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Chan v Harris

Chan v Harris

Case [2010] FCA 1099 12 October 2010

Jurisdiction

Appeal

Abuse of Process

Discovery & Disclosure

Res Judicata

Civil Litigation & Procedure

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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] 2 VR 573
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gascor v Ellicott [1997] 1 VR 332
Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 342
Livesey v NSW Bar Association (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) 167 CLR 568
Webb v The Queen (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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan v Harris

Details

AGLC: Chan v Harris [2010] FCA 1099
Case: [2010] FCA 1099
Decision Date

CaseChat Overview and Summary

The applicant, Yau Hang Chan, filed an application for preliminary discovery against the respondent, Alan Harris, an employee of Catholic Care Sydney, in proceedings NSD538/2010. Mr Chan claimed that a report prepared by Local Employment and Training Solutions (LETS) and provided to Centrelink contained fraudulent or defamatory allegations concerning him and that such allegations were part of a conspiracy to injure him. The application was heard by Cowdroy J. Mr Chan made an application for the judge to disqualify himself from hearing the matter, claiming that the listing of the current matter before the same judge who made a determination in a previous proceeding, NSD426/2009, was the result of a conspiracy perpetrated by persons unknown. The Court dismissed the application for disqualification, finding that there were no grounds for disqualification. The Court held that there was no reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide. The Court held that Mr Chan’s understanding of the doctrine of apprehended bias was misconceived. The Court held that no factual determination had been made in NSD426/2009 upon which Mr Chan based his claim for disqualification and that no reasonable ground of apprehended bias existed. Since no other basis existed for disqualification, the application for disqualification was refused. The Court further found that Mr Chan’s application for leave to issue subpoenas, his application for a copy of the transcript of proceedings and his application for a declaration that he was not liable for the costs of certain parties were all without merit and were refused.

Orders