FEDERAL COURT OF AUSTRALIA
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The applicant file and serve an affidavit attaching a draft notice of appeal incorporating the existing grounds set out in the notice of appeal filed on 18 October 2010 and any further grounds he may wish to raise in relation to the judgment of this Court in Chan v Harris (No 2) [2010] FCA 1393.
2. The hearing of the remaining prayers in the notices of motion filed on 1 November 2010 (as amended on 12 November 2010) and on 24 November 2010 be stood over to a date to be fixed.
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.
NEW SOUTH WALES DISTRICT REGISTRY | |
GENERAL DIVISION | NSD 1372 of 2010 |
BETWEEN: | YAU HANG CHAN Applicant
|
AND: | ALAN HARRIS Respondent
|
JUDGE: | KATZMANN J |
DATE: | 17 DECEMBER 2010 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 In proceeding NSD 538 of 2010 (“the proceeding”) the applicant, Mr Chan, sought preliminary discovery of numerous documents from the respondent, Mr Harris, an employee of Catholic Care Sydney, which operates Local Employment and Training Solutions (LETS) programs. In substance, Mr Chan believes that a report LETS prepared and gave to Centrelink contains fraudulent and defamatory allegations about him.
2 Relevantly identical proceedings for preliminary discovery were commenced by Mr Chan on 14 May 2009 (NSD 426 of 2009) in which the Court made orders in Mr Chan’s favour on 3 June 2009. Apparently, the only substantial difference is the identity of the respondents. Both proceedings were heard by Cowdroy J.
3 On 17 June 2010 Mr Chan filed a notice of motion applying for his Honour to disqualify himself from hearing the application in the proceeding. Throughout the proceeding Mr Chan was unrepresented, as he was before me. After hearing argument for a day on 17 August 2010 and again on 30 September 2010, his Honour refused to accede to the application, delivering judgment on 12 October 2010. He also made some other orders, including refusing leave to issue certain subpoenas.
4 Within seven days of the pronouncement of thar judgment Mr Chan filed a notice of appeal. His Honour’s judgment was interlocutory: it did not finally determine the rights of the parties in the principal cause. See Re Luck [2003] HCA 70, 203 ALR 1 at [4], so leave is required: Federal Court of Australia Act 1976 (Cth) (“the Act”), s 24(1A). But Mr Chan did not obtain leave. The appeal is therefore incompetent. On 25 October 2010 a Deputy District Registrar of the Court wrote to him informing him of the problem and advising him to file a notice of motion and affidavit in support and drawing his attention to the relevant sections of the Act and the Federal Court Rules.
5 Mr Chan responded by filing a notice of motion on 1 November 2010 and an affidavit which merely annexed a copy of the Deputy District Registrar’s letter. Rather than applying for leave, as advised, Mr Chan’s notice of motion sought the following orders:
(1) A declaration that s 24(1A) of the Federal Court of Australia Act 1976 is unconstitutional.
(2) An order staying the proceedings of the Federal Court case NSD 538 of 2010 until final determination of this Federal Court case NSD 1372 of 2010.
(3) Leave be granted for the Applicant to amend his Notice of Appeal filed on 18 October 2010.
6 Cowdroy J refused prayer 2 of the notice of motion on 2 November 2010. The motion then came before me for directions on 12 November 2010 at which time Mr Chan was given leave to amend his notice of motion to seek leave to appeal and an extension of time (if necessary). At that time he also requested leave to issue subpoenas, a request I refused, and I fixed the matter for hearing on 16 December 2010. The respondent has filed an appearance submitting save as to costs.
7 On 24 November 2010 Mr Chan filed a further notice of motion seeking the following orders:
(1) 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.”
(2) Reasons be provided in writing to the Applicant that have grounded the order no. 2 made by Justice Katzmann on 12 November 2010.
(3) An injunction/order staying Ms. Linda Allen’s decision of 5 November 2010 until the final determination of this Federal Court case no. NSD 1372 of 2010. (If necessary, also an order joining the Commonwealth of Australia as a party to this Federal Court case no. NSD 1372 of 2010.)
(4) An injunction/order staying the proceedings of the Consumer, Trader & Tenancy Tribunal case no. SH 10/49951 until the final determination of this Federal Court case no. NSD 1372 of 2010. (If necessary, also an order joining the State of New South Wales/New South Wales Land and Housing Corporation as a party to this Federal Court case no. NSD 1372 of 2010.)
(5) Any other appropriate order.
8 He also filed a number of affidavits in support of the two notices of motion.
9 On 15 December 2010, the day before I was due to hear the two motions, Cowdroy J delivered final judgment on the proceeding dismissing the application and all remaining notices of motion with costs: Chan v Harris (No 2) [2010] FCA 1393. At the time I believed that this would mean that to proceed with the substance of the two notices of motion listed before me would be futile and, when the matter came before me the next day for hearing, I conveyed this belief to Mr Chan, as a result of which he elected not to move on any of the remaining prayers in the two notices of motion save for prayer 2 of the notice of motion filed on 24 November 2010 and prayer 3 of the notice of motion filed on 1 November 2010.
10 However, on reflection it is clear that the judgment of 15 December 2010 is also interlocutory as the application and notices of motion were dismissed for want of prosecution pursuant to O 35A r 3(1)(a) of the Federal Court Rules: National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Queensland) (Formerly Hillier, Parker (Queensland) Pty Ltd [2001] FCA 237, 183 ALR 700 at [8]-[9]. This means that if Mr Chan wishes to appeal that decision he will also need the leave of the Court. The Rules require a notice of motion to be filed within seven days of the judgment or within such further time as the Court or a judge may allow. See O 52 r 10.
Leave to amend the notice of appeal
11 Prayer 3 of the notice of motion of 1 November 2010 sought an order for leave to allow Mr Chan to amend his notice of appeal. The nature of the proposed amendment was never articulated. At the hearing before me on 16 December he requested that he be given leave to amend it to add grounds arising out of the judgment delivered on 15 December, although those grounds were never articulated either. I refuse leave for two reasons. First, the notice of appeal was incompetent. It should not have been filed. It should therefore be treated only as a draft notice of appeal. Secondly, as I have already said, leave is required to appeal from the 15 December judgment.
Refusal of leave to issue further subpoenas
12 At the directions hearing on 12 November 2010 I refused leave to Mr Chan to issue subpoenas. I did so because the motion with which I was concerned sought a declaration on a question of law and leave to amend the notice of appeal. In the circumstances there could have been no legitimate forensic purpose for the issue of subpoenas.
Stay
13 During the course of the hearing on 16 December Mr Chan made an oral application for a stay of Cowdroy J’s 15 December judgment. I refused to entertain the application. I informed Mr Chan that he could file a notice of motion seeking such an order. See O 52 r 17(3) of the Federal Court Rules. Obviously it will have to be served on Mr Harris. Mr Chan asked me to grant him liberty to file that notice of motion. It is unnecessary for Mr Chan to obtain the liberty of the Court to do so.
The remaining prayers in the notices of motion
14 In all the circumstances, it seems to me that the most appropriate course is to:
(a) order that the applicant file and serve an affidavit attaching a draft notice of appeal incorporating the existing grounds set out in the notice of appeal filed on 18 October 2010 and any further grounds he may wish to raise in relation to the judgment of this Court in Chan v Harris (No 2) [2010] FCA 1393; and
(b) the hearing of the remaining prayers in the notices of motion filed on 1 November 2010 (as amended on 12 November 2010) and on 24 November 2010 be stood over to a date to be fixed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. |
Associate:
