FEDERAL COURT OF AUSTRALIA

Chan v State of New South Wales [2011] FCA 287

THE COURT DIRECTS:

1.    The Registrar to draw up a minute of order and place it on the Court file recording that these proceedings were dismissed on 30 August 2010 by reason of the applicant’s failure to file a Statement of Claim.

2.    The Registrar to record on the same minute that the purported Statement of Claim document filed on 30 August 2010 is not a Statement of Claim.

3.    The Taxing Officer that the costs of 25 March 2011 are costs properly incurred in the course of the proceedings.

THE COURT ORDERS THAT:

4.    The applicant pay the respondent’s costs.

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

1    On 8 February 2010 the applicant, Mr Chan, caused to be issued out of the registry of the High Court of Australia a writ of summons addressed to the State of New South Wales. The writ of summons was endorsed with a statement as to the nature of Mr Chan’s claim which sought, compendiously, a declaration that Schedule 1 of the Civil Procedure Regulation 2005 (NSW), made pursuant to section 18(1) of the Civil Procedure Act 2005 (NSW), was invalid.

2    Section 18(1) authorises the Governor to make regulations with respect to the setting of fees payable to a court, including the Supreme Court of New South Wales. In his writ of summons, Mr Chan contended that the setting of fees by the Governor under the regulations constituted a fetter or impermissible burden upon his right to litigate.

3    On 17 February 2010 the defendant State filed a notice of appearance in the proceedings. On 10 March 2010 the time for the delivery of a proper statement of claim under rule 27.03.3(b) of the High Court Rules arrived. No such document was filed. On 9 April 2010 the State filed a summons seeking to dismiss the proceedings for want of prosecution. On 10 May 2010 Heydon J remitted the proceedings then pending in the High Court to this Court.

4    That matter, on remitter, came before me on 17 June 2010 at which time I directed Mr Chan to file a statement of claim by 4 pm on 15 July 2010. That direction was not complied with.

5    The matter came before me again on 30 July 2010 at which time I ordered Mr Chan to file and serve a statement of claim within seven days. At that time the State foreshadowed that it might bring a notice of motion seeking to dismiss the proceedings for want of prosecution.

6    On 2 August 2010 Mr Chan filed a notice of motion seeking to stay certain proceedings then pending in the Local Court of New South Wales, an order that the Crown Solicitor cease to act for the State and a variation of the order I had made on 30 July 2010 requiring him to file a statement of claim.

7    On 6 August 2010 that notice of motion was heard and I declined to grant any of the relief sought in it. In addition, and this is pertinent for present purposes, I ordered that the present proceeding be stayed until Mr Chan filed a statement of claim and that if he did not file a statement of claim by 30 August 2010 his proceeding stand dismissed for want of prosecution. The order I made was, therefore, self-executing.

8    On 30 August 2010 Mr Chan filed a document in the registry of this Court which purported to be a statement of claim. The text of that document is as follows:

1.    On 8 February 2010, the Applicant filed a Writ of Summons in the High Court case S22 of 2010. That was later transferred to this Federal Court.

2.    At all material times the Applicant is a recipient of the Newstart Allowance of Centrelink under the Social Security Act 1991. Therefore the Applicant has only partial and inadequate control of his own timetables.

3.    There have been a lot of obstacles and disruptions since 8 February 2010 to the Applicant’s attempt to complete and file a Statement of Claim in time in the High Court or in this case.

4.    Some of said obstacles and disruptions are probably the result of a conspiracy to prevent or prejudice the Applicant from completing and filing a Statement of Claim in time.

5.    Other obstacles and disruptions are medical in nature and out of the control of the Applicant.

6.    As a result, most of the delays in the filing of this Statement of Claim are not the faults of the Applicant.

7.    The Applicant needs further time to complete and file said Statement of Claim.

9    Nothing further has since been filed in these proceedings. On 2 February 2011, my associate wrote to the Crown Solicitors and to an address which, as events transpired, was not Mr Chan’s address, notifying the parties that the matter would be listed for further directions on Friday 4 March 2011 at 9.30am. Since the letter was not sent to Mr Chan’s address I accept that it did not come to his attention.

10    When the matter came before me on 4 March 2011, that mishap became apparent and the matter was stood over for further directions to today. Subsequently on 4 March 2011, that is, on the same day, a further letter was written by an officer of the registry to Mr Chan, this time at the correct address and it is in response to that letter which he has appeared this morning.

11    When the matter was called on this morning, Mr Kirk of counsel, who appeared for the State, submitted that the Court should clarify the status of the proceedings by indicating they had been dismissed because the self-executing order had taken effect as no statement of claim had, in substance, been filed.

12    In response, Mr Chan then sought to file in Court a notice of motion seeking to join the Commonwealth as a party to the proceedings and contending that he had been prevented from filing such a notice of motion by the registry apparently because of the effect of my order staying the proceeding.

13    I do not think it is necessary to deal with that proposition for two reasons. First, the challenge to the law which is articulated in the only substantive document which Mr Chan has filed in the long history of this proceeding is a challenge to a State act and the Commonwealth is neither a proper nor necessary party to that. Secondly, in any event, even if it were appropriate to join the Commonwealth as a party it was incumbent upon Mr Chan, in the position he finds himself today, at least, to deign to articulate what the proposed pleading is. There is no reason why a draft pleading with the Commonwealth as a party could not have been articulated this morning and put before the Court for its consideration.

14    Having perused Mr Chan’s purported statement of claim, I accept the State’s submission that it is not a statement of claim at all. In that circumstance I accept that the self-executing order that I made on 6 August 2010 has, in fact, taken affect. In making those remarks I am conscious that Mr Chan is appearing for himself but I am bound to say that I do not regard any step which has been taken in these proceedings as having the slightest merit and I do not regard him as taking these proceedings seriously. They are, in my opinion, vexatious.

15    In those circumstances I do not think it would be appropriate, even if I were otherwise minded to do so, to afford Mr Chan a further chance to put his house in order, there having been no real attempt to put it in order today. In that circumstance I accept the submission that the proceedings have been dismissed. The only step I will take is to direct the Registrar to draw up a minute of order and place it upon the court file recording that these proceedings were dismissed on 30 August 2010 by reason of Mr Chan’s failure to file a statement of claim and to record, on the same minute, that the document which purports to be a statement of claim filed on that date is not a statement of claim.

16    There remains then the question of costs. There may be an interesting question as to whether an inferior court would be entitled to make a costs order where proceedings have been dismissed at an earlier time by a self-executing order but I do not think that that question arises in a superior court. The question arose in the present proceeding as to whether it had been dismissed. This Court has jurisdiction to deal with that question and to declare what the position is. That is what I have done this morning. Necessarily ancillary to that is the power of the Court to make a costs order and this, it seems to me, is an appropriate thing to do. I therefore order that Mr Chan pay the State’s costs and I note that under the Federal Court Rules, the proceedings having been dismissed, they are concluded and therefore that taxation may proceed without further ado. Lest the issue arise further to trouble the parties on taxation, I will direct the taxing officer that the costs of today are properly incurred in the course of the proceedings.

Associate:

Dated:    25 March 2011