Chan v Harris (No 3)

Case [2011] FCA 341

FEDERAL COURT OF AUSTRALIA

Chan v Harris (No 3) [2011] FCA 341

Citation: Chan v Harris (No 3) [2011] FCA 341
Parties: YAU HANG CHAN v ALAN HARRIS
File number(s): NSD 1372 of 2010
Judge: KATZMANN J
Date of judgment: 11 April 2011
Catchwords: PRACTICE AND PROCEDURE – judgments and orders – leave to appeal interlocutory judgment – whether s 24(1A) of Federal Court of Australia Act 1976 (Cth) is unconstitutional – no leave to appeal sought within time – whether to grant an extension of time for seeking leave to appeal – criteria for granting leave to appeal – sufficient doubt and substantial injustice
Legislation: Federal Court of Australia Act 1976 (Cth) ss 24(1A), 24(1C), 37M, 37P
Federal Court Rules O 29, O 52 r 10  
Judiciary Act 1903 (Cth) s 78B
Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292

Bienstein v Bienstein (2003) 195 ALR 225

Brock v Minister for Home Affairs (2008) 170 FCR 434
Cement Australia Pty Ltd v Australian Competition and ConsumerCommission [2010] FCAFC 101
Coulter v R (1988) 164 CLR 350
Chan v Harris(No 2) [2011] FCA 143
Chan v Harris [2010] FCA 1428
Chan v Harris(No 2) [2010] FCA 1393
Chan v Harris [2010] FCA 1099
Chapmans Ltd v Yandell [1999] NSWCA 361
Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141
Decor Corporation Pty Ltdv Dart Industries Inc (1991) 33 FCR 397
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
In re the Will of F.B. Gilbert(dec.) (1946) 46 SR (NSW) 318

Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Luck (2003) 203 ALR 1
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Date of hearing: 10 March 2011
Date of last submissions: 4 April 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 59
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondent: 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:

11 APRIL 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion filed on 1 November 2010 be dismissed

2.The notice of motion filed on 24 November 2010 also be dismissed.

3.The appeal is dismissed as incompetent.

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 1372 of 2010
BETWEEN:

YAU HANG CHAN
Applicant
AND:

ALAN HARRIS
Respondent

JUDGE:

KATZMANN J

DATE:

11 APRIL 2011

PLACE:

SYDNEY

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AGLC
Chan v Harris (No 3) [2011] FCA 341
Case
[2011] FCA 341
Decision Date

CaseChat Overview and Summary

In the matter of Chan v Harris (No 3), the applicant, Mr Chan, sought to appeal against decisions of the Court arising from a previous application for preliminary discovery. The primary judge had denied Mr Chan's recusal application and other associated applications, which led to this appeal. The key legal issue was whether Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) is unconstitutional and if an extension of time for seeking leave to appeal should be granted. The court was also required to decide on the criteria for granting leave to appeal.

The court examined the constitutionality of Section 24(1A) of the Act, which mandates that leave must be obtained to appeal an interlocutory judgment. The court concluded that Parliament has the power to define the jurisdiction of federal courts and impose limits or restrictions on its exercise. The reasoning was based on the authority of the High Court, which has consistently upheld the constitutionality of such legislative provisions. The court found that Section 24(1A) serves a valid purpose by controlling the demand on the court's resources and ensuring the efficient delivery of justice. The court dismissed the application for a declaration of unconstitutionality, stating that the provision merely specifies the circumstances under which an appeal may exist.

Regarding the extension of time for seeking leave to appeal, the court noted that no sufficient doubt or substantial injustice was demonstrated by Mr Chan to warrant such an extension. The court found that the proposed amendments to the notice of motion were not clearly identified and that all other prayers in the notices of motion were refused. Consequently, the court dismissed the notices of motion and the appeal as incompetent.

In conclusion, the court dismissed the notices of motion and the appeal, holding that Section 24(1A) of the Act is constitutional and that no extension of time for seeking leave to appeal was warranted. The court's decision underscores the importance of adhering to statutory requirements for appealing interlocutory judgments and the limited circumstances under which extensions of time may be granted.

