FEDERAL COURT OF AUSTRALIA
Chan v Harris (No. 2) [2010] FCA 1393
Citation: Chan v Harris (No. 2) [2010] FCA 1393 Parties: YAU HANG CHAN v ALAN HARRIS File number: NSD 538 of 2010 Judge: COWDROY J Date of judgment: 15 December 2010 Catchwords: PRACTICE AND PROCEDURE – Application for Preliminary discovery under O 15A r 3 and O 15A r 6 of Federal Court Rules (Cth) – No supporting affidavit filed with Application – Repeated failure to comply with the orders of the Court – Refusal at hearing to take Court to supporting evidence – Application by Respondent to strike out for want of due prosecution – Held – Application and ancillary motions dismissed for want of prosecution and lack of supporting affidavit as required by Federal Court Rules (Cth). Legislation: Federal Court Rules (Cth) O 15A r 3, O 15A r 6, O 15A r 9, O 16 r 1, O 27A r 2, O 35A r 2(1)(f), O 35A r 3(1)(a), O 52 r 17
Legal Profession Act 2004 (NSW)
Social Security Act 1991 (Cth)Cases cited: Allphones Retail Pty Ltd (ACN 008 169 090) v Australian Competition and Consumer Commission (2009) 82 IPR 121
Bahonko v Nurses Board of Victoria [2008] FCAFC 29
Chan v Harris [2010] FCA 1099
Glencore International AG v Selwyn Mines Ltd (Recs and Mgrs Apptd) and Others (2005) 223 ALR 238
Hooper and Others v Kirella Pty Ltd (1999) 96 FCR 1
JohnFairfax & Sons Limited and Another v Cojuangco (1988) 165 CLR 346
Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42
Monsanto Company v Syngeta Seeds Pty Ltd [2006] FCA 228
Optiver Australia Pty Ltd v Tibra Trading Pty Ltd and Others (2008) 169 FCR 435
R v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others (1980) 144 CLR 13
Wyeth v Secretary, Department of Health and Ageing (2009) 255 ALR 352Date of hearing: 2 November 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 103 Counsel for the Applicant: The Applicant appeared in Person Counsel for the Respondent: Ms V. Brigden Solicitor for the Respondent: Corrs Chambers Westgarth
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 538 of 2010
BETWEEN: YAU HANG CHAN
ApplicantAND: ALAN HARRIS
Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
15 DECEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Application filed on 17 May 2010 for preliminary discovery be dismissed pursuant to O 35A r 3(1)(a) of the Federal Court Rules (Cth).
2.All remaining Notices of Motion filed by the Applicant be dismissed.
3.The Applicant pay the Respondent’s costs of the Application and of all motions, including the costs of the Respondent’s motion for dismissal of the proceedings pursuant to O 35A r 2(1)(f) of the Federal Court Rules (Cth).
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…
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- AGLC
- Chan v Harris (No 2) [2010] FCA 1393
- Case
- [2010] FCA 1393
- Decision Date
CaseChat Overview and Summary
The case of Chan v Harris (No 2) involved Mr Chan as the applicant and Mr Harris as the respondent. The matter was brought before the Court due to Mr Chan seeking variations of orders made by the Court in relation to his further written submissions and other orders. He also sought leave to issue subpoenas against various parties. The Court reserved its decision until 12 October 2010.
The legal issues the Court was required to decide related to the validity of Mr Chan’s applications for variations of orders and the leave to issue subpoenas. Additionally, the Court had to determine whether Mr Chan's Notice of Appeal against the Court’s decision delivered on 12 October 2010 was properly filed, given that leave was required for the filing of an appeal against an interlocutory decision.
In its reasoning, the Court noted that it had previously dismissed Mr Chan’s disqualification application and his Notice of Motion filed on 14 September 2010. The Court had also made orders extending the time for Mr Chan to file further affidavits and submissions. However, it became evident that Mr Chan had filed a Notice of Appeal against the Court’s decision delivered on 12 October 2010 without the necessary leave, and thus the Registry was in error in accepting the Notice of Appeal. Consequently, the Court clarified that the Notice of Appeal did not operate as a stay of proceedings of the Application. The Court also made clear that it would proceed to hear and determine the remaining motions and Mr Chan's Application on 2 November 2010, without granting any further applications for extensions.
No further orders were made, and the Court confirmed that it would proceed to hear and determine the remaining motions and Mr Chan's Application on 2 November 2010, without granting any further applications for extensions.
The legal issues the Court was required to decide related to the validity of Mr Chan’s applications for variations of orders and the leave to issue subpoenas. Additionally, the Court had to determine whether Mr Chan's Notice of Appeal against the Court’s decision delivered on 12 October 2010 was properly filed, given that leave was required for the filing of an appeal against an interlocutory decision.
In its reasoning, the Court noted that it had previously dismissed Mr Chan’s disqualification application and his Notice of Motion filed on 14 September 2010. The Court had also made orders extending the time for Mr Chan to file further affidavits and submissions. However, it became evident that Mr Chan had filed a Notice of Appeal against the Court’s decision delivered on 12 October 2010 without the necessary leave, and thus the Registry was in error in accepting the Notice of Appeal. Consequently, the Court clarified that the Notice of Appeal did not operate as a stay of proceedings of the Application. The Court also made clear that it would proceed to hear and determine the remaining motions and Mr Chan's Application on 2 November 2010, without granting any further applications for extensions.
No further orders were made, and the Court confirmed that it would proceed to hear and determine the remaining motions and Mr Chan's Application on 2 November 2010, without granting any further applications for extensions.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The proceedings were again listed before the Court on 30 September 2010. Such listing followed a further Notice of Motion filed on 14 September 2010 by Mr Chan. Mr Chan sought variation of orders made by the Court in relation to his further written submissions as well as other orders. Mr Chan also sought leave to issue subpoenas against various parties. The Court reserved its decision in respect of such applications until 12 October 2010.Interlocutory Judgment 12 October 2010 On 12 October the Court delivered its decision in respect of Mr Chan’s disqualification application (see Chan v Harris [2010] FCA 1099). As previously stated, the Court dismissed such application. By such judgment the Court also dismissed Mr Chan’s Notice of Motion filed 14 September 2010. 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. The Court made it plain to Mr Chan that on 2 November 2010 the Court would proceed to hear and determine the remaining motions and his Application. Mr Chan acknowledged such fact. The Court also made clear to Mr Chan that it would not grant any application for extension and that the proceedings would be finally determined on that day. Mr Chan again acknowledged such fact. On 18 October 2010 Mr Chan filed a Notice of Appeal in the Federal Court of Australia Registry (‘the Registry’) against the Court’s decision delivered on 12 October 2010. No leave had been granted for the filing of such appeal. As the decision appealed from was an interlocutory decision, leave was required before the filing of an appeal and accordingly the Registry was in error in accepting Mr Chan’s Notice of Appeal and creating an appeal file (NSD 1372 of 2010 or ‘the Appeal Proceedings’). By letter dated 21 October 2010, Mr Chan was informed by Corrs that his Notice of Appeal was not considered to operate as a stay of proceedings of the Application. There was no reply.
Ratio Decidendi
Legal Principle Established
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