (without alteration):

An injunction/order staying Ms. Linda Allen’s decision of 5 November 2010 until the final determination of this Federal Court case no. NSD 1372 of 2010. (If necessary, also an order joining the Commonwealth of Australia as a party to this Federal Court case no. NSD 1372 of 2010.)

An injunction/order staying the proceedings of the Consumer, Trader & Tenancy Tribunal case no. SH 10/49951 until the final determination of this Federal Court case no. NSD 1372 of 2010. (If necessary, also an order joining the State of New South Wales/New South Wales Land and Housing Corporation as a party to this Federal Court case no. NSD 1372 of 2010.)

30. Neither Ms Allen nor the Consumer, Trader and Tenancy Tribunal of NSW (“CTTT”) is a party to the proceeding.
31. Annexed to the affidavit in support of the notice of motion was a letter from Ms Allen. It appears that she is an authorised review officer, that is, an independent senior officer (presumably of the Department of Social Security) authorised to review decisions made by Centrelink. She states in a letter dated 5 November 2010 that she has reviewed the decision made on 4 May 2010 to record “a connection failure” against Mr Chan’s Newstart Allowance on 29 April 2010 but has decided that the decision was correct. Attached to her letter (but not to the affidavit) was a statement explaining her decision and her reasons. Amongst other things, the letter advised that, if Mr Chan did not agree with her decision he could ask for an independent review by the Social Security Appeals Tribunal (“SSAT”) and that he had 13 weeks from receipt of her letter in which to do so. There is no evidence to indicate whether Mr Chan applied to the SSAT for a review, although I note that the 13 weeks would now seem to have passed.
32. Also annexed to the affidavit was a copy of an application the NSW Land and Housing Corporation (“Housing NSW”), who is apparently Mr Chan’s landlord, filed in the CTTT on 1 November 2010. It seeks orders in the following terms (without alteration) against Mr Chan requiring him to:
    • Stop breaking or to carry out a terms of the agreement (e.g. Specific Performance);
    • To allow the landlord or some other person to enter the premises (RT Act section 24); and
    • To allow a lock or security device to be changed or removed or added (RT Act Section 29).
      
33. The stated reasons for the orders (again, without alteration) are:

Housing NSW requests access to the premises as all previous attempts have failed. Housing NSW requests to complete a Client Service Visit. Housing NSW has been advised by NSW Fire Services that there has been a recent fire at the premises and there are concerns about property care.

34. In an affidavit Mr Chan filed on 3 December 2010 he attached a copy of a “Notice of Conciliation and Hearing” issued by the CTTT on 1 November 2010 indicating that the case was listed before the tribunal at 2.15 pm on 24 November 2010. Mr Chan stated that the case was due to be heard on 24 November 2010 but the tribunal member then adjourned it for further hearing on a later date, which Mr Chan did not disclose. Mr Chan also annexed a heavily redacted letter from Housing NSW, referring to the hearing on 24 November. The only substantive part that is legible refers to Mr Chan’s failure to allow Housing NSW staff to access his flat after NSW Fire Brigade Services reported a fire on 18 September 2010, noting the “fire incident number”. In the affidavit Mr Chan disputed that there was a fire and asserts that he told the author of the letter as much but he ignored him.
35. He went on to repeat his contention that the CTTT proceeding “constitutes a serious distraction to me”, “has diverted and is continuing to divert a lot of my attention away from the preparation for the hearing of this Federal Court case” and “has caused serious interference to the proceedings of this Federal Court case”.
36. On 6 December 2010 Mr Chan filed a further affidavit indicating he had served the Housing NSW officer, who had written the letter referred to in the previous affidavit, with a copy of that affidavit and – for some inexplicable reason – annexing the report of the former Senior Deputy State Coroner dated 30 November 2010 into the death of Diane Brimble.
37. There is no evidence about what stage the CTTT proceeding has now reached.
38. On 15 December 2010 Mr Chan filed written submissions in support of the orders he seeks. He submitted that Ms Allen’s decision and the CTTT case:

were orchestrated/organized/induced by some conspirators with the sole or dominant objective to distract and prejudice the Applicant in this Federal Court case NSD 1372/2010. In the alternative, they were not done by those conspirators to so distract and prejudice the Applicant but the net effect of Ms Allen’s decision and the CTTT case... is still the same.

