FEDERAL COURT OF AUSTRALIA

Chan v Harris (No. 2) [2010] FCA 1393

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 Law Search on the Court’s website.

REASONS FOR JUDGMENT

BACKGROUND

1    These proceedings arise out of an application (‘the Application’) made by the applicant (‘Mr Chan’) under O 15A r 3(2)(a), O 15A r 3(2)(b) and O 15A r 6 of the Federal Court Rules (‘the Rules’) seeking identification of a potential respondent and for preliminary discovery. The orders sought can be summarised as follows:

(a)    An order requiring the Respondent (‘Mr Harris’) to attend before the Court to be examined under Order 15A rule 3(2)(a) of the Federal Court Rules in relation to the description of persons specified in paragraph 1 of the Application, namely persons involved in the production of ‘Participation Reports’ concerning Mr Chan and persons involved in the various activities outlined in Mr Chan’s Statement of Claim;

(b)    An order under Order 15A rule 3(2)(b) requiring Mr Harris to provide discovery of all documents which are or have been in his possession relating to the description of the above persons;

(c)    An order under Order 15A rule 6 requiring Mr Harris to provide discovery of any document of the kind described in Order 15A rule 6(c) of the Rules; and

(d)    An order that Mr Harris produce copies of the documents discovered referred to in paragraphs (b) and (c) above.

2    Order 15A rule 3 relevantly provides as follows:

Discovery to identify a respondent

(1)    Where an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this rule called the person concerned ) and it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had possession of any document or thing, tending to assist in such ascertainment, the Court may make an order under subrule (2).

(2)    The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, shall:

    (a)    attend before the Court to be examined in relation to the description of the person concerned;

    (b)    make discovery to the applicant of all documents which are or have been in the person's or its possession relating to the description of the person concerned.

    (c)    …

3    Order 15A rule 6 relevantly provides as follows:

Discovery from prospective respondent

Where:

(a)    there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained;

(b)    after making all reasonable inquiries, the applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief; and

(c)    there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had possession of any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist in making the decision;

the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).

4    Further, O 15A r 9 relevantly provides as follows:

Procedure

(1)    An application under rule 3 shall, unless the Court or a Judge otherwise orders, be served personally on the person concerned.

(2)    An application under rule 6 shall, unless the Court or a Judge otherwise orders, be served personally on the person mentioned in paragraph (a) of that rule.

(3)     An application under any rule of this order shall be supported by an affidavit:

    (a)    stating the facts upon which the applicant relies; and

    (b)    specifying or describing the documents or any class of documents in respect of which an order is sought.

    (c)    …

5    The Application was not supported by an affidavit as required by O 15A r 9(3) of the Rules.

6    Between the filing of the Application on 17 May 2010 and the hearing of the Application on 2 November 2010, Mr Chan filed six motions. The motions raised numerous issues including whether the Court, constituted by myself, should disqualify itself from hearing the proceedings. Mr Chan has also filed 15 affidavits in these proceedings, each of which was affirmed by himself. The majority of such material consists of various documents and articles which have no relevance to the proceedings currently before the Court (see Chan v Harris [2010] FCA 1099 at [20], [32] and [33]). Mr Chan has also filed extensive written submissions throughout the proceedings in 12 separate documents addressing both relevant and irrelevant issues to the proceedings before the Court. After the conclusion of the hearing, Mr Chan also filed, without leave, two further documents containing submissions.

7    On 12 August 2010 Mr Harris filed a Notice of Motion seeking an order that Mr Chan’s proceedings be dismissed for want of due prosecution.

8    On 12 October 2010 the Court delivered its decision in respect of a number of issues raised for determination by Mr Chan’s motions (see Chan v Harris [2010] FCA 1099). Principally such judgment determined the question as to whether the Court, as currently constituted, should disqualify itself from hearing the proceedings. By such judgment the Court declined to disqualify itself.

DISMISSAL FOR WANT OF PROSECUTION

9    These reasons will firstly consider Mr Harris’ motion that the proceedings be dismissed for want of prosecution.

10    Mr Harris’ motion is based upon Mr Chan’s failure to comply with the requirements of the Rules and his failure to comply with the directions of the Court. Each matter will be considered separately hereunder.

FAILURE TO COMPLY WITH THE RULES

11    Mr Harris points to the fact that the Application is not supported by an affidavit but rather by a Statement of Claim filed 17 May 2010 (‘the Statement of Claim’). It is submitted that the Statement of Claim is not evidence and is not admissible against Mr Harris as evidence. It is further submitted that even if the matters referred to in the Statement of Claim were deposed to by Mr Chan in an affidavit which complied with the Rules, much of the content of the Statement of Claim would be inadmissible.

12    As the Court has referred to above, O 15A r 9(3) of the Rules imposes a mandatory requirement that an affidavit be provided in support of an application under O 15A of the Rules.

