Chan v Harris (No 2)

Case [2011] FCA 143

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 Rules2005 (NSW) r 6.11
Cases cited:

Advanced Building Systems v Ramset Fasteners (Aust) Pty Ltd (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) 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) 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) 161 CLR 342
Livesey v NSW Bar Association (1983) 151 CLR 288
Re Middle Harbour Investment Ltd (In Liq) (unreported, NSW Court of Appeal, 15 December 1976)
Sali v SPC Ltd (1993) 67 ALJR 841
Scott v Handley (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…

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AGLC
Chan v Harris (No 2) [2011] FCA 143
Case
[2011] FCA 143
Decision Date

CaseChat Overview and Summary

The case of Chan v Harris (No 2) was heard before the Supreme Court of Victoria. The dispute involved an application by the applicant, Chan, to stay an interlocutory judgment against him. The applicant sought to challenge the judgment on various grounds, including an alleged error in the judgment, the absence of leave to appeal, and claims of judicial misconduct and bias. Chan also applied for an adjournment to prepare his case further and for a notice of appearance to be submitted.

The court was required to determine whether the judgment disclosed an error, whether an appeal was reasonably arguable, and if there were special or exceptional circumstances warranting leave to appeal. Additionally, the court needed to assess whether there was a reasonable apprehension of bias or judicial misconduct and whether Chan had been given an adequate opportunity to prepare and present his case. The court also needed to decide on the validity of the adjournment application and the submission of a notice of appearance.

The court found that the judgment did not disclose an error and that an appeal was not reasonably arguable due to the absence of special or exceptional circumstances. The court dismissed the unparticularised and unsubstantiated allegations of judicial misconduct and bias, as there was no reasonable apprehension of bias. The application for an adjournment was refused as Chan had been given an adequate opportunity to prepare his case. The notice of appearance was also dismissed as it was not substantiated.

The court dismissed the applications made by Chan and refused the orders sought in prayers three and four of the notice of motion filed on 24 November 2010. The notice of motion filed on 28 January 2011 and the notice of motion filed on 2 February 2011 were also dismissed.

Orders

Orders of the court

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:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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