FEDERAL COURT OF AUSTRALIA

Chan v Harris (No 3) [2011] FCA 341

THE COURT ORDERS THAT:

1.    The notice of motion filed on 1 November 2010 be dismissed

2.    The notice of motion filed on 24 November 2010 also be dismissed.

3.    The appeal is dismissed as incompetent.

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    The applicant, Mr Chan, is aggrieved by decisions of this Court arising out of the hearing and disposition of an application he made for preliminary discovery under O 15A rr 3 and 6 of the Federal Court Rules (“the application”). Aspects of his grievance are the subject of two earlier judgments and this judgment should be read with them. See Chan v Harris [2010] FCA 1428 and Chan v Harris (No 2) [2011] FCA 143. It is, however, convenient to refer to some of the same matters by way of background.

background

2    On 17 June 2010 Mr Chan filed a notice of motion seeking an order that the primary judge “not sit in and determine” the proceeding any further (“the recusal application”) and, in effect, a permanent injunction restraining the solicitors for the respondent (“Mr Harris”) from passing any information and documents to anyone other than Mr Harris. After hearing argument for a day on 17 August 2010 and again on 30 September 2010, his Honour refused to accede to the recusal application, delivering judgment on 12 October 2010. His Honour also made some other orders, including refusing leave to issue subpoenas: Chan v Harris [2010] FCA 1099. The application for the injunction against the solicitors was dismissed in a later judgment delivered on 15 December 2010: Chan v Harris (No 2) [2010] FCA 1393.

3    Six days after the pronouncement of the 12 October judgment Mr Chan filed a notice of appeal. On its face the notice was incompetent because his Honour’s judgment was interlocutory, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) requires that leave to appeal be obtained, and Mr Chan did not obtain leave. Upon being informed that he required leave, he filed a notice of motion containing three prayers, the first of which sought a declaration that s 24(1A) was unconstitutional (“the first notice of motion”). At my invitation he amended the first prayer to also seek leave in the alternative.

4    On 24 November 2010, however, Mr Chan filed a second notice of motion (“the second notice of motion”). I dealt with all except the first of the prayers in that notice of motion in my previous judgments. The first was in the following terms (without alteration):

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”.

5    Order 1 of the orders I made on 12 November 2010 incorporated the application for leave I suggested Mr Chan make. It read:

The appellant is granted leave to amend his notice of motion, filed on 1 November 2010, so that the first order sought reads “A declaration that s 24(1A) of the Federal Court of Australia Act 1976 is unconstitutional or, in the alternative, leave to appeal from the judgment of Cowdroy J pronounced on 12 October 2010 in proceedings NSD 538/2010 and an extension of time (if necessary)”.

6    It would seem, however, that by his second notice of motion Mr Chan sought to withdraw his application for leave to appeal and to restore the terms of the first notice of motion.

7    The first prayer in the first notice of motion seeks a declaration that s 24(1A) is unconstitutional. The second seeks a stay of the judgment. The third seeks leave to amend the “notice of appeal.”

8    The remaining prayers in the two notices of motion were fixed for hearing on 10 March 2011. The date was fixed on 2 February 2011 to suit Mr Chan’s convenience. He was present in court on 9 February 2011 when the hearing date was confirmed. When the matter was called on for hearing, however, he applied for an adjournment. He had adopted the same course when the other matters the subject of his various notices of motion were listed for hearing on 9 February 2011.

9    In fact, on 10 March 2011 he made three unsuccessful sequential applications for an adjournment. That is to say, after I refused one, he made another, and when I refused that he made a third, each raising different grounds.

10    In support of the first application he relied on the same ground put in support of his unsuccessful adjournment application on 9 February (see Chan v Harris (No 2 [2011] FCA 143). In substance, he submitted that I was wrong to have refused the application then. He argued that the law I had applied was wrong and that he was the victim of a widespread conspiracy to interfere with his preparation of the case and the outcome of the proceedings. He claimed to have fresh evidence this time, but the fresh evidence was contained in previous affidavits.

11    The second application was based on the fact that he had applied to the Chief Justice for a direction that the proceeding be referred to a Full Court pursuant to s 20(1A) of the Act and it was, he contended, inappropriate, if not improper, that I hear the proceeding in those circumstances. He tendered evidence of an exchange of correspondence between him and the Deputy Registrar, responding on behalf of the Chief Justice. In two letters the Deputy Registrar explained that the Chief Justice was not empowered to make such a declaration because the issue did not arise in the Court’s original jurisdiction. Mr Chan argued that any application, whether or not it was made in connection with an appeal or a purported appeal, was within the original jurisdiction of the Court. However, the proceeding before me plainly arises in the Court’s appellate jurisdiction. It commenced with a purported notice of appeal. The motions relate to that purported notice. In any case, it is clear from the letters the Deputy Registrar wrote to Mr Chan that the Chief Justice has not referred and will not refer this matter to a Full Court. His application has therefore been disposed of. In the circumstances, it would have been quite inappropriate to adjourn the proceeding on that account.