Mr Chan’s Statement of Claim

13    The Statement of Claim filed by Mr Chan apparently in support of the Application is voluminous. The Statement of Claim alleges that Mr Chan rents his accommodation in Riverwood NSW; that he is unemployed; that he is dependent upon receipt of social security benefits known as the Newstart Allowance to pay for his food and to pay rent; and that if such payments are stopped, he will be unable to pay his rent in which event his tenancy will be terminated.

14    The Statement of Claim alleges that Mr Harris works at premises situated at Level 3, 41-45 Rickard Road, Bankstown, at which address an office is operated by Local Employment and Training Solutions and CatholicCare (for present purposes, both organisations will be hereafter referred to as ‘LETS’ unless otherwise indicated). Mr Chan claims that both organisations are service providers within the meaning of the Social Security Act 1991 (Cth) (‘the Social Security Act’).

15    Mr Chan asserts in the Statement of Claim that a report concerning him entitled ‘Participation Report’ was written by Mr Harris in Mr Harris’ employment with LETS and then forwarded to Centrelink on 29 April 2010. Mr Chan claims that there had been previous Participation Reports prepared by Mr Harris prior to 29 April 2010.

16    Mr Chan claims the Participation Reports and other documents have made ‘fraudulent or defamatory allegations’ against him and that they are part of a ‘conspiracy to injure’.

17    Mr Chan claims that the LETS decision-maker or decision-makers failed to exercise the necessary caution in preparing the reports and that such decision-maker/s were recklessly indifferent to the extremely serious consequences of the submission of the said Participation Reports and documents to Centrelink. Mr Chan alleges that the reports were prepared ‘out of malice’ or alternatively that the decision-maker/s acted negligently and/or recklessly. He also alleges abuse of power under the Social Security Act by the decision-maker/s of LETS in the preparation of the reports.

18    Mr Chan claims that he has been unable to identify certain persons whom he refers to as ‘stake holders’ who have played ‘a critical role in the making of the decision causing the submission of the said Participation Report and documents to Centrelink, or may have substantial influence on the LETS Decision-maker(s) in their decision-making process’. Mr Chan claims that such persons may not properly be described as ‘LETS decision-makers’.

19    Mr Chan claims that the Participation Reports have caused shock, anxiety and mental distress and the Statement of Claim indicates that he intends to claim damages for injuries so sustained.

20    Mr Chan seeks an order under O 15A r 3(2)(a) of the Rules requiring Mr Harris to attend Court to be examined for the purpose of identifying the description of a potential respondent to Mr Chan’s potential claim and, pursuant to O 15A r 3(2)(b), to produce all documents which may be in Mr Harris’ possession relating to the persons to be identified. Mr Chan also seeks preliminary discovery under O 15A r 6 from Mr Harris in order to enable him to make a decision as to whether to commence a proceeding in this Court.

21    Before the Court can make any order under either O 15A r 3(2)(a), O 15A r 3(2)(b) or O 15A r 6, Mr Chan must satisfy the Court that he has ‘made reasonable inquiries’ in relation to the information sought by the Application (see O 15A r 3(1) and O 15A r 6(b)).

22    Paragraph 40 of the Statement of Claim states:

40.    The Applicant, having made reasonable enquiries, is unable to ascertain the description of certain person(s) (called “the person concerned” in Order 15A r.3 of Federal Court Rules), relevant to a cause of action disclosed in or related to the pleadings inter alia of this Statement of Claim, sufficiently for the purpose of commencing a proceeding in the Court against that person(s).

23    Paragraphs 45 and 46 of the Statement of Claim state:

45.    After making all reasonable inquiries, the Applicant has not sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain that relief against the Respondent as mentioned above.

46.    The Applicant therefore asks the Court to order that the Respondent shall make discovery in accordance with Order 15A r.6 of Federal Court Rules to the Applicant of any document of the kind described in Order 15A r.6(c) of Federal Court Rules.

24    The deficiency in Mr Chan’s application in respect of the absence of a supporting affidavit was specifically drawn to Mr Chan’s attention by Mr Harris’ solicitor, Corrs Chambers Westgarth (‘Corrs’), by its letter dated 11 June 2010 (‘the Corrs letter’). Mr Harris submits that such omission is, of itself, sufficient for the Application to be dismissed. No steps were taken thereafter by Mr Chan to rectify such deficiency, even though the Court also expressly drew Mr Chan’s attention to such deficiency on 17 August 2010 after which the following exchange occurred:

MR CHAN: My answer to your Honour is simple. As soon as we have dealt with as to which judge is sitting, that preliminary question, I will do that and make up any defects in the case.

HIS HONOUR: Well, Mr Chan, your thinking is wrong because your application must fail at the outset if you do not comply with the rules unless the court grants you dispensation.

MR CHAN: And also your Honour refer to the mandatory word, shall be supported by an affidavit. However, when I file the application and inquire, I make inquiries, the registry did not state any deadline for the filing of that affidavit. And, therefore, I took that that affidavit can be filed at any time when necessary.

