Chan v State of New South Wales

[2010] HCATrans 119

[2010] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S22 of 2010

B e t w e e n -

YAU HANG CHAN

Plaintiff

and

STATE OF NEW SOUTH WALES

Defendant

Summons to strike out application

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 10 MAY 2010, AT 9.38 AM

Copyright in the High Court of Australia

MR J.K. KIRK:   May it please the Court, I appear for the defendant, which is the applicant on the summons.  (instructed by Crown Solicitor (NSW))

HIS HONOUR:   Thank you, Mr Kirk.

MR KIRK:   In relation to Mr Chan, we received some material from Mr Chan on Friday, namely, two cases and also an affidavit, so I infer that he intended to come.

HIS HONOUR:   If the matter could be called three times outside the Court.

COURT OFFICER:   No appearance, your Honour.

HIS HONOUR:   Thank you.  I appreciate that your primary desire is to have the proceedings dismissed, but it is probably preferable that it be remitted to another court.  Does the Federal Court of Australia have jurisdiction?

MR KIRK: Yes, your Honour. Because it appears to be a matter arising under or involving the interpretation of the Constitution, under section 39B(1A)(b).

HIS HONOUR:   Very well.  With all respect to the submissions that you put in in writing, and that expression is not intended sarcastically, I think that is the correct course, Mr Kirk.

MR KIRK:   May I acknowledge that the delay is not inordinate in the scale of things and I cannot point to any significant prejudice.

HIS HONOUR:   In this proceeding the Court makes the following orders:

1.The proceeding be remitted to the Federal Court of Australia, New South Wales registry.

2.The proceeding continue in that court as if the steps already taken in the proceeding in this Court had been taken in that court.

3.The Registrar of this Court forward to the proper officer of that court photocopies of all documents filed in this Court.

4.The costs of the plaintiff’s writ of summons be costs in the proceedings save that in relation to the costs of the defendant’s

summons filed on 9 April 2010 there will be no order as to costs.

5.The costs of the proceedings to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that court and in the discretion of that court.

The point of the costs order is this.  You have failed to get what the summons seeks, namely, dismissal of the proceedings.  On the other hand, the plaintiff’s position is subject to the criticisms you have levelled at it.

MR KIRK:   Yes.

HIS HONOUR:   Very well.  I make those orders.  Please adjourn the Court.

AT 9.42 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.07 AM:

MR J.K. KIRK:   Again I appear for the defendant.

MR Y.H. CHAN appeared in person.

HIS HONOUR:   Mr Chan, at 9.30 this morning, which was the time when the matter was listed, it was called and you were not here and then the matter was called three times outside the Court but you did not appear before the Court.

MR CHAN:   At that time I believe is was in the elevator going to the 23rd floor, so I apologise for a few minutes delay.

HIS HONOUR:   You have been told, have you, that some orders were made remitting your proceedings in this Court to the Federal Court of Australia?

MR CHAN:   I was told that at about 10.40 – sorry, 9.40 am.

HIS HONOUR:   What do you think we should do about it now?

MR CHAN:   I wish to ask your Honour to withdraw that order so that I do not need to appeal against that.

HIS HONOUR:   Just one moment.  Just have a seat.  What is your position, Mr Kirk?

MR KIRK:   In relation to reopening I have nothing to say except this.  The order presumably has not been entered.  I have not been able to find a relevant rule, but no doubt there is an inherent jurisdiction in the Court to reopen matters, at least in extenuating circumstances, and I do not wish to be heard to suggest that your Honour does not have power to reopen.

HIS HONOUR:   Going too far to say you consent?

MR KIRK:   I consent.

HIS HONOUR:   Very well.  Mr Chan, in due course I will make an order setting aside the order made shortly after 9.30 this morning because of the fact that you are now here, but the question will then arise, what order should be made?  New South Wales has filed a summons seeking dismissal of your proceedings for want of prosecution and you accept, do you, that in certain respects you have failed to comply with the rules of the High Court?