39. Mr Chan submitted that the subject matter of Ms Allen’s decision “overlaps or intersects with the subject matter [of the proceeding before the primary judge]” and that he “would not be able to fully assist Ms Allen in her decision-making process without touching the issues also pending in [that proceeding]”.
40. Mr Chan also submitted that his right to a fair hearing in this case had been seriously affected by Ms Allen’s decision. He reasons that “two more adverse Centrelink ‘decisions’” against him will leave him without food and housing so he will not be able to continue with this proceeding. He pointed to his low income and submitted that Ms Allen’s decision had further drained the financial resources necessary to pay for the printing and photocopying of the documents relevant to this case, which has seriously prejudiced his right to have a fair hearing.
41. He submitted that the relentless pressure put upon him by the relevant officer of Housing NSW to yield to “their improper/unlawful demands based upon a ‘fire’ that is fabricated by them” has had a “cumulative prejudicial effect (financial or otherwise)”. He regards the delay in the filing of the CTTT application since Housing NSW knew about the fire as “particularly suspicious” and timed to interfere with this proceeding in order to divert his attention and financial resources away from it at a critical point in time. Alternatively, he argued this is the effect of it.
42. He also contended that he was sleep deprived because of the multiple demands on his time and has insufficient funds causing him to become “dysfunctional (or at least handicapped)” in this case.
43. For all these reasons he states that it is in the public interest that prayers 3 and 4 of the notice of motion be granted so that he can properly prepare for the hearing of the purported appeal from the primary judge’s decision.
44. I refuse the orders sought.
45. There is nothing to indicate that either Ms Allen or the Housing NSW had any idea of the existence of this proceeding, let alone that they would have any interest in doing as Mr Chan alleges. Mr Chan submitted that they did but the submission was not supported by evidence. Neither is there any evidence that Mr Chan asked Ms Allen to defer her decision until he had obtained the information he was seeking through the proceeding before the primary judge.
46. Mr Chan made no submissions directed to the question of what power the Court would have to make the orders sought against Ms Allen and the CTTT. Even if the Court did have such a power, the reasons Mr Chan gives would not provide a proper foundation for them and it would not be a proper exercise of the Court’s power to grant them.

The notice of motion filed on 28 January 2011

47. In this notice of motion Mr Chan seeks the following orders (without alteration):

(1) An order granting access by the Applicant Mr Yau Hang Chan to the transcripts of all the proceedings of this Federal Court case no. NSD 1372 of 2010 up to and until the date of the determination of this application.
(2) A declaration that the Applicant Mr Chan has the right of access to all the correspondences/written communications between the Federal Court and the lawyers opposing him/representing his opponents in this case NSD 1372 of 2010.
(3) An order that the proceedings of New South Wales Local Court cases no. 12785/2009 and 12787/2009 be stayed.
(4) An order for the joinder of the “TAFE Commission” to this Federal Court case no. NSD 1372 of 2010 for the purpose of enforcing the above order no. 2 (when granted).
(5) Any other appropriate orders.

48. The notice of motion is supported by an affidavit affirmed on 28 January 2011. The affidavit is brief. It is convenient to reproduce its contents in full:
    1. I am the Applicant.
       
    2. I need to be able to access the transcripts of all the proceedings of this Federal Court case no. NSD 1372 of 2010 for the preparation and drafting of the relevant documents for this case. It is not practical for me to rely upon only memory of what has already been said or submitted by the parties in these hearings, especially when I need to be able to provide particulars in the relevant documents intended for NSD 1372 of 2010. It is therefore in the interest of justice to grant me such access to the transcripts. A hearing of this case cannot be fair if the Applicant has only his memory to rely upon in the making of his submissions intended for a hearing of this case, without the assistance of the relevant transcripts. It is the duty of the court to ensure that a party can present his or her intended case to the court. Otherwise a hearing will not and cannot be fair.
       