12    The third application was made after I had clarified with Mr Chan that he had not given notice to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). Mr Chan then sought an adjournment in order to give that notice.

13    Section 78B imposes a duty on a court not to proceed in a pending cause that “involves a matter arising under the Constitution or involving its interpretation” “unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court”.

14    I refused the application because I was satisfied that in this case the obligation was not in fact triggered. I shall now explain why.

15    In Re Finlayson; Ex parte Finalyson (1997) 72 ALJR 73 at 74 Toohey J held that:

a cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the matter does involve a matter arising under the Constitution. [Footnoted omitted.]

16    In Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 at 296-298 French J (as his Honour then was) considered the authorities concerning the nature of the duty and the proper interpretation of s 78B. At 297 his Honour said:

Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous, or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation – Nikolic v MGIC Ltd [1999] FCA 849; cf. Australian Securities and Investments Commission v White (unreported, Federal Court, Drummond J, No QG 40 of 1998, 16 July 1998).

17    The Full Court of the Supreme Court of South Australia cited these remarks with approval in Danielsen v Oneseteel Manufacturing Pty Ltd (2009) 253 ALR 661.

18    Perram J expressed a similar view in Gargan v Kippin Investments Pty Ltd [2008] FCA 1718 at [40] where he said that s 78B “operates on constitutional matters” and a constitutional matter that is “completely devoid of merit” does not amount to a constitutional matter.

19    I informed Mr Chan that it was incumbent on him to satisfy me that his application for a declaration was not frivolous or vexatious or unarguable. He made no attempt to do this. The only matter he raised with me was that s 24(1A) did not conform to the intention of the founding fathers. He did not explain what that intention was, let alone why the section did not conform to it. He did not present any other arguments, although he intimated he had a battery of arguments in his armoury. In my opinion, for the reasons given below, the point is unarguable. It is doomed to fail. For this reason it is an abuse of process: Walton v Gardiner (1993) 177 CLR 378 at 393. Accordingly, I was satisfied that the application did not raise a matter that genuinely arises under the Constitution or involves its interpretation.

submissions

20    Mr Chan filed five sets of submissions in the proceeding before me. None of them canvassed the issues going to the heart of his case, that is, whether s 24(1A) was unconstitutional or whether, if it was, leave to appeal should be granted. On 10 March and although I had indicated to him that I would not sit beyond the day to hear his motions, he occupied the entire day with his adjournment applications. In the circumstances, however, and as the Court may in a case such as this dispense with an oral hearing (see O 52 r 2AB) I gave him another opportunity to present his arguments in writing, granting him leave to file further written submissions directed to those two issues, limiting their length to 10 pages (as required by O 52 r 2AC). He was given until 1 April. By 1 April he had not done so. On 4 April he faxed to the Registry a sixth and further submission but it did not address those issues.

21    Mr Harris filed a submitting appearance.

Declaration refused

22    Section 24(1A) of the Act provides:

An appeal shall not be brought from a judgment referred to in subsection (1) that is an interlocutory judgment unless the Court or a Judge gives leave to appeal.

23    The judgment of the primary judge was a judgment referred to in subsection (1) in that it was a judgment of a single judge of this Court exercising the Court’s original jurisdiction: see s 24(1)(a). There are exceptions to the requirement for leave but they are irrelevant, as they confined to interlocutory judgments affecting the liberty of an individual or proceedings relating to contempt of court. See s 24(1C).

24    As the High Court observed in Bienstein v Bienstein (2003) 195 ALR 225 at [25] and Re Luck (2003) 203 ALR 1 at [4] the usual test for determining whether a judgment or order is final rather than interlocutory is whether it finally determines the rights of the parties. There can be no doubt that a refusal to accede to a disqualification (recusal) application is interlocutory. So, too, are the other decisions under challenge in the purported notice of appeal.

