Chan v Harris

Case [2011] FCA 597

FEDERAL COURT OF AUSTRALIA

Chan v Harris [2011] FCA 597

Citation: Chan v Harris [2011] FCA 597
Parties: YAU HANG CHAN v ALAN HARRIS
File number: NSD 393 of 2011
Judge: RARES J
Date of judgment: 19 May 2011
Date of hearing: 19 May 2011
Place: Sydney
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 15
Counsel for the Applicant: The applicant did not appear
Solicitor for the Respondent: Corrs Chambers Westgarth (submitting appearance)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 393 of 2011
BETWEEN:

YAU HANG CHAN
Applicant
AND:

ALAN HARRIS
Respondent

JUDGE:

RARES J

DATE OF ORDER:

19 MAY 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The motion filed on 1 April 2011 be dismissed.

2.The applicant pay the respondent’s costs, if any, on a complete indemnity basis.

3.The applicant show cause by filing and serving, on or before 6 June 2011,  an affidavit, limited to no more than 20 pages including annexures, explaining why, having regard to his conduct of  proceedings NSD 538 of 2010, NSD 1372 of 2010 and NSD 393 of 2011, the Court should not order that he file no further proceedings without leave of a judge or the Court, and that any application to show cause so made by him be listed for hearing  at 9.30am on 17 June 2011.  

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 393 of 2011
BETWEEN:

YAU HANG CHAN
Applicant
AND:

ALAN HARRIS
Respondent

JUDGE:

RARES J

DATE:

19 MAY 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

  1. These proceedings were commenced by a notice of motion filed on 1 April 2011 seeking an order granting leave to appeal against the judgments of Cowdroy J in proceedings NSD 538 of 2010.  Mr Chan’s affidavit in support of the notice of motion, affirmed by him on 1 April 2011, simply stated that he was the applicant, annexed a copy of orders made by Katzmann J on 10 March 2011 and he recited that, in accordance with Order 2 made by her Honour, a notice of motion would be filed, concluding:

    “I consider this filing step as a precaution in the event that I am required to seek leave to appeal against Justice Cowdroy’s decisions.”

  2. Order 2 made by Katzmann J on 10 March 2011 granted leave to Mr Chan to file and serve, on or before 1 April 2011, a notice of motion and affidavit in support seeking leave to appeal and an extension of time in which to do so from the judgment of Cowdroy J of 15 December 2010.

  3. It is patent, from the foregoing that, first, the notice of motion as filed by Mr Chan did not seek any extension of time in which to seek…

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Details
AGLC
Chan v Harris [2011] FCA 597
Case
[2011] FCA 597
Decision Date

CaseChat Overview and Summary

The case of Chan v Harris was heard before a court that needed to decide on a motion filed by Mr Chan seeking leave to appeal. The motion was brought forward without the necessary supporting documents, including an extension of time to seek leave to appeal and a substantive affidavit outlining the grounds for the appeal. Mr Chan had a history of non-compliance with court orders, including failing to submit required written submissions by the specified deadline. The court was tasked with determining whether Mr Chan's motion should be dismissed due to his non-compliance and the lack of proper documentation.

The court found that Mr Chan had not complied with prior orders to file submissions and did not provide any explanation for his failure to do so. The affidavit he submitted, described as a "redacted medical certificate," was deemed to be vacuous and not a legitimate medical certificate. The court considered Mr Chan's conduct to be an abuse of the court process and found that his motion had no prospect of success. Given these findings, the court concluded that the motion should be dismissed and that Mr Chan should pay the respondent's costs on a complete indemnity basis.

In its final orders, the court dismissed Mr Chan's motion and required him to pay the respondent's costs. Additionally, Mr Chan was instructed to file an affidavit explaining why he should not be prohibited from filing further proceedings in the court without prior leave from a judge or the court. This application to show cause was to be listed for a hearing at a later date.

Orders

Orders of the court

1. The motion filed on 1 April 2011 be dismissed.

2. The applicant pay the respondent’s costs, if any, on a complete indemnity basis.

3. The applicant show cause by filing and serving, on or before 6 June 2011, an affidavit, limited to no more than 20 pages including annexures, explaining why, having regard to his conduct of proceedings NSD 538 of 2010, NSD 1372 of 2010 and NSD 393 of 2011, the Court should not order that he file no further proceedings without leave of a judge or the Court, and that any application to show cause so made by him be listed for hearing at 9.30am on 17 June 2011.