    3. The New South Wales Local Court cases no. 12785/2009 and 12787/2009 are interfering with and disrupting the Applicant’s preparation for the proceedings of this Federal Court case NSD 1372/2010. They were proceedings relating to the costs of another New South Wales Supreme Court case, the outcome of which [is] still under contention. These two Local Court cases have diverted the attention and resources of the Applicant away from his preparation for this case NSD 1372/2010. This has affected and will continue to seriously affect the Applicant’s right to have a fair hearing in NSD 1372/2010. The timing of these two Local Court cases no. 12785/2009 and 12787/2009 is also suspicious as this is the time when the Applicant would need to focus on his preparation for this Federal Court case. The proceedings of these two Local Court cases must be stayed until the conclusion of this Federal Court case and the exhaust of the Applicant’s appeal rights in this Federal Court case NSD 1372/2010 to ensure that the two Local Court cases will not adversely affect the outcome of NSD 1372/2010.
       

The application for access to transcript

49. As I informed Mr Chan, an order for access to transcripts would be futile as there are none on the file. Transcripts are only produced when someone orders them. The Court did not order transcript of any of the occasions when this matter has been before it. In any case, at the time the application was made, the only “proceedings” that had taken place were directions hearings. Mr Harris, who filed a submitting appearance, did not appear at any of them and no evidence was taken. Mr Chan did not explain why he would need a record of what was said at a directions hearing in order to prepare his arguments for the hearing. I refuse the application.

Access to correspondence

50. Mr Chan made a similar application to the primary judge. His Honour refused it on the ground that he did not advance “any basis ... as to the justification for allowing him to inspect the correspondence folder”. Neither was any basis advanced in the proceeding before me. It is also unclear what Mr Chan expects to find there or how any such correspondence would or could be relevant to his appeal. Furthermore, there was no evidence to suggest that Mr Chan has asked the solicitors for Mr Harris for copies and they had refused his request. In the circumstances, I decline to make the declaration sought.

The application to stay Local Court proceedings

51. Mr Chan did not indicate how this Court would have the power to stay proceedings in the Local Court. Even if it did, the evidence Mr Chan relies upon and the reason he gives would not support its exercise in his favour. The application is refused.

The notice of motion filed on 2 February 2011

52. On 15 December 2010 the primary judge acceded to a motion Mr Harris filed on 12 August 2010 to have the proceeding struck out or dismissed for want of prosecution pursuant to O 35A r 3(1)(a) of the Rules on the ground that Mr Chan had failed to comply with the requirements of the Rules and the directions of the Court. It is to be observed that evidence before his Honour showed that the absence of a supporting affidavit had been drawn to Mr Chan’s attention in writing by Mr Harris’s solicitors on 11 June 2010 and in Court by his Honour on 17 August 2010. In his reasons the primary judge noted that:
    6. Between the filing of the Application on 17 May 2010 and the hearing of the Application on 2 November 2010, Mr Chan filed six motions. The motions raised numerous issues including whether the Court, constituted by myself, should disqualify itself from hearing the proceedings. Mr Chan has also filed 15 affidavits in these proceedings, each of which was affirmed by himself. The majority of such material consists of various documents and articles which have no relevance to the proceedings currently before the Court (see Chan v Harris [2010] FCA 1099 at [20], [32] and [33]). Mr Chan has also filed extensive written submissions throughout the proceedings in 12 separate documents addressing both relevant and irrelevant issues to the proceedings before the Court. After the conclusion of the hearing, Mr Chan also filed, without leave, two further documents containing submissions.

...