25    The application for a declaration is without merit. Section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court and “such other federal courts as the Parliament creates”. This Court was created by the Parliament through the Act. Section 77 of the Constitution provides that with respect to any of the matters mentioned in ss 75 and 76, the Parliament may (amongst other things) make laws defining the jurisdiction of any federal court other than the High Court. Although ss 75 and 76 refer to original jurisdiction, the jurisdiction authorised by s 77 includes the appellate jurisdiction: Ah Yick v Lehmert (1905) 2 CLR 593; Cockle v Isaksen (1957) 99 CLR 155 at 163. The power to define the jurisdiction includes the power to place limits or restrictions on its exercise: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 530 per Kirby J. In s 24(1A) of the Act, Parliament has defined the jurisdiction of the Federal Court in appeals from interlocutory judgments or orders so as to limit or restrict its exercise to cases justifying a grant of leave. The purpose of imposing such a limit or restriction is to ensure that unsuitable appellate proceedings do not add to the demand on the court’s limited resources, burden other parties, and cause delays to other litigants. It acts as a “control device” or “filter” and promotes the availability, speed and efficiency of justice for those appeals that should proceed to a full hearing: Coulter v R (1988) 164 CLR 350 at 359; Chapmans Ltd v Yandell [1999] NSWCA 361 at [11].

26    In Davis v Insolvency and Trustee Service Australia [2010] FCAFC 141 (“Davis”) at [10] the Court rejected an argument that s 24(1D)(b) of the Act was “constitutionally invalid”. Although the case concerned a different subsection of s 24, the reasoning also applies here and it provides a complete answer to Mr Chan’s request for declaratory relief. Davis was an appeal from a decision summarily dismissing an application under s 31A of the Act. Section 24(1D)(b) provides that judgments by consent or granting or refusing summary judgment under s 31A of the Act are taken to be interlocutory judgments for the purposes of s 24(1A) and (1C). Mr Davis challenged the constitutionality of that provision. The Full Court said this of his argument:

Mr Davis contends that s 24(1D)(b) is constitutionally invalid because it is a usurpation of the judicial power; that the true position is that a judgment under s 31A is final in nature; and that the most recent holding by the Full Court of the Federal Court to the contrary – Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 – is plainly incorrect and should not be followed. We reject the first step in this argument. Mr Davis submitted “[i]t is not for [P]arliament to direct the courts of the land, at least [C]hapter III courts, by a deeming provision what is the legal effect of a judgment of the court whatever its true character, eg interlocutory or final” [sic]. But this proceeds only on a misconceived grasp of what s 24(1D)(b) does. It does not “direct” the Court in the exercise of its jurisdiction. Rather, together with s 24(1A), it specifies the circumstances in which an appeal may be brought only by leave. All appeals in this Court are statutory and the necessary consequence is that it is entirely within Parliament’s competence to specify the circumstances in which an appeal may exist and, if it does, the conditions attaching to its exercise. Mr Davis relied upon a number of decisions….for the proposition that the Parliament may not usurp judicial power. So much may be accepted. But s 24(1D)(b) does not tell this Court how it is to exercise a jurisdiction which exists but, in contradistinction, merely defines the circumstances in which the jurisdiction exists at all. It is only where jurisdiction exists that questions of usurpation begin to be relevant (“The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it”: Nicholas v The Queen 193 CLR 173 at 188 [23] per Brennan CJ). The challenge to the validity of s 24(1D)(b) fails.

[Emphasis added.]

27    It is a necessary consequence of this reasoning that the challenge to the validity of s 24(1A) must also fail. Accordingly, I refuse to make the declaration. It follows that if Mr Chan wishes to appeal he must first obtain the leave of the Court.

28    The second notice of motion effectively withdrew the application for leave. But during the course of the hearing on 10 March 2011 Mr Chan made it clear that he wished to seek leave if the Court were to refuse his declaration. Consequently, despite the terms of the first prayer in the second notice of motion, I will now consider whether leave should be granted.

the question of leave

Extension of time

29    Save in circumstances which are presently irrelevant, an application for leave may be made orally at the time of judgment to the judge pronouncing it or by motion filed within seven days of the date of judgment under O 52 r 10 of the Federal Court Rules. By the time the Deputy District Registrar wrote to Mr Chan, the time to file the motion had expired. The Court, however, has a discretion to grant an extension of time. Amongst other things, before an extension will be granted a satisfactory explanation for the delay must be provided: Brock v Minister for Home Affairs (2008) 170 FCR 434 at [55].

30    Mr Chan did not offer any explanation but, as he was unrepresented, it is reasonable to assume in his favour that, within the seven days, he was unaware of the requirement for leave. If there were merit in Mr Chan’s proposed appeal, I would not be inclined to refuse an extension merely because he failed to provide an explanation.