HIS HONOUR: Well, that is your interpretation of the rule. Your hearing is now. The hearing is taking place now.

25    The Corrs letter also indicated to Mr Chan that Mr Harris was an employee of CatholicCare Sydney. Such letter advised Mr Chan that Mr Harris, as an employee of CatholicCare Sydney, was not in possession of any documents of the kind sought by the Application and that his employer, CatholicCare Sydney, held such documents.

26    The Corrs letter put a proposal to Mr Chan that if he agreed to the substitution of CatholicCare Sydney in lieu of Mr Harris as respondent, CatholicCare would consent to producing the documents in its possession in answer to orders 2, 3, and 4 of the application. Mr Chan declined to accept such offer.

Finding

27    The absence of a supporting affidavit as required by O 15A r 9(3) is fatal to the claim of Mr Chan in these proceedings. Even taking into account Mr Chan’s position as a self-represented litigant, the Court is satisfied that Mr Chan has been warned on multiple occasions of the requirements of the Rules. The Court cannot proceed to assess such an application without evidence that the applicant has in fact made reasonable inquiries in regard to his claims. Such evidence is to be constituted by an affidavit as required by O 15A r 9(3) of the Rules. The Statement of Claim cannot constitute such evidence and the broad assertions contained in it provide no details of the nature of inquiries made by Mr Chan, of whom such inquiries were made, when such inquiries were made, and the result of those inquiries. This is the very detail that is required to be placed before the Court before the requirements of O 15A r 3(1) and O 15A r 6(b) are fulfilled. Accordingly the Court is satisfied that the Application must fail.

28    Despite such finding, in the interests of completeness, the Court will now proceed to address the claims of Mr Chan, notwithstanding the procedural deficiency.

CLAIM UNDER ORDER 15A RULE 3

29    Order 15A rule 3 of the Rules is designed to provide a mechanism for an applicant to request preliminary discovery of a respondent to enable that applicant to ascertain the correct respondent against which to bring a substantive application in circumstances where the applicant is unsure as to the identity of the correct respondent.

30    Mr Chan has provided no evidence that, having made ‘reasonable enquiries’ he has been unable to ascertain the description of the correct respondent sufficiently for the purpose of commencing proceedings against that person. The word ‘description’ is defined in O 15A r 1 as follows:

“description” includes the name, and (as applicable) the place of residence, registered office, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding, and also whether that person is an individual or a corporation.

31    As a further requirement of O 15A r 3, it must be shown that the person against whom the order is sought ‘has or is likely to have knowledge of the facts, or has or is likely to have or has had or is likely to have had possession of any document or thing, tending to assist in such ascertainment…’ (see O 15A r 3(1)).

32    There is no evidence before the Court by Mr Chan of any such likelihood.

33    In the exercise of the Court’s discretion to grant an order under O 15A r 3, the Court must consider whether there is the prospect of the applicant succeeding in the proceedings against the person to be sued: see generally Monsanto Company v Syngeta Seeds Pty Ltd [2006] FCA 228. The claim must be more than a claim worth investigating, it must have some prospect of succeeding: see Allphones Retail Pty Ltd (ACN 008 169 090) v Australian Competition and Consumer Commission (2009) 82 IPR 121 at [51]-[54]. It is essential that on an application for preliminary discovery that an applicant provide evidence in support of his claim for final relief: see Wyeth v Secretary, Department of Health and Ageing (2009) 255 ALR 352 at [24]-[25].

34    In Hooper and Others v Kirella Pty Ltd (1999) 96 FCR 1 the Full Court of the Federal Court of Australia addressed the requirements of an application under O 15A r 3. In respect of possible causes of action, the Full Court said at [33]:

… [T]he applicant is not required to demonstrate the existence of a prima facie case against the prospective respondent: Levis v McDonald [(1997) 75 FCR 36], at 41, 44; Stewart v Miller [[1979] 2 NSWLR 128] at 139-140. Nonetheless, the power conferred by O 15A, r 3 is not to be used in favour of a person who intends to commence “merely speculative proceedings”: Stewart v Miller at 140; Levis v McDonald at 44. A material factor in the exercise of the Court's discretion is the prospect of the applicant succeeding in proceedings against the person he or she wishes to sue: Exley v Wyong Shire Council (unreported, Supreme Court, NSW, Master Allen, 10 December 1976); 10 December 1976, Master Allen, noted Ritchie's Supreme Court Procedure (NSW) par [13,004].

35    The Statement of Claim purports to state Mr Chan’s potential causes of action as follows:

36.    The causes of action available to the Applicant against the Respondent and other persons liable for the production of the said Participation Reports and documents include fraud, defamation, abuse of powers and oppression under the Social Security Act 1991, and conspiracy to injure the Applicant.

37.    The Applicant claims the various relief sought in this Statement of Claim in order to ascertain the identity of the potential defendants for the abovementioned causes of action, and to obtain discovery to consider whether to commence action against the Respondent and the said person(s).