27. The absence of a supporting affidavit as required by O 15A r 9(3) is fatal to the claim of Mr Chan in these proceedings. Even taking into account Mr Chan’s position as a self-represented litigant, the Court is satisfied that Mr Chan has been warned on multiple occasions of the requirements of the Rules. The Court cannot proceed to assess such an application without evidence that the applicant has in fact made reasonable inquiries in regard to his claims. Such evidence is to be constituted by an affidavit as required by O 15A r 9(3) of the Rules. The Statement of Claim cannot constitute such evidence and the broad assertions contained in it provide no details of the nature of inquiries made by Mr Chan, of whom such inquiries were made, when such inquiries were made, and the result of those inquiries. This is the very detail that is required to be placed before the Court before the requirements of O 15A r 3(1) and O 15A r 6(b) are fulfilled. Accordingly the Court is satisfied that the Application must fail.
    
53. His Honour later stated:
    100. Mr Chan’s application for preliminary discovery may have been expeditiously completed had he been prepared to file the mandatory affidavit under O 15A r 9(3). He has steadfastly declined to do so.
         
    101. Mr Chan has also failed to provide a document stating the precise issues which he wishes to raise in the proceedings as ordered by the Court on 5 July 2010. He has not filed any medical evidence explaining his absence from the Court on 10 August 2010 as ordered on 5 July 2010. Further, Mr Chan failed to provide any further affidavits in support of his claims although ordered to do so on 24 August 2010 and again on 12 October 2010. As detailed above, Mr Chan refused to take the Court to any evidence supporting his claims at the hearing, except for the material relating to his final Notice of Motion.
         
    102. The Court is satisfied that Mr Chan’s history demonstrates an inability or unwillingness to co-operate with the Court and with Mr Harris, that being conduct of the kind referred to by Wilcox and Gummow JJ in Lenijamar Pty Ltd and Others v AGC (Advances) Limited [1990] FCA 520; (1990) 27 FCR 388 at 396. Although the Court in those proceedings were considering an application for dismissal of proceedings for want of prosecution under O 10 r 7 of the Rules, there is no reason why the same considerations should not apply under O 35A r 2(1)(f) of the Rules.
         
    103. For the above reasons, the Court dismisses the Application and all notices of motion filed by Mr Chan pursuant to O 35A r 3(1)(a) of the Rules, with costs.
         
54. Mr Chan remains vexed by this judgment and in the fourth notice of motion asks that it be stayed until the disposition of his purported appeal from his Honour’s recusal judgment. (I have referred to the matter as a purported appeal because Mr Chan has not obtained leave to appeal as required by s 24(1A) of the Act and the motion for a declaration he seeks, that the section is unconstitutional also remains to be decided.)

The precise form of order he seeks is in the following terms:

the whole of the judgments of Justice Cowdroy delivered in the Federal Court case no. NSD 538 of 2010 be stayed until the final determination of this Federal Court case NSD 1372 of 2010 and subsequent appeals (if any).

56. Notwithstanding the use of the plural noun I took Mr Chan to be seeking a stay of the judgment delivered on 15 December. No argument was advanced at the hearing in support of a stay of the recusal judgment.
57. No affidavit was filed in support of this notice of motion.
58. Despite the application and despite the fact that two months have now elapsed since judgment was delivered, Mr Chan has not sought leave to appeal and has not applied for an extension of time for leave to appeal. See O 52 r 10 (2A)(b) of the Federal Court Rules. Nor has he amended his draft notice of appeal so as to allege any errors in the judgment he now asks be stayed.
59. Nevertheless, in oral submissions Mr Chan pointed to a number of matters in the reasons of the primary judge which, he said, were errors in fact-finding. He did not submit that the primary judge erred in law. The alleged errors were said to be:
    • Indicating in [14] that he would refer to both LETS and CatholicCare in the judgment as “LETS”.
    • Describing Corrs in [24] as Mr Harris’s solicitor;
    • Referring in [25] to Mr Harris as an employee of CatholicCare Sydney. The reference was to a letter Corrs wrote to Mr Chan in which they apparently advised him that Mr Harris, as an employee of CatholicCare Sydney, was not in possession of any documents of the kind he sought but that his employer, CatholicCare Sydney, held such documents. His Honour noted in [26] that Corrs had invited Mr Chan to agree to substitute CatholicCare Sydney for Mr Harris and said that in that event CatholicCare would consent to producing the documents it had in its possession in answer to orders 2, 3 and 4 of Mr Chan’s application. Mr Chan declined to accept the offer.