MR CHAN:   I oppose to the dismissal and ‑ ‑ ‑

HIS HONOUR:   Yes, but just pausing there, though, you accept that you have not complied with certain rules of the High Court?

MR CHAN:   Well, as for the accusation that I have been in default of Court directions or Court rules, I wish to bring to your Honour’s attention that my opposing party, that is the defendant, State of New South Wales, has also been in default of Court directions in this case.

HIS HONOUR:   Mr Chan, whether or not anyone else has been in default of anything, you did not file a statement of claim within the correct period, did you?

MR CHAN:   I wish to make an application to amend this case to include the Commonwealth.

HIS HONOUR:   Did you hear my question?

MR CHAN:   Yes.

HIS HONOUR:   Do you accept that you did not file a statement of claim within 21 days after the filing of a notice of appearance?

MR CHAN:   The reason is ‑ ‑ ‑

HIS HONOUR:   No, what is the answer to the question?  Do you accept it or do you not accept it?

MR CHAN:   Your Honour’s question is, did I file them or did I not file that, is that right?

HIS HONOUR:   My questions is this, do you accept that you did not file a statement of claim within 21 days of the time when the defendant filed its notice of appearance?

MR CHAN:   I accept that, yes.

HIS HONOUR:   Right.  Now, let us not worry about Mr Kirk’s summons seeking dismissal of the proceedings for want of prosecution.  The normal thing that happens in this Court when an application is made in the original jurisdiction of the High Court of Australia is either that it is remitted to the Supreme Court of New South Wales or that it is remitted to the Federal Court of Australia and it only remains in this Court if neither of those courts have jurisdiction and no other court has jurisdiction unless there is some level of urgency or some level of appropriateness which justifies the matter remaining in this Court. 

Your matter can be remitted to the Federal Court of Australia which has jurisdiction to hear it.  At that hearing in the Federal Court of Australia you will have the same rights as you would have if it were heard by a single Justice of this Court.  If you are discontented with what happens in the Federal Court of Australia, you can appeal to the Full Court of the Federal Court and then you can seek special leave to appeal to this Court.  So the proposal is that the order made earlier today should be made again because that is the ordinary course which applications like yours follow, do you understand?

MR CHAN:   Your Honour, are you asking me or are you asking the ‑ ‑ ‑

HIS HONOUR:   I am asking you.

MR CHAN:   All right.  Your Honour, I oppose the remitter to the Federal Court or any other court.

HIS HONOUR:   Yes.  Why?

MR CHAN:   On the basis that this is the – well, as your Honour has just mentioned, I can demonstrate a certain level of appropriateness and, in fact, it is essential – it is my contention that it is essential that this case has to remain in the High Court otherwise I would not be able to receive a fair hearing in the court below regardless of whether it is a Federal Court or not.  I can mention to your Honour that there is a criminal matter going on between me and some staff in the registry of the Federal Court, just a few levels down from this Court, and I can give a brief description of that in just a few sentences, because it is still pending before the criminal law enforcement authorities, including the New South Wales Police.

What happened was that in July last year I filed a case, a Federal Court case – I commenced a Federal Court case in the court, I think on level 17 of this building, in the Federal Court registry and then after about two months the case was dismissed with some orders in favour of me but not to my satisfaction, that is, I have got some orders – I have succeeded in getting certain orders in favour of me that I was seeking but not enough.  I thought it was not enough – that has not satisfied me and has not satisfied my expectation of the case.  Therefore, I wish to appeal against the judge’s decision in that Federal Court.

Then there was a conspiracy among the court staff and also some of the government staff, or whoever associated with them, working in this building trying to obstruct me from filing my appeal.  While on one day I was trying to file my notice of appeal, for no good reason I was obstructed from doing that because some staff in the back office of the registry, Federal Court registry – I presume that is what happened, all right.  It still needs further investigation and I have no powers to investigate that obviously.  I have to rely on law enforcement authorities to do that for me.  But that is what I presume what happened and what I think probably has happened.