38.    The Applicant is considering an application to the court for a partial exemption under s.542H(1) of the Social Security Act 1991 from the requirements of s.624 – 630 of the Social Security Act 1991.

39.    The documents to be obtained by the relief claimed here by the Applicant will assist the Applicant’s decision in relation to the making of an application to the court for such an exemption under s.542H(1) of the Social Security Act 1991.

36    The Court has not been taken to any evidence that Mr Chan has suffered any actionable wrong and accordingly it is not possible for the Court to discern any link between Mr Chan’s claims and any damage he might have suffered. Mr Chan’s assertions of his cause of action are wholly speculative. In the exercise of the Court’s discretion, the Court must be satisfied that the making of an order for discovery is necessary to provide Mr Chan ‘with an effective remedy in respect of the actionable wrong of which he complains’: see Hooper at [34] quoting John Fairfax & Sons Limited and Another v Cojuangco (1988) 165 CLR 346 at 357.

37    As the Court is not satisfied that the requirements of O 15A r 3 have been complied with, it dismisses the Application under such ground.

CLAIM UNDER ORDER 15A RULE 6

38    Mr Chan also makes an application under O 15A r 6 of the Rules. Put simply, O 15A r 6 of the Rules provides a mechanism for an applicant to request discovery from a respondent in order to ascertain whether or not to commence a proceeding against that respondent.

39    In applying for discovery pursuant to O 15A r 6, an applicant must comply with the requirements set out in subparagraphs (a), (b) and (c) of such rule (see Hooper at [38]). That is, the Court must have reasonable cause to believe that Mr Chan has or may have a right to obtain relief against Mr Harris; that after making all reasonable inquiries, Mr Chan does not have sufficient information to enable him to make a decision whether to commence a proceeding to obtain that relief and finally that there is a reasonable cause to believe that Mr Harris has, is likely to have, has had or is likely to have had possession of any document relating to the question whether Mr Chan has the right to obtain relief against him and whether inspection of the document by Mr Chan would assist in making that decision.

40    There is no evidence before the Court that Mr Chan has a possible right to obtain relief against Mr Harris, nor of any inquiries Mr Chan has made regarding any action against Mr Harris, nor of any likelihood that Mr Harris has any relevant documents in his possession. Accordingly the Court cannot be satisfied that the requirements set out in subparagraphs (a), (b) and (c) of O 15A r 6 of the Rules have been complied with. As previously stated, the assertions in the Statement of Claim do not constitute evidence. Further, the allegations in the Statement of Claim, even if the Court could take them into consideration, do not assert any detail of the inquiries which Mr Chan has made; nor do they indicate that Mr Harris has or is likely to have documents in his possession; nor do they provide information from which the Court can reasonably infer that Mr Chan has a right of action against Mr Harris.

41    The Court observes that in circumstances where Mr Harris is a mere employee of the organisation with which Mr Chan has dealt, it seems unlikely that Mr Chan could have any claim against Mr Harris is his personal capacity and further that Mr Harris would have any relevant documents in his personal possession.

42    Order 15A rule 6 does not permit preliminary discovery against a respondent to enable an applicant to determine if a right exists to obtain relief from a third party: see Glencore International AG v Selwyn Mines Ltd (Recs and Mgrs Apptd) and Others (2005) 223 ALR 238 at [11]. Discovery can only be ordered from the person against whom there is reasonable cause to believe the applicant is or may be entitled to obtain relief. In Hooper the Full Court of the Federal Court of Australia said at [39]:

… O 15A, r 6(a) poses an objective test, namely whether there is reason to believe that the applicant has or may have the right to obtain relief from the prospective respondent: Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549 (Sackville J), at [28]. While it is not necessary for the applicant to demonstrate a prima facie case, it is not enough merely to assert that there is a case against the prospective respondent: CCA Beverages (Adelaide) Ltd v Hansford (unreported, , O’Loughlin J, 15 November 1991 at 12).

43    In Optiver Australia Pty Ltd v Tibra Trading Pty Ltd and Others (2008) 169 FCR 435 the Full Court of the Federal Court of Australia said at [48]:

It was not incumbent upon Optiver to establish every element of the relevant causes of action, but a reasonable cause to believe that it “has or may have” the right to relief alleged. Of course, this is not to say that it is not necessary to examine the various elements of the potential cause of action that is sought to be relied upon to determine whether there is a reasonable cause to believe that each of the necessary elements exist (see Austrac Operations Pty Ltd v State of New South Wales (2003) ATPR 41-960 at [11]; Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288 at [5]; Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd (2007) 164 FCR 450 at [44]). Nor can an application for preliminary discovery be sustained without evidence that must incline the mind towards the matter of fact in question (see Austrac [2003] ATPR 41-960 at [37]; John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 at [13]–[14], [17], [73]; Dartberg 164 FCR 450 at [44]).