Finding (in [27] and [40]) that the absence of a supporting affidavit as the relevant rule required was “fatal” to Mr Chan’s claim and that there was no evidence that he had a possible right to relief against Mr Harris or of any inquiries he had made about any action against him or of any likelihood that Mr Harris had any relevant documents in his possession. Mr Chan submitted that the findings amounted to “a half-truth”. He accepted that he had not filed a supporting affidavit. He did not quarrel with the primary judge’s statements that directions had been made that he do so and he had not complied with those directions. He accepted that he had not presented any evidence. His point was that “we have not come to a stage that this was an issue. The issue with which we were concerned was his disqualification. To preserve the subject of the appeal he could not continue to sit”. He submitted that it was “beyond doubt” that, while the appeal from his refusal to disqualify himself was pending, his Honour should not have proceeded further.

• Stating at [41] that it seems unlikely that “Mr Harris would have any relevant documents in his personal possession” as a mere employee. Mr Chan declared that the proposition that an employee would not have documents is “false”, a “twisting of the truth” and “nonsense”. I pause to observe that it is likely that Mr Chan overlooked the use of the adjective “personal”.
• Stating at [52] that Mr Chan had advanced no justification for being allowed to inspect the correspondence folder, an order he sought in a motion filed on 10 June 2010 – six months before the judgment. Mr Chan submitted that the time had not yet come for him to do so.
• Referring at [54] to evidence given by a solicitor at Corrs contained in an affidavit filed in response to another prayer in that notice of motion in which Mr Chan sought an injunction restraining Corrs from acting for Mr Harris in the proceedings based on a submission that he had previously sought pro bono assistance from them and they might therefore have confidential materials. The evidence was to the effect that she had conducted a search, could find no record of Corrs ever having had any dealings with Mr Chan as a prospective client, and that the firm had a practice of returning any original documents to potential clients after a decision had been made not to act for them. Mr Chan submitted that these remarks were “misleading” and “truth-twisting.” He did not, however, dispute what the solicitor said or contend that his Honour’s summary of her evidence was inaccurate. Rather, he argued that the fact that she could not find the documents did not mean that Corrs did not have them, and “obviously” he had evidence to present when necessary but the time had not come.
• Making a misleading statement in [75] (also described as a “half-truth” and “truth twisted”) by referring to a heavily redacted document purporting to be a medical certificate without including Mr Chan’s explanation for the redactions. The explanation was that there was some interference with his doctors, one of whom had died a few days after he had consulted him in what he said were “suspicious circumstances”. He said that they were redacted because he did not want Mr Harris’s solicitors to see the names or contact details of the doctors.

60. Finally, Mr Chan rejected the finding that he had failed to prosecute the proceeding, pointing to the fact that he had been prosecuting his Honour through the present proceeding.
61. Order 52 r 17 provides:

Stay

(1) An appeal to the Court shall not:

(a) operate as a stay of execution or of proceedings under the judgment appealed from; or
(b) invalidate any intermediate act or proceedings;

except so far as the Court or a Judge or the court below may direct.

(2) The Court may vary or vacate any direction of the Court or the court below referred to in subrule (1).

(3) An application for a direction of the Court or a Judge under subrule (1) shall be made to the Court or a Judge by motion upon notice, and may be made whether or not a similar application has been made to the court below. An application for a direction under subrule (2) shall be made to the Court by motion upon notice, and may be made whether or not a similar application has been made to the court below.

62. The relevant principles have been stated repeatedly. It is sufficient for me to refer to the decision of the NSW Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694E where it was held that it is not necessary that special or exceptional circumstances be made out but the applicant for a stay must demonstrate a reason or an appropriate case to warrant the exercise of the Court’s discretion in his favour. The Court also cited with approval the following statement of Mahoney JA in Re Middle Harbour Investment Ltd (In Liq) (unreported, NSW Court of Appeal, 15 December 1976) with which the other members of the Court agreed:

Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.