Note:

Background

Background to the litigation

It is patent, from the foregoing that, first, the notice of motion as filed by Mr Chan did not seek any extension of time in which to seek leave to appeal and, secondly, that there was no substantive affidavit in support of leave to appeal. His affidavit did not set out any grounds to warrant a grant of leave to appeal.THE PROCEDURAL BACKGROUND The proceedings have had a substantial history. On 2 May 2011 I ordered in Chambers that, on or before 13 May 2011, Mr Chan serve and provide to my associate a copy of written submissions of no more than five pages as to the basis on which he sought the order in his notice of motion. I ordered that no further documents be filed without the prior leave of the judge. No submissions have been filed and no attempt has been made by Mr Chan to comply with my orders. The motion was fixed for hearing today at 2.15 pm. The solicitors for the respondent wrote to the Court on 3 May 2011 stating that he neither consented nor opposed the application seeking leave to appeal from any orders made by Cowdroy J in the principal proceedings, or any application for an extension of time in which to apply for that leave to appeal; and otherwise, in effect, submitted to any orders of the Court on this application except as to costs. When the matter was called at 2.15 pm today there was no appearance by any party. I stood the matter in the list until 2.40 pm when it was called again and there was no appearance. I then began delivering these reasons. Mr Chan sought preliminary discovery under O 15A rr 3 and 6 of the Federal Court Rules in the proceedings before Cowdroy J. His Honour was required to consider a number of applications by Mr Chan in the course of those proceedings. An important application was made to his Honour that he should disqualify himself. His Honour rejected that application for reasons that he delivered on 12 October 2010: Chan v Harris [2010] FCA 1099. His Honour then proceeded to set the substantive matter down for hearing. In the meantime, on 18 October 2010, Mr Chan filed a notice of appeal from his Honour’s decision not to disqualify himself. Katzmann J dealt with issues concerning the notice of appeal and a number of other issues raised by Mr Chan in judgments which her Honour delivered. First, her Honour ordered on 17 December 2010 that Mr Chan file and serve an affidavit attaching a draft notice of appeal incorporating the existing grounds set out in the notice of appeal filed on 18 October 2010, together with any further grounds he might wish to raise in relation to the subsequent judgment that Cowdroy J had given on 15 December 2010 dismissing Mr Chan’s application for preliminary discovery: Chan v Harris(No 2) [2010] FCA 1393. His Honour determined that he was not satisfied that the preconditions for an order granting preliminary discovery had been met by Mr Chan, among other reasons, because Mr Chan had not complied with the requirements of the Rules to file an affidavit in support of that application. Justice Cowdroy also concluded that the history of Mr Chan’s conduct of the litigation before his Honour demonstrated an inability or unwillingness on his part to co-operate with the Court and with the respondent which warranted his Honour exercising his power to dismiss the proceedings under O 35A r 3(1)(a) because Mr Chan was in default under O 35A r 2(1)(f) by failing to prosecute the proceedings with due diligence. Mr Chan has not filed a draft notice of appeal or identified any further grounds of challenge to Cowdroy J’s decisions in any other document other than those in his notice of appeal filed on 18 October 2010 despite Katzmann J’s order of 17 December 2010 that he do so.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Annexure A to Mr Chan’s submission, which he described as a “redacted medical certificate”, is reproduced below:CONSIDERATION As is evident, the “certificate” is not a medical certificate at all. It is vacuous. It does not state any opinion or any medical condition. It does not give any indication as to what any unfitness of Mr Chan is. In my opinion, Mr Chan’s use of that document is an abuse of the process of the Court. The supposed submission is an attempt to impugn, without the slightest basis, officers of the Registry who have done nothing to warrant his unfounded allegations. The medical certificate indicates not the slightest ground for an adjournment. Mr Chan has been fully on notice of the need to be ready for today’s hearing. For over two weeks he failed to comply with the orders of the Court to file submissions in support of his application for leave to appeal but has not done so and has not given any explanation for that failure. The medical certificate says nothing about his ability or inability to have provided such submissions by 13 May 2011. In my opinion, these proceedings amount to a plain abuse of the process of the Court. They have no prospect of success. It is time that these vexatious proceedings were brought to an end. For these reasons, I will make orders that the motion filed on 1 April 2011 be dismissed. It is appropriate that Mr Chan pay the respondent’s costs, if any, on a complete indemnity basis. In addition, Mr Chan should show cause, by filing and serving an affidavit explaining why he should not be prohibited from filing further proceedings in the Court, without the leave of a judge or the Court first had and obtained.