44    Given that Mr Chan has failed to provide evidence to the Court in support of his claims, such claims do not rise above mere assertions. Accordingly the Court is not satisfied that Mr Chan has, or may have, any arguable claim for relief against Mr Harris. For the above reasons, the Court is satisfied that Mr Chan’s application under O 15A r 6 cannot succeed.

MR CHAN’S NOTICES OF MOTION

45    The Court will now outline the details of the various notices of motion filed by Mr Chan currently before the Court.

Motion filed 9 June 2010

46    On 9 June 2010 Mr Chan filed a motion that he be granted leave under O 27A r 2(2) of the Rules to ‘issue subpoena’. The Court considered that the issue of a subpoena on an application for preliminary discovery was not appropriate. The general leave sought, without identification, could have been used merely as an alternative for discovery in respect of proceedings which had not yet commenced.

47    The motion also sought that leave be granted under O 16 r 1(1) of the Rules to file and serve interrogatories. No person against whom interrogatories were to be submitted was identified. Bearing in mind that the current proceedings remain as an application for preliminary discovery, such application was premature and refused.

48    Thirdly, Mr Chan sought an injunction against Mr Harris as follows:

That an injunction be granted to order that Mr. Alan Harris (i.e. the Respondent) not to publish any written material to any person (other than to a practising lawyer for the sole or dominant purpose of seeking legal advice in relation to the matter of NSD 538 of 2010), or do anything, that my adversely affect the Applicant’s right to have a fair hearing in this case NSD 538 of 2010. Further, an order that this injunction shall remain effective until conclusion of this case NSD 538 of 2010 and related appeals (if any).

49    The fourth claim of Mr Chan’s initial Notice of Motion sought the following declaration:

A declaration that it is contempt of court for Mr. Alan Harris to attempt to influence or interfere with the Applicant’s conduct of this case NSD 538 of 2010 by unduly contacting the Applicant and demanding the Applicant to meet with Mr. Harris on 11 June 2010.

50    The only apparent basis for such claim is the assertion made by Mr Chan that Mr Harris had prepared a report described as a Participation Report which allegedly contained fraudulent or defamatory allegations which are part of a conspiracy to injure Mr Chan.

51    Mr Chan did not provide the Court with any information supporting such application for injunction and declaration. At the hearing, Mr Chan refused to take the Court to any evidence in support of such motion. On the Court’s own examination of the numerous affidavits filed by Mr Chan it is unable to glean any evidence which could support an injunction or declaration as claimed. For these reasons the motion is dismissed.

Motion filed 10 June 2010

52    In his second Notice of Motion filed 10 June 2010, Mr Chan sought an order that he be allowed to inspect and photocopy all the documents including ‘correspondences, pertaining to the Court files of this case NSD 538 of 2010’. An affidavit affirmed by Mr Chan was filed on 10 June 2010 in which Mr Chan claimed that he had been denied access to the correspondence folder of the court file by Registry staff on the previous day. No basis has been advanced by Mr Chan as to the justification for allowing him to inspect the correspondence folder and such application is declined.

53    The second claim of Mr Chan’s second Notice of Motion sought an injunction restraining Corrs from acting for Mr Harris in these proceedings. Although Mr Chan did not adduce any evidence in support of such claim for relief, the Court notes a submission provided to the Court by Mr Chan on 11 June 2010 in which he stated that he had applied to Corrs previously for pro bono legal assistance with regard to other issues and feared that confidential materials would ‘unduly interfere with or substantially prejudice the applicant in the conduct of his case NSD 538 of 2010’. Mr Chan also claimed that the information would have a ‘detrimental effect on the applicant if Corrs Chambers Westgarth should distribute that information to Mr Alan Harris whether for the purposes of this proceeding or outside the scope of this proceeding’.

54    The affidavit of Anna Ross sworn on 29 October 2010 deposes that she is a solicitor in the employ of Corrs; that she has conducted a search and can find no record that Corrs have ever had any dealings with Mr Chan as a prospective client. Further, Ms Ross’ affidavit details Corrs’ practice of returning any original documents to potential clients after a decision has been made not to act for them.

55    Mr Chan did not seek to assist the Court in its request for evidence in support of his motion for the injunction against Corrs.

56    The third claim of the Notice of Motion filed on 10 June 2010 sought an order injuncting Corrs from obtaining access to any court file relating to these proceedings before the final determination of second claim of such motion. No evidence has been adduced in support of such claim. Given that there is no evidence before the Court which could support the orders requested, the Court dismisses the Notice of Motion filed on 10 June 2010.

Motion filed 17 June 2010

57    In Mr Chan’s third motion before the Court, Mr Chan sought an order that I should disqualify myself from hearing these proceedings. This issue has already been determined.

58    The second claim of such motion seeks an order restraining Corrs from passing any information from the firm to any person other than Mr Harris.

59    No evidence has been adduced in support of this application and accordingly it is dismissed.

Motion filed 11 August 2010

60    Claim 1 of Mr Chan’s fourth motion filed 11 August 2010 sought a variation of the existing orders for preparation for hearing. It is not necessary to deal with this issue further.