63. These principles have been applied in this Court. See, e.g. Henderson v Amadio (No. 3) (1996) 65 FCR 66, where Heerey J made it clear that a relevant consideration is that the applicant demonstrates that he or she has a reasonably arguable case on appeal.
64. These decisions, however, are not concerned with a case such as this where an applicant requires leave to appeal and leave to appeal has not been sought, let alone granted, and where the time for seeking leave has long expired. In such a case, it seems to me that special or exceptional circumstances should be shown. See Beljajev v Director of Public Prosecutions [1991] HCA 16; (1991) 173 CLR 28 at 30; Advanced Building Systems v Ramset Fasteners (Aust) Pty Ltd [1997] HCA 24; (1997) 145 ALR 121 at 123. Mr Chan has not demonstrated the existence of special or exceptional circumstances. Even if it is not necessary for him to do so, I would not be satisfied that this is an appropriate case for a stay. On the material presented to me and having carefully considered the submissions he made, I am not persuaded that Mr Chan has a reasonably arguable case on appeal.
65. The first three matters do not disclose error.
66. With respect to Mr Chan’s assertions that his Honour was wrong to decide against him on the basis of the absence of evidence when the time had not yet come for him to present his evidence – putting aside the requirement in the rules that a notice of motion be supported by an affidavit (O 19 r 1(2)) – it is sufficient for me to refer to what his Honour said at [84] and [87] of his reasons. At [84] his Honour noted that on 24 August 2010 he had ordered Mr Chan to file and serve any further affidavit evidence on which he sought to rely by 14 September 2010. At [87] he said:

The Court drew to Mr Chan’s attention the orders of the Court made on 24 August 2010 which required him to file any further affidavits upon which he relied by 14 September 2010. Mr Chan submitted that he was not prepared to proceed with any hearing on 12 October 2010. Accordingly, the Court made orders further extending time for Mr Chan to file any further affidavits in relation to the Application and remaining notices of motion and set the proceedings down for hearing. Such orders were as follows:

1. By 4:00 pm on 19 October 2010, the Applicant is to file any further affidavits and submissions on which he intends to rely in respect of the notice of motions not yet disposed of.
2. By 4:00 pm on 26 October 2010, the Applicant is to file any further affidavits and submissions on which he intends to rely in respect of his principal application for preliminary discovery.
3. The Respondent is to file any further affidavits and submissions on which he intends to rely by 4:00 pm 29 October 2010.
4. The Hearing of the outstanding notices of motions and the principal application for preliminary discovery be listed on 2 November 2010 at 10:15 am.

5. There is to be no extension of time for any of the above orders.

67. At [99] his Honour noted that at the final hearing on 2 November 2010, he gave Mr Chan a further opportunity to provide the evidence upon which he relied in support of his motions and he declined to do so.
68. The time to present the evidence had well and truly come – indeed, it had passed – before the Court made its findings.
69. The failure to include Mr Chan’s explanation for the changes he made to the medical certificate is of no consequence as his Honour granted the adjournment in support of which the certificate was presented.
70. As for the fundamental challenge based on the primary judge’s decision to deliver judgment whilst the purported appeal from his recusal judgment was pending, Mr Chan’s submission is based on a misconception. It is not uncommon for a judge to continue to hear a case having refused a recusal application. The usual course is for aggrieved parties to argue the point before an appellate court if and when the final judgment goes against them. The subject matter of Mr Chan’s appeal was not “destroyed” (as he asserted) when his Honour dismissed his application for want of prosecution on 15 December 2010. It remained intact. Had he elected to do so, he could have included his complaint about the recusal judgment in an application for leave to appeal (or, if his point about the constitutional invalidity of s 24(1A) of the Act is right, an appeal) from the final judgment.
71. I therefore refuse the application and dismiss the motion.

I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate:

Dated: 24 February 2011