Caves v CHAN

[2010] FMCA 706

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAVES v CHAN & ORS [2010] FMCA 706

HUMAN RIGHTS – Alleged racial discrimination – membership of ethnic literary society.

PRACTICE AND PROCEDURE – Failure to comply with previous procedural orders – limitations on evidence consequent upon failure – right of unqualified advocate to seek to appear.

Australian Competition and Consumer Commission v Jutsen [2010] FCA 961

Applicant: TEKOHI CAVES

First Respondent: LEWI CHAN

Second Respondent: NG LAY HWA

Third Respondent: GEE FOO

Fourth Respondent: ALBERT ENG

Fifth Respondent: PANG SWEE HUAT

Sixth Respondent: CHRISTMAS ISLAND CHINESE LITERARY ASSOCIATION INC.

File Number: PEG 110 of 2009

Judgment of: Lucev FM

Hearing date: 7 September 2010

Date of Last Submission: 7 September 2010

Delivered at: Perth

Delivered on: 7 September 2010

REPRESENTATION

The Applicant: In person

The Respondents: No appearance

ORDERS

1. The applicant file and serve by email a current copy of the Constitution of the Christmas Island Chinese Literary Association Inc. by 17 September 2010.

2. If Mr Kelvin Lee seeks to appear at hearing on 28 September 2010 the respondent or respondents for whom he seeks to appear must file an application in a case supported by affidavit on or before 24 September 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 110 of 2009

TEKOHI CAVES

Applicant

And

LEWI CHAN

First Respondent

NG LY HWA

Second Respondent

GEE FOO

Third Respondent

ALBERT ENG

Fourth Respondent

PANG SWEE HUAT

Fifth Respondent

CHRISTMAS ISLAND CHINESE LITERARY ASSOCIATION INC.

Sixth Respondent

REASONS FOR JUDGMENT

(Ex tempore – edited from transcript)

1. This hearing arises from the respondents failure to comply with Order 2 of the Orders made by the Court on 30 August 2010 that each respondent file and serve:

   a)a Notice of Address for Service;

   b)a Response; and

   c)any affidavits in support of the Response,

   by 3 September 2010.

2. The application was on today for prospective default judgment. Since the last occasion that the matter was in Court there has been an appearance filed on 6 September 2010 by the first respondent, Lewi Chan. That is sufficient in the Court’s view, given the nature of the orders that it has previously made, for the matter to proceed to a full hearing on 28 September 2010, it being some indication of a desire to be heard at least by the first respondent.

3. The failure of the first respondent and the other respondents to file a Response or Defence means that the first respondent will be limited, subject to what follows at hearing, to:

   a)cross-examining Mr Caves on:

   i)his affidavit evidence; and

   ii)the Constitution of the Christmas Island Chinese Literary Association Incorporated; and

   b)making submissions with respect to Mr Caves’ claim.

4. No additional defence will be able to be put forward because of the failure to file a response or lead any evidence in response to the application. Thus, effectively, the first respondent, and to the extent that the other respondents then might be bound by any finding with respect to the first respondent’s case, will be restricted to arguing that there is no case to answer or that Mr Caves has not made his case out.

5. The only additional evidence which can be filed between now and the hearing is a copy of the current Constitution of the Association, and the Court proposes to order that Mr Caves, the applicant, file and serve by email an affidavit appending a current copy of the Association’s Constitution and that that be done by 17 September 2010.

6. The Court has ordered that Mr Caves file and serve that copy because it is his case and it is his evidence which raises a potential relevant amendment to the Constitution of the Association passed in 2009. Additionally, if the Court ordered the first respondent or any of the other respondents to file and serve those documents it could not, in the circumstances, be satisfied, given their dismal record of failing to comply with orders of the Court and, again, their failure to attend today, that an amended Constitution would be filed. For better or worse, therefore, that task will fall to Mr Caves.

7. With respect to any appearance by Mr Kelvin Lee on behalf of the respondents that appearance was not allowed before the Court when Mr Lee sought to appear on 30 August 2010. As the Court apprehends it thus far, Mr Lee is not a legal practitioner, is not a person who regularly appears in the courts and in particular the Federal Courts, and is not a person with professional expertise in racial discrimination matters. Having regard for those matters alone it would be difficult for Mr Lee to be given a right to appear, and especially so taken together with the general rule that a court will not allow an appearance by a person not admitted to practice before it. In that regard the Court refers to the general principles outlined in the Federal Court’s very recent judgment in Australian Competition and Consumer Commission v Jutsen.[1] If Mr Lee does seek to appear at hearing on 28 September 2010 he will have to persuade the Court that he is to be given a right of appearance and in that regard if he is to seek to appear he must file and serve an application in a case supported by affidavit by 24 September 2010.

   [1] [2010] FCA 961.

8. In summary, therefore, there will be no default judgment today for the applicant. The matter will proceed to full hearing on 28 September 2010. If Mr Lee seeks to appear he must file appropriate documents.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: 

Date:  13 September 2010