Orders

Orders of the court

1. The notice of motion filed on 1 November 2010 be dismissed

2. The notice of motion filed on 24 November 2010 also be dismissed.

3. The appeal is dismissed as incompetent.

Note:

Background

Background to the litigation

The applicant, Mr Chan, is aggrieved by decisions of this Court arising out of the hearing and disposition of an application he made for preliminary discovery under O 15A rr 3 and 6 of the Federal Court Rules (“the application”). Aspects of his grievance are the subject of two earlier judgments and this judgment should be read with them. See Chan v Harris [2010] FCA 1428 and Chan v Harris (No 2) [2011] FCA 143. It is, however, convenient to refer to some of the same matters by way of background.BACKGROUND On 17 June 2010 Mr Chan filed a notice of motion seeking an order that the primary judge “not sit in and determine” the proceeding any further (“the recusal application”) and, in effect, a permanent injunction restraining the solicitors for the respondent (“Mr Harris”) from passing any information and documents to anyone other than Mr Harris. After hearing argument for a day on 17 August 2010 and again on 30 September 2010, his Honour refused to accede to the recusal application, delivering judgment on 12 October 2010. His Honour also made some other orders, including refusing leave to issue subpoenas: Chan v Harris [2010] FCA 1099. The application for the injunction against the solicitors was dismissed in a later judgment delivered on 15 December 2010: Chan v Harris (No 2) [2010] FCA 1393. Six days after the pronouncement of the 12 October judgment Mr Chan filed a notice of appeal. On its face the notice was incompetent because his Honour’s judgment was interlocutory, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) requires that leave to appeal be obtained, and Mr Chan did not obtain leave. Upon being informed that he required leave, he filed a notice of motion containing three prayers, the first of which sought a declaration that s 24(1A) was unconstitutional (“the first notice of motion”). At my invitation he amended the first prayer to also seek leave in the alternative. On 24 November 2010, however, Mr Chan filed a second notice of motion (“the second notice of motion”). I dealt with all except the first of the prayers in that notice of motion in my previous judgments. The first was in the following terms (without alteration):An order that the Notice of Motion filed by the Applicant on 1 November 2010 is to read as indicated within the following double quotation marks (instead of the wordings suggested by order no. 1 made by Justice Katzmann on 12 November 2010):Prayer no. 1 of said Notice of Motion filed 1 November 2010: “A declaration that s.24(1A) of the Federal Court of Australia Act 1976 is unconstitutional”. Order 1 of the orders I made on 12 November 2010 incorporated the application for leave I suggested Mr Chan make. It read:The appellant is granted leave to amend his notice of motion, filed on 1 November 2010, so that the first order sought reads “A declaration that s 24(1A) of the Federal Court of Australia Act 1976 is unconstitutional or, in the alternative, leave to appeal from the judgment of Cowdroy J pronounced on 12 October 2010 in proceedings NSD 538/2010 and an extension of time (if necessary)”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As the notice of appeal is incompetent and leave to appeal has been refused, the third and final prayer of the first notice of motion must also be refused. In any event, the proposed amendments were never identified. CONCLUSION All bar one of the orders Mr Chan sought in the two notices of motion have been refused. The exception relates to a request made in the second notice of motion for written reasons of a decision I made on 12 November 2010 refusing Mr Chan leave to issue subpoenas. I have given those reasons (see Chan v Harris [2010] FCA 1428 at [12]). In the circumstances it is appropriate that I dismiss both notices of motion. It follows from these reasons that I must also dismiss the appeal as incompetent.