Some persons in the back office, or somewhere, in connection with the Federal Court registry call security staff to forcefully – to interrupt, first of all, interfere with my filing process.  I was attempting to file my notice of appeal.  They forcefully removed me, assaulted me and, I would say, arrested me and then brought me down to the ground floor and throw me out of the door of this building.  In fact, your Honour has got a witness here, I think, and he is sitting just at the back with the black vest and white shirt with very short hair; the man there.  I believe he knew what happened and he could be a witness to give evidence on that.

HIS HONOUR:   Yes.  Now, Mr Chan ‑ ‑ ‑

MR CHAN:   What happened was that ‑ ‑ ‑

HIS HONOUR:   Mr Chan, have you anything else you want to say that is relevant to the question of whether the matter should be remitted to the Federal Court of Australia?

MR CHAN:   Okay.  What I am saying is I am trying to substantiate my contention that it is inappropriate to remit to the Federal Court in such circumstances when the criminal offence is still being dealt with in connection with some of the Federal Court staff there.  It is even more serious than this, in fact, and I can inform your Honour.  What happened was that I reported that to the police as – I complained to the police and reported that incident to the police as an assault on me, interfering with the filing of my notice of appeal, which is proper and therefore the police investigate it and the police officer – the junior officer dealing with that, investigating that, got the CCTV footage from this building to see what happened – to observe what happened at the time of the incident.

This police officer is called Kelly Glazer.  I think that is her full name.  Constable Glazer, after some investigation, told me that my written statement to the police did not conform to the CCTV footage obtained by her in the course of her investigation of that incident.  She told me that something that I said how it happened on my written statement given to her for the purpose of the investigation is different from what she saw on the CCTV footage that she obtained.  She accused me of lying to her and threatened to charge me.  I told her – I asked her why she think it was different and she did not tell me much, but she did tell me something.  She did tell me, for example, I said I was held by the hands in such a way and then what – and she said, no, she saw on the CCTV footage the person accused of the assault on me did not touch me.  That is on the CCTV footage that she saw.

HIS HONOUR:   Mr Chan, we are moving a long way away from the question.  Is there anything further you wish to say?

MR CHAN:   Yes.  My point here is, your Honour, I told her the CCTV footage has been edited and she did not believe me and I am still arguing with the police even now.  So there is a criminal matter going on and I do not think – I think there are some people who are against me in the Federal Court registry and it is not appropriate for this matter to be remitted to that for that reason.  That is not the only reason, okay.

HIS HONOUR:   Just one moment.

MR CHAN:   Okay.

HIS HONOUR:   Mr Kirk, does the Supreme Court of New South Wales have jurisdiction?

MR KIRK:   Yes.

HIS HONOUR:   Thank you.  What about a remitter to the Supreme Court of New South Wales?

MR CHAN:   Your Honour is asking me?

HIS HONOUR:   Yes.  Do you have any objection to this matter being remitted to the Supreme Court of New South Wales?

MR CHAN:   Yes, I do, I do.

HIS HONOUR:   What is that?

MR CHAN:   The Supreme Court is just as worse.  The Supreme Court is even – well, in fact, the trigger for me to come to the High Court to launch this case, which is a very serious consideration for me – people do not come to the High Court for a petty matter and for something that they do not think is important enough.  The Supreme Court registry has caused me to do this.  They are the trigger and one of the reasons is because I have got Supreme Court cases there and also other cases appealing from the court below to the Supreme Court of New South Wales which I need to apply for fee waivers or a postponement in order to be able to commence the process or take any steps. 

For example, if I need to file a notice of motion there is a fee and if I need a transcript there is a fee and if I need to make a request for certain documents, including a subpoena, the issue of a subpoena there is a fee.  Well, there is a fee for just about every step and I need to rely heavily on the fee – on the application process for fee waiver or a postponement until conclusion of the matter, so that my finances will not impede my access to the court.  The trigger for me to come to this Court is that they refuse my application for postponement or waiver of the relevant fees so that I cannot exercise my right, so that I cannot access the court either for reasons that I cannot even commence the case.

