Chan v Perry - [2009] NSWSC 1278

CITATION: Chan v Perry [2009] NSWSC 1278

HEARING DATE(S): 16 November 2009

JUDGMENT DATE :
19 November 2009

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: Plaintiff's disqualification application on grounds of bias refused.

LEGISLATION CITED: Criminal Appeal Act 1912
Supreme Court Rules
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Chan v Reynolds; Chan v Department of Housing & Anor [2009] NSWSC 792
Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337

PARTIES: Yau Hang CHAN (Plaintiff)
Barbara PERRY (Defendant)

FILE NUMBER(S): SC 20551/08

COUNSEL: In Person (Plaintiff)
Mr M Lynch (Defendant)

SOLICITORS: Crown Solicitors (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

19 NOVEMBER 2009

20551/08 Yau Hang CHAN v Barbara PERRY

JUDGMENT

1 HER HONOUR: On 16 November 2009 I refused an application by the plaintiff, Mr Yau Hang Chan, for me to disqualify myself on the grounds of actual or apprehended bias. These are my reasons for refusing that application.

2 The proceedings are brought by Mr Chan against Ms Barbara Perry arising out of a letter sent by her to Mr Chan (alleged also to have been published to persons other than Mr Chan). The statement of claim was filed on 9 December 2008. It was amended on 5 January 2009 and again on 15 May 2009.

3 On 22 May 2009 the defendant filed a notice of motion seeking to have the proceedings dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 and, alternatively, to have the three pleadings struck out pursuant to rule 14.28 of the UCPR. The motion was made returnable on 13 July 2009 to be heard in the Defamation List that week.

4 When the proceedings came before the Court on 13 July 2009, the hearing of the motion was adjourned due to Mr Chan’s unavailability. Mr Chan did not appear on that occasion. However, material on the Court file discloses that he wrote to the defendant’s solicitor on the morning of the hearing to say that he had been assaulted earlier in the day and was unable to attend Court. The proceedings were stood over to 10 August 2009 for hearing in the Defamation List that week.

5 On 10 August 2009, the hearing of the motion was again adjourned. On that occasion, Mr Chan applied for a referral to a barrister or solicitor on the pro bono panel for legal assistance, as provided for under rule 7.36 of the UCPR (the judgment on that issue states that the application was brought pursuant to Part 66A of the Supreme Court Rules but that Part has been repealed). Mr Chan had, after the last occasion on which the proceedings were before the Court, applied for Legal Aid but that application had been refused. Nicholas J made the referral sought and adjourned the hearing of the defendant’s motion to the Defamation List of the week commencing 16 November 2009.

6 When…

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 Perry

Details

AGLC: Chan v Perry [2009] NSWSC 1278
Case: [2009] NSWSC 1278
Decision Date: 19 November 2009

CaseChat Overview and Summary

In the case of Chan v Perry, Yau Hang Chan, the plaintiff, brought proceedings against Barbara Perry, the defendant, relating to a letter allegedly sent by the defendant to the plaintiff. The proceedings involved multiple hearings and motions, including a motion by the defendant to dismiss the case or, alternatively, to strike out the pleadings. The plaintiff, appearing in person, faced difficulties in attending hearings and securing legal assistance, leading to multiple adjournments. During a hearing on 16 November 2009, the plaintiff applied for the judge, McCallum J, to disqualify himself on grounds of actual or apprehended bias, citing previous judgments against the plaintiff and the refusal of an application for an adjournment. The judge considered the application and found no basis for actual or apprehended bias. The judge reasoned that the previous judgments were based on a straightforward application of legal principles and that the prospect of criticism on appeal does not undermine judicial impartiality. The judge also noted that the allocation of cases to particular judges was due to the unavailability of another judge, and there was no evidence of bias or improper influence.

The judge found that the plaintiff's concerns about bias were unfounded and did not reflect a reasonable apprehension of partiality. The judge highlighted that the principle of judicial independence and impartiality is upheld by the understanding that judges may be subject to appeal and correction, which actually reinforces these qualities. The judge rejected the plaintiff's request for a voluntary recusal, stating that it was not appropriate given the allocation of judicial duties. The judge concluded that the application for disqualification was without merit and refused it. The judge also considered additional submissions made by the plaintiff after the hearing, which did not change the outcome. The judge maintained that the plaintiff's allegations of bias were speculative and did not provide a reasonable basis for questioning the judge's impartiality.

Orders