61    Claim 2 of such motion sought an order that transcripts in the proceedings in NSD 426 of 2009 heard on 12 June 2009 be provided to Mr Chan. The Court has already dealt with this claim and granted Mr Chan leave to inspect the court file so as to review the transcript and also to make notes of such transcript.

62    Claim 3 of such motion sought an order that the transcript in these proceedings be made available to Mr Chan. A similar order to the above has already been made in Mr Chan’s favour.

63    The Court notes in regard to the orders sought in claims 2 and 3 that the Court has declined to authorise a copy of the transcript for Mr Chan’s personal use, it being the Court’s policy that it will not order and pay for copies of transcripts for litigants, nor can it allow transcripts to be copied and distributed.

64    Claims 4, 5 and 6 of Mr Chan’s Notice of Motion filed 11 August 2010 raise serious allegations. Those paragraphs seek the following declarations:

4.    A declaration that the solicitor Mr. Andrew Korbel has breached the Solicitors Rules A22, A51, A56 and A57 made under the New South Wales Legal Profession Act 2004.

5.    A declaration that the solicitor Mr. [sic] Anna Ross has breached the Solicitors Rules A21, A22, A51, A52 and A57 made under the New South Wales Legal Profession Act 2004.

6.    A declaration that the solicitor Mr. [sic] Isabelle Paton has breached the Solicitors Rules A21 and A57 made under the New South Wales Legal Profession Act 2004.

65    The sections of the Solicitors’ Rules (made under the Legal Profession Act 2004 (NSW)) referred to in the motion relate to frankness in court and duties to opponents. Significantly there is no evidence which has been adduced by Mr Chan to support any such claims, although Mr Chan has had numerous opportunities to provide affidavit evidence in support thereof.

66    The Court accepts the submissions of Corrs that in the absence of any evidence such allegations should never have been made. The allegations suggest serious misconduct by three legal practitioners. In Bahonko v Nurses Board of Victoria [2008] FCAFC 29 Gyles, Stone and Buchanan JJ stated at [10]:

The processes of the Court and the Court itself are brought into disrespect if unreasonable relaxation of ordinary standards is extended to litigants in person simply for the reason that they are without legal assistance. There is no basis to think that the rights of any litigant in person are infringed or diminished by the steady insistence that proceedings in this Court are not be used as a means of sullying the reputation of other parties to the proceedings or third parties who are not directly involved in the proceedings at all.

67    To the same effect Mansfield J in Kowalski v Chief Executive Officer of Medicare Australia (2010) 185 FCR 42 said at [34]:

First, as has been remarked in other judgments in which Mr Kowalski has been a party, he is prone to make scandalous offensive and unsubstantiated allegations about public figures, about judges or administrative decision makers, and about the solicitors and counsel appearing in those matters. Even allowing for him being a litigant in person, those allegations are entirely inappropriate. He seems to be unable to accept that others might in good faith take a different view about certain things. Whether or not a different view is erroneous, there is no basis for asserting that the person taking that view is attempting to pervert the course of justice, or is lying, or is acting unprofessionally. Those sorts of assertions, or like offensive epithets, should not be tolerated.

68    There is no foundation for any of Mr Chan’s claims in relation to the declarations he seeks against Mr Harris’ solicitors. The Court concludes that the making of such allegations in the absence of any evidence is scandalous and is tantamount to an abuse of the Court’s process.

69    The Court accordingly dismisses the Notice of Motion filed on 11 August 2010.

Motion filed 14 September 2010

70    Mr Chan’s fifth Notice of Motion filed 14 September 2010 was disposed of by the Court’s orders of 12 October 2010. Accordingly such motion is not relevant to the current issues before the Court.

Motion filed 6 October 2010

71    Mr Chan’s sixth Notice of Motion filed 6 October 2010 sought a complete copy of the policy of the Court relating to the provision and the photocopying of transcripts to the public. The Registrar duly provided Mr Chan with a copy of the protocol by letter sent on 7 October 2010. At the hearing on 2 November 2010 Mr Chan made the submission that such provision made by the Registrar was insufficient. The Court is of the view that the material supplied to Mr Chan, namely a copy of ‘Protocol for Dealing with Issues of Transcript for Impecunious Litigants’ sufficiently answers the sole prayer of the Notice of Motion filed 6 October 2010. In so far as the motion is further pressed, the Court dismisses such motion.

FAILURE TO PROSECUTE

72    As a separate ground for dismissal of the application, Mr Harris submits that the proceedings should be dismissed for want of prosecution pursuant to O 35A r 3(1)(a) of the Rules because of his default under O 35A r 2(1)(f) of the Rules. A Notice of Motion to this effect was filed on 12 August 2010. Order 35A rule 3(1) relevantly provides:

(1)     If an applicant is in default, the Court may order that:

    (a)     the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or

    (b)     …

73    Mr Harris relies upon the following chronology of the proceedings.

Directions 16 June 2010

74    The first return date of the proceedings was 16 June 2010. On that day Mr Chan foreshadowed a motion seeking that the Court, constituted by myself, disqualify itself from the hearing. The Court made orders on that date requiring Mr Chan to file any further application and affidavit by 22 June 2010 and adjourned the hearing until 23 June 2010.