I cannot even appeal from the courts below or after commencement I cannot take any necessary and essential steps to handle my case, for example, to file a notice of motion, to request the issue of subpoena, to seek evidence.  Well, just about anything, they require fees, they require the payment of some fees.  Therefore, as a result, I have got cases that have merits and that I should be able to win, they fail or was dismissed or was terminated due to this type of obstruction by refusal to – of my application to postpone or waive a fee for the taking of a certain step in the Supreme Court.  So that is the trigger of my coming to this Court.  Without that I am legally dead.  If I cannot resolve this problem of the fee, I am legally dead in Australia.  This is the trigger for the challenge to the legislation authorising the court to charge a fee without agreeing to postpone the fee.

HIS HONOUR:   Yes.  Is there anything else you want to say as to why the matter should not be remitted either to the Federal Court or the Supreme Court?  You have given reasons, but are there any further reasons?

MR CHAN:   Yes. 

HIS HONOUR:   Yes.  Well, could you state them fairly briefly because the time devoted to these applications is running out.

MR CHAN:   Okay.  If your Honour is asking for – I am not sure I know the true intention behind your Honour’s question.  Is your Honour looking for evidence?  Are you asking me for evidence to support my contention?

HIS HONOUR:   No.

MR CHAN:   Is that what your question is about?

HIS HONOUR:   I am simply asking you for any further reason you wish to advocate against the matter being remitted either to the Federal Court of Australia or the Supreme Court of New South Wales.

MR CHAN:   Yes, okay.  Well, following from my first reason, just mention about the Supreme Court, it follows from that naturally, if this case is remitted back to the Supreme Court, the same thing happen.  I cannot ‑ ‑ ‑

HIS HONOUR:   Yes, you have said that.

MR CHAN:   Yes, I cannot take steps.

HIS HONOUR:   You have said that.

MR CHAN:   Okay.  There is also another reason which is obvious, I think it goes without saying.  I cannot obtain a fair hearing in the Supreme Court either because of the fees dispute or because there are many procedural matters that I need to rely on the registrars there to approve and to process and I have got difficulties achieving that.  For example, I give your Honour an example so that you understand what I am referring to.  For example, when a judge of a Supreme Court made an order and I wish to obtain a written confirmation of that order, that is, I wish to obtain a written record of that order in proper form, the registrar, I have discovered that to my detriment, they sometimes do not produce that to me.  They simply ignore me so that I do not have – I cannot even get a written record of the judge’s orders in proper form. 

Sometimes they try to – when I have become persistent, kept writing to the registrar asking for a written order in the proper form, they sometimes try to avoid my persistence by simply sending me a letter saying that the judge said so and so, in an informal letter signed by an anonymous staff who is not as associate of the judge and who is not the registrar and I do not know who that is, just any staff, an informal letter telling me that you do not need that, I do not need what I was asking for, that is, a written order in proper form, that is, they have even gone to that extent to prejudice my case.

HIS HONOUR:   You are repeating yourself.

MR CHAN:   Yes.

HIS HONOUR:   Yes, thank you.

MR CHAN:   There are other reasons.  The third reason is I cannot prove that and it is obvious that I cannot prove that, but that is true.  There is corruption with in the Supreme Court registry staff – well, in fact, there is corruption among every department of the government.

HIS HONOUR:   Yes, thank you.  I think I understand your general position, Mr Chan.  Would you like to have a seat?

MR CHAN:   Yes.  If your Honour allows, the benefit for this case to remain in the High Court is because it is – I believe I will get a fair hearing in the High Court, better than ‑ ‑ ‑

HIS HONOUR:   Well, that is very good of you to say so, but I think you have been making these points repeatedly for some time now.  Would you sit down.

MR CHAN:   Yes.  Also about the jurisdiction ‑ ‑ ‑

HIS HONOUR:   Mr Chan, I think you have made your arguments, have you not?  To go on would be merely repetitious, would it not?

