Chang v Productivity Commission

[2000] FCA 1295

FEDERAL COURT OF AUSTRALIA

Chang v Productivity Commission [2000] FCA 1295

(PAUL) MENG CHANG (ALSO KNOWN AS “MENG KOUNG CHANG”) v PRODUCTIVITY COMMISSION AND COMCARE AUSTRALIA

NG 1287 OF 1998

MOORE J
4 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1287 OF 1998

BETWEEN:

(PAUL) MENG CHANG (ALSO KNOWN AS "MENG KOUNG CHANG")
APPLICANT

AND:

PRODUCTIVITY COMMISSION
FIRST RESPONDENT

COMCARE AUSTRALIA
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

4 SEPTEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   The application is dismissed.

2.   The applicant pay the respondents’ costs of today.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1287 OF 1998

BETWEEN:

(PAUL) MENG CHANG
(ALSO KNOWN AS "MENG KOUNG CHANG")
APPLICANT

AND:

PRODUCTIVITY COMMISSION
FIRST RESPONDENT

COMCARE AUSTRALIA
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	4 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I note that no security has been provided in matter AG 125 of 1998 in accordance with the orders made on 1 December 1999.  Having regard to what was said by Mr Zipser on 7 October 1999, then appearing for Mr Chang, and subsequently said by Mr Howe, then appearing for Comcare, I am satisfied that the parties understood that the outcome of AG 125 of 1998, insofar as an application for security was concerned, would determine effectively the application for security in NG 1287 of 1998.   No security has been provided in either matter and I am satisfied Mr Chang is aware of the respondents’ wishes in NG 1287 of 1998 to finalise the matter.  He has been invited to, but declined to consent to an order that NG 1287 of 1998 be dismissed.

2. I think in the circumstances, it would be both consistent with the submissions made on 7 October 1999 and consistent with the interests of justice and not visiting any unfairness upon Mr Chang for me to now bring to a conclusion all matters presently before the Court, or at least before me, concerning Mr Chang.

3. Accordingly I order in NG 1287 of 1998 that the application is dismissed and in the circumstances I further order that the applicant pay the costs of the respondents of today.

4. The above represents reasons I gave on 4 September 2000 for making an order dismissing NG 1287 of 1998.  At that time there was no appearance for Mr Chang.  Upon adjourning the following facsimile letter was on my chambers facsimile machine:

   “I am very unwell this morning and unable to turn up at the 10:15am hearing for the above matter.  Could you reschedule it to another day?

   I apologise for the inconvenience.

   Yours sincerely

   Paul Chang”

5. The facsimile was received at 10.18am.  I am satisfied that Mr Chang was aware that the matter was listed for hearing at 10.15am (though it did not, in fact, commence until 10.30am as earlier matters ran over time).  I am not satisfied that the letter constitutes an adequate explanation of why Mr Chang did not appear and I infer from the time it was received that it constitutes an attempt by Mr Chang to delay the making of orders and not a serious attempt of substance to explain his inability to attend and why the matter should not proceed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             12 September 2000

The applicant did not appear.
Solicitor for the first respondent:	Mr J Heard, Australian Government Solicitor
Solicitor for the second respondent:	Mr M Snell, Sparke Helmore
Date of Hearing:	4 September 2000
Date of Judgment:	4 September 2000