Directions 23 June 2010

75    On 23 June 2010 Mr Chan failed to appear. However at 3:43 pm on the preceding day Mr Chan had forwarded to the Court a facsimile requesting an adjournment. Attached was a heavily redacted document which purported to be a medical certificate dated 22 June 2010. It purported to certify that Mr Chan was unfit to attend his usual place of work from 22 to 23 June 2010. All details concerning the identity of the medical practitioner and the name and address of the medical practice had been redacted. Also attached was a letter, apparently from Canterbury Hospital which referred to an attendance by Mr Chan on 18 June at such hospital.

76    Based upon such material, the Court adjourned the proceedings until 28 June 2010, making the following orders:

1.    All proceedings be adjourned to 10.15 am on Monday, 28 June 2010.

2.    The Notice of Motion seeking an order that I not hear the proceedings and seeking an injunction against Corrs Chambers Westgarth will be heard on that day, unless medical evidence is produced to the court from an identified medical practitioner which states the nature of the injuries which prevents Mr Chan’s attendance at court, and certifying that Mr Chan, by virtue of his injuries, is unable to prosecute his claim on that day.

3.    In the absence of such medical evidence, and in the absence of any appearance, the Court will take whatever steps as are necessary to bring these matters to finality.

4.    Costs be reserved.

Directions 28 June 2010

77    On 28 June 2010 Mr Chan did not appear. At 8:13 am on that day the Court received a communication from Mr Chan entitled ‘Submission (No.2) By the Applicant’ in which he stated that he had been informed of the 28 June 2010 directions hearing with insufficient time to arrange a medical certificate and also that he was still unable to attend for medical reasons.

78    On 28 June 2010 the Court adjourned the proceedings until 5 July 2010 but ordered that Mr Chan submit a detailed medical certificate by 2 July 2010 if he claimed medical inability to proceed on 5 July 2010.

Directions 5 July 2010

79    On 5 July 2010 Mr Chan failed to appear. As Mr Harris’ solicitor indicated to the Court that she did not believe that anything would be served by striking out the application, the Court ordered that the Application and all notices of motion which by that time had been filed, be listed for hearing on 17 August 2010. Significantly the Court included the following orders:

2.    By 4:00 pm on 10 August 2010 the applicant file and serve an affidavit explaining his non-attendance at Court today, attaching any medical certificates verifying any illness preventing him from attending at Court today.

3.    The applicant is to file and serve by 4:00 pm on 10 August 2010 a statement setting out the precise issues which he wishes to raise in these proceedings against Mr Harris and any other associated party.

4.    In the absence of filing the affidavit and particulars by Tuesday, 10 August 2010 the respondent be at liberty to file a notice of motion to have the proceedings dismissed for want of prosecution.

80    At 7:54 pm on 10 August 2010 Corrs received by facsimile a copy of an affidavit from Mr Chan filed 10 August 2010 alleging incompetence on the part of the Court and providing details of another matter (NSD 426 of 2009) in which Mr Chan had made a similar application to the Court.

81    At 11:27 pm on 10 August 2010 Corrs received a second affidavit of Mr Chan filed 17 June 2010 by facsimile which addressed the expenses being incurred by Mr Harris. No medical certificates were provided.

82    At 1:46 am on 12 August 2010 Corrs received by facsimile the Notice of Motion which had been filed on 11 August 2010 which had raised allegations against solicitors engaged by Mr Harris. An affidavit filed on the same day relating to corruption in the Tasmanian Pulp Industry was also attached.

Interlocutory Hearing 17 August 2010

83    As provided by the orders of 5 July 2010, on 17 August 2010 the proceedings came before the Court for hearing. Mr Chan appeared. The Court then heard submissions by Mr Chan upon his motion that the Court, constituted by myself, disqualify itself from the hearing of the proceedings. Upon the completion of oral submissions the Court made orders reserving judgment on the disqualification issue until 25 August 2010, requiring Mr Chan to provide any further submissions in writing by no later than 19 August 2010 and adjourning the Application and outstanding motions until 25 August 2010.

Directions 24 August 2010

84    The proceedings were in fact re-listed by the Court on 24 August 2010 in order to provide Mr Chan access to the transcript in NSD 426 of 2009 which had become available and which Mr Chan claimed was vital to his submissions. On 24 August 2010 the Court granted Mr Chan liberty to inspect the transcript in proceedings NSD 426 of 2009 and to make notes of the transcript. The Court also ordered Mr Chan to file and serve any further affidavit evidence on which he sought to rely by 14 September 2010. Following such orders, the judgment in respect of the disqualification application remained reserved as and from 21 September 2010.