MR CHAN:   Okay.  I have got other new reasons too, for example, about the jurisdictional issue.  If it is remitted to the Federal Court, because I need – in the course of this case I need to ask for certain documents from another State, such as Victoria or South Australia, to support my arguments in this case.  Those materials probably cannot be ordered by a New South Wales

Federal Court or a New South Wales Supreme Court and if they do order, they may be ignored by the other State courts.

HIS HONOUR:   Yes, all right.  I understand that point.  You have nothing further?

MR CHAN:   Yes, I do, in fact. 

HIS HONOUR:   Do you have something relevant further to say?

MR CHAN:   Yes.  If your Honour would allow me to just look through my document, just quickly, I will have further grounds to support – because I cannot remember all the grounds that I have ‑ ‑ ‑

HIS HONOUR:   You have been talking for more than 20 minutes.  That is more than the conventional period of time in applications of this type.

MR CHAN:   I am sorry about that.  I did not know there is a convention here.

HIS HONOUR:   Yes.  Just sit down, Mr Chan.

MR CHAN:   Thank you.

HIS HONOUR:   What do you want to say, Mr Kirk?

MR KIRK:   Your Honour, I would briefly address three issues, your Honour.

HIS HONOUR:   I do not want to hear you unless there is some particular complaint you want to have about the terms in which those arguments were put.

MR KIRK:   No, your Honour.  Would it be useful if I addressed the issue of which court it might be remitted to?

HIS HONOUR:   What is wrong with the Federal Court?

MR KIRK:   Nothing.

HIS HONOUR:   What is wrong with the Supreme Court?

MR KIRK:   Nothing.

HIS HONOUR:   When this matter was called at 9.30 today there was no appearance on behalf of the plaintiff.  The plaintiff is the respondent to a summons dated 9 April 2010 which was filed by the defendant seeking dismissal of the main proceedings for want of prosecution.  The matter was called three times outside the Court.  There was still no appearance.  Orders remitting the proceedings as a whole to the Federal Court of Australia were then made and the Court adjourned.  Shortly afterwards the plaintiff arrived in the Registry and the matter has been restored to the list.  The defendant consents to an order setting aside the order remitting the matter to the Federal Court of Australia so that the matter can proceed, as it were, de novo. 

The background is as follows. On 8 February 2010 the plaintiff filed a writ of summons. It seeks orders declaring void Schedule 1 of the Civil Procedure Regulation 2005 (NSW). The plaintiff complains that the Schedule imposes fees for taking steps in the Supreme Court of New South Wales. He contends that he belongs to a class of person lacking the money to pay the fees. He contends that the Schedule abolishes the appellate jurisdiction of this Court under section 73(ii) of the Constitution. He also contends that the Schedule contravenes an alleged constitutional principle of equal treatment because it discriminates against the class of persons to which the plaintiff belongs.

The operative part of the writ of summons describes the “nature of the claim made and the relief which the plaintiff seeks”.  Rule 27.03.3(b) of the High Court Rules provides that:

In a proceeding commenced by Writ of Summons:

. . . 

(b)if a Statement of Claim is not filed and served with the writ, the plaintiff shall file and serve its Statement of Claim within 21 days after the filing of a notice of appearance....

Since no statement of claim was filed and served with the writ, the plaintiff was under a duty to file and serve a statement of claim within 21 days of 17 February 2010, that is, 10 March 2010.  Rule 27.06.1 provides:

No later than 14 days after the time prescribed by rule 27.01 for a defendant to file a notice of appearance, the plaintiff shall file and serve on all  parties, whether or not those parties have appeared, a summons for directions returnable before a Justice.

Rule 27.06.2 obliged the plaintiff to file with the summons for directions an outline of submissions on various matters, including reasons why the matter should not be remitted to another court.  The last day for compliance with those duties was 8 March 2010.  The plaintiff has failed to comply with both rule 27.03.3(b) and rule 27.06.1.  That failure has continued until this day.  As indicated earlier, on 9 April 2010 the defendant filed a summons seeking dismissal of the plaintiff’s proceedings for want of prosecution. 