Ratio Decidendi

Legal Principle Established

Mr Harris filed a submitting appearance.DECLARATION REFUSED Section 24(1A) of the Act provides:An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal. The judgment of the primary judge was a judgment referred to in subsection (1) in that it was a judgment of a single judge of this Court exercising the Court’s original jurisdiction: see s 24(1)(a). There are exceptions to the requirement for leave but they are irrelevant, as they confined to interlocutory judgments affecting the liberty of an individual or proceedings relating to contempt of court. See s 24(1C). As the High Court observed in Bienstein v Bienstein (2003) 195 ALR 225 at [25] and Re Luck (2003) 203 ALR 1 at [4] the usual test for determining whether a judgment or order is final rather than interlocutory is whether it finally determines the rights of the parties. There can be no doubt that a refusal to accede to a disqualification (recusal) application is interlocutory. So, too, are the other decisions under challenge in the purported notice of appeal. The application for a declaration is without merit. Section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court and “such other federal courts as the Parliament creates”. This Court was created by the Parliament through the Act. Section 77 of the Constitution provides that with respect to any of the matters mentioned in ss 75 and 76, the Parliament may (amongst other things) make laws defining the jurisdiction of any federal court other than the High Court. Although ss 75 and 76 refer to original jurisdiction, the jurisdiction authorised by s 77 includes the appellate jurisdiction: Ah Yick v Lehmert (1905) 2 CLR 593; Cockle v Isaksen (1957) 99 CLR 155 at 163. The power to define the jurisdiction includes the power to place limits or restrictions on its exercise: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 530 per Kirby J. In s 24(1A) of the Act, Parliament has defined the jurisdiction of the Federal Court in appeals from interlocutory judgments or orders so as to limit or restrict its exercise to cases justifying a grant of leave. The purpose of imposing such a limit or restriction is to ensure that unsuitable appellate proceedings do not add to the demand on the court’s limited resources, burden other parties, and cause delays to other litigants. It acts as a “control device” or “filter” and promotes the availability, speed and efficiency of justice for those appeals that should proceed to a full hearing: Coulter v R (1988) 164 CLR 350 at 359; Chapmans Ltd v Yandell [1999] NSWCA 361 at [11]. In Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 (“Davis”) at [10] the Court rejected an argument that s 24(1D)(b) of the Act was “constitutionally invalid”. Although the case concerned a different subsection of s 24, the reasoning also applies here and it provides a complete answer to Mr Chan’s request for declaratory relief. Davis was an appeal from a decision summarily dismissing an application under s 31A of the Act. Section 24(1D)(b) provides that judgments by consent or granting or refusing summary judgment under s 31A of the Act are taken to be interlocutory judgments for the purposes of s 24(1A) and (1C). Mr Davis challenged the constitutionality of that provision. The Full Court said this of his argument:Mr Davis contends that s 24(1D)(b) is constitutionally invalid because it is a usurpation of the judicial power; that the true position is that a judgment under s 31A is final in nature; and that the most recent holding by the Full Court of the Federal Court to the contrary – Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 – is plainly incorrect and should not be followed. We reject the first step in this argument. Mr Davis submitted “[i]t is not for [P]arliament to direct the courts of the land, at least [C]hapter III courts, by a deeming provision what is the legal effect of a judgment of the court whatever its true character, eg interlocutory or final” [sic]. But this proceeds only on a misconceived grasp of what s 24(1D)(b) does. It does not “direct” the Court in the exercise of its jurisdiction. Rather, together with s 24(1A), it specifies the circumstances in which an appeal may be brought only by leave. All appeals in this Court are statutory and the necessary consequence is that it is entirely within Parliament’s competence to specify the circumstances in which an appeal may exist and, if it does, the conditions attaching to its exercise. Mr Davis relied upon a number of decisions….for the proposition that the Parliament may not usurp judicial power. So much may be accepted. But s 24(1D)(b) does not tell this Court how it is to exercise a jurisdiction which exists but, in contradistinction, merely defines the circumstances in which the jurisdiction exists at all. It is only where jurisdiction exists that questions of usurpation begin to be relevant (“The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it”: Nicholas v The Queen 193 CLR 173 at 188 [23] per Brennan CJ). The challenge to the validity of s 24(1D)(b) fails.[Emphasis added.]