Directions 30 September 2010

85    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

86    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.

87    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.

88    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.

89    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’).

90    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.

91    By letter dated 25 October 2010, Mr Chan was informed by a Deputy District Registrar of this Court that as the judgment delivered by the Court on 12 October 2010 was interlocutory and no leave had been granted to file a Notice of Appeal, the Notice of Appeal filed on 18 October 2010 was defective.

92    By letter dated 27 October 2010 Corrs provided a further copy of the above letter to Mr Chan. Corrs also requested in their letter information in respect of the affidavits and submissions Mr Chan proposed to rely upon at the hearing on 2 November 2010. There was no response to such letter.

Final Hearing 2 November 2010

93    On 2 November 2010 the proceedings came on for hearing. Mr Chan appeared and sought a stay of the proceedings on the basis of the filing of his Notice of Appeal in the Appeal Proceedings. Mr Chan directed the Court to the filing of a Notice of Motion in the Appeal Proceedings that sought a stay of the Application. The Court rejected such application for a stay and indicated that it would continue with the hearing of the Application and motions as indicated by its previous orders.

94    The Court firstly sought to deal the Mr Chan’s motion of 9 June 2010. In answer to the Court’s request that he indicate the evidence in support of claims 3 and 4 of such motion Mr Chan indicated that he had ‘not even started’ to present his case. When questioned whether he had filed any evidence supporting his Application and notices of motion, Mr Chan said:

I have filed some, but I have not filed my intended evidence and presentation of the case. That is what I am saying.

95    The Court then adjourned briefly to allow Mr Chan to examine his records, so as to locate the evidence on which he relied.

96    Upon resumption Mr Chan made an oral application for leave to appeal the Court’s decision delivered on 12 October 2010 upon the issue of disqualification.

97    No motion had been filed in the proceedings seeking such leave, nor did any affidavit exist setting out the grounds for leave, and no notice had been provided to Corrs. Accordingly the Court rejected the oral application. It should be observed that even if leave to appeal had been granted, the appeal would not have operated automatically as a stay of proceedings: see O 52 r 17 of the Rules.

98    Mr Chan then claimed that he was unable to prosecute the balance of his application and motions on that day as he had not been able to bring his materials to court because of an injury. Mr Chan then produced a medical certificate dated 19 August 2010 stating that he should avoid carrying heavy weights ‘next month as has resolving fractured ribs’. The Court did not regard the medical evidence as establishing that Mr Chan was unable to continue with the hearing.

99    Mr Chan was then asked again to provide the evidence which he relied upon in support of his motions. He declined to do so, and rejected an offer by Mr Harris’ counsel to provide him with a copy of all of the affidavits he had sworn in the proceedings. Mr Chan stated that he was ‘totally unprepared’ to direct the Court to the evidence on which he relied and also indicated that some of his evidence had not yet been filed. Mr Chan did however press his Notice of Motion filed 6 October 2010 relating to access to the Court’s policy is respect of the provision of transcripts to litigants. Mr Chan declined to make any submissions in respect of his other motions or the Application. Accordingly the Court then proceeded to hear Mr Harris’ motion to strike out the application for want of prosecution. At this stage Mr Chan brought the Court’s attention to the authority of R v The Australian Broadcasting Tribunal and Others; Ex parte Hardiman and Others (1980) 144 CLR 13 before withdrawing from the Court. Mr Chan was not present for the hearing of Mr Harris’ motion.

Finding

100    Mr Chan’s application for preliminary discovery may have been expeditiously completed had he been prepared to file the mandatory affidavit under O 15A r 9(3). He has steadfastly declined to do so.

101    Mr Chan has also failed to provide a document stating the precise issues which he wishes to raise in the proceedings as ordered by the Court on 5 July 2010. He has not filed any medical evidence explaining his absence from the Court on 10 August 2010 as ordered on 5 July 2010. Further, Mr Chan failed to provide any further affidavits in support of his claims although ordered to do so on 24 August 2010 and again on 12 October 2010. As detailed above, Mr Chan refused to take the Court to any evidence supporting his claims at the hearing, except for the material relating to his final Notice of Motion.

102    The Court is satisfied that Mr Chan’s history demonstrates an inability or unwillingness to co-operate with the Court and with the respondent, that being conduct of the kind referred to by Wilcox and Gummow JJ in Lenijamar Pty Ltd and Others v AGC (Advances) Limited (1990) 27 FCR 388 at 396. Although the Court in those proceedings were considering an application for dismissal of proceedings for want of prosecution under O 10 r 7 of the Rules, there is no reason why the same considerations should not apply under O 35A r 2(1)(f) of the Rules.

103    For the above reasons, the Court dismisses the Application and all notices of motion filed by Mr Chan pursuant to O 35A r 3(1)(a) of the Rules, with costs.

Associate:

Dated:    15 December 2010