Today, on being asked whether it was appropriate to remit the matter to the Federal Court of Australia, the plaintiff advanced these submissions.  He submitted that it was a matter of necessity that this case be heard in this Court.  He said if it were not so, he would not be able to receive a fair hearing in any court below whether it was the Federal Court or not.  He said that there was a criminal matter going on between him and the staff of the Federal Court.  The matter was still pending before criminal law enforcement authorities, including the New South Wales Police. 

According to the plaintiff, the background was that he initiated a case in the Federal Court of Australia which after three months was dismissed.  The court made certain orders favourable to the plaintiff but they were not orders which fully met the plaintiff’s desires.  The plaintiff therefore wished to appeal.  According to the plaintiff, there is a conspiracy among the court staff and the staff of the government – he did not say which government – working in this building trying to obstruct him from filing that appeal.  He referred to an incident in which one day he was removed from the building as a result of which he complained to the police.  The police investigated the matter and after examining the CCTV tapes, the relevant police officer informed the plaintiff that what they revealed did not correspond with the terms of his complaint to the police. 

Another reason why the Federal Court is said to be an unfit place to which to remit the matter is that it will be necessary for the plaintiff to obtain documents from other States in order to support his arguments and that it was beyond the power of the Federal Court to make orders securing those documents. 

The plaintiff also gave various reasons why the Supreme Court of New South Wales would not be an appropriate court to remit the matter to.  The first of the reasons was the same as the last of the reasons indicated for the Federal Court, namely, that it lacked power to secure documents from other States.  A second reason was that the plaintiff has on foot litigation in which he needs to apply for fee waivers in order either to commence the proceedings or to take steps in the proceedings and the need to apply to the registry of the Supreme Court of New South Wales is obstructive of him taking any steps in the proceedings. 

A third reason offered against the suitability of the Supreme Court of New South Wales was that he is not able to obtain a fair hearing in that court because the proceedings depend on the discretion of registrars.  He claims that those registrars have ignored him and, for example, prevented him putting the orders of judges in proper form. 

It is not necessary to say anything about what the plaintiff has said in relation to the Supreme Court of New South Wales save to say that nothing in these reasons is intended to indicate concurrence with the plaintiff’s submissions.

So far as the Federal Court is concerned, there is no reason to doubt that when remitted, as it will shortly be, the matter will be dealt with justly in the Federal Court of Australia.  That court will have the opportunity to read the transcript of what has taken place this morning and these reasons for judgment and will, to the extent necessary, if at all, adjust its procedures to meet the circumstances of the case. 

It seems to me to be inappropriate to deal with the substance of the arguments which the defendant would wish to advocate for why the proceedings should be struck out for want of prosecution.  The defaults have not been on foot for a long time and, as the defendant fairly concedes, the prejudice to the defendant may not be great.  There is, however, considerable force in the arguments which the defendant has employed in that there is no evident willingness to remedy those defaults.  Having said that, I make the following orders:

1.That the proceeding be remitted to the Federal Court of Australia New South Wales registry.

2.The proceeding continue in that court as if the steps already taken in the proceeding in this Court had been taken in that court.

3.The Registrar of this Court forward to the proper officer of that court photocopies of all documents filed in this Court.

4.The costs of the plaintiff’s writ of summons be costs in the proceeding save that in relation to the costs of the defendant’s summons filed on 9 April 2010 there will be no order as to costs.

5.The costs of the proceeding to the date of remission, including the costs of this order, are to be according to the scale applicable to proceedings in this Court and thereafter according to the scale applicable to that court and in the discretion of that court.

6.On the application of the plaintiff and with the consent of the defendant I set aside the orders made in similar terms to those just made shortly after 9.30 this morning.

The Court now adjourns.

AT 10.45 AM THE MATTER WAS CONCLUDED