Criteria for leave

31    Leave to appeal against an interlocutory order will generally be granted only where the applicant is able to show that the decision is attended by sufficient doubt to warrant it being reconsidered and the order causes the applicant substantial injustice (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399) or substantial prejudice: Cement Australia Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261 at [20].

Grounds of appeal

32    The purported notice of appeal pleads the following grounds (without alteration):

(1)    On 12 October 2010, Justice Cowdroy made five orders in his Honour’s judgment handed down to the Applicant that day (“Judgment”). The Applicant hereby appeals against the whole of that Judgment and all those orders.

(2)    Justice Cowdroy has made many material errors of fact in the said Judgment. As a result the said Judgment should not be allowed to stand.

(3)    Some errors of fact are indisputably obvious and on record. One of these is: “By 9 June 2009 certain records had been produced” (p. 2 of the said Judgment) when in fact none was produced.

(4)    Justice Cowdroy has made many errors of law in the said Judgment. As a result the said Judgment cannot stand.

(5)    One of the errors of law made by Justice Cowdroy is that his Honour has failed to provide a reason for order no. 4 in the said Judgment when his Honour has a duty to provide such a reason in the said Judgment.

33    The orders made in the judgment of 12 October 2010 were:

(1)    The application for disqualification contained in the Applicant’s Notice of Motion filed 17 June 2010 be refused.

(2)    The application for leave to issue subpoenas against Michael Allen, Office of the Director General, Housing NSW; Mr Andrew Scipione, Office of the Commissioner, NSW Police Force; and Mr John Lawler, Head Office of the Australian Crime Commission be refused.

(3)    The application contained in the Applicant’s Notice of Motion filed 14 September 2010 to vary Order 3 and Order 4 made on 24 August 2010 be refused.

(4)    The application contained in the Applicant’s Notice of Motion filed 14 September 2010 that the Applicant be provided with copies of the transcript of proceedings NSD426/2009 and NSD538/2010 be refused.

(5)    The application contained in the Applicant’s Notice of Motion filed 14 September 2010 for a declaration that the Applicant is not liable for the costs of Local Employment and Training Solutions, Catholic Care and the Catholic Archdiocese of Sydney in matter NSD538/2010 be refused.

34    For the reasons that follow I am not satisfied that the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered or that the orders caused Mr Chan substantial injustice.    

The refusal to accede to the application for recusal

35    In the recusal application Mr Chan expressly disavowed any suggestion of actual bias. It is also clear that the application did not raise a possibility of apprehended bias either.

36    According to his Honour’s judgment the application was based on Mr Chan’s belief that the listing of the proceeding before him as the same judge who had determined another application Mr Chan had made for preliminary discovery is the result of a conspiracy by unknown persons from the government, the Mafia and drug runners, and the registry of this Court. I pause to note that in the previous matter Mr Chan was successful. Mr Chan’s submissions are summarised at length in his Honour’s reasons and it is unnecessary for me to repeat them here.

37    Absent clear proof of actual bias or the possibility that a fair-minded lay observer might entertain a reasonable apprehension that (s)he might not bring an impartial and unprejudiced mind to the resolution of the question involved in the case, the duty of a judicial officer is to sit: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [33]; Re JRL; Ex parte CJL (1986) 161 CLR 342 at 351-352. His Honour referred to the relevant principles and several decisions of the High Court. He concluded that Mr Chan’s understanding of the doctrine of apprehended bias was misconceived. The nub of his Honour’s decision is captured in the final paragraph:

No factual determination has been made in NSD426/2009 [the previous matter] upon which Mr Chan bases his claim for disqualification. The court is satisfied that since no findings were ever made against Mr Chan, he gave no oral evidence, and no issue of his credit arose, no reasonable ground of apprehended bias exists. Since no other basis exists for disqualification, the application for disqualification is refused.

38    His Honour’s conclusions are unexceptionable. The decision is not attended by sufficient doubt to justify a grant of leave to appeal. Neither, I might add, would a grant of leave be necessary to correct any substantial injustice to Mr Chan. It was always open to him to agitate this matter in an appeal from the final orders, should he successfully apply for leave to appeal them.

Refusal of leave to issue subpoenas

39    This ground seeks to appeal from a direction on a matter of procedure. It is well accepted that an appellate court must exercise particular caution in such cases and the Court would not intervene unless there is an error of principle which works a substantial injustice to one of the parties: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 (“Adam P Brown”). In Adam P Brown the plurality (at 177) cited with approval some remarks of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) (1946) 46 SR (NSW) 318 at 323. They bear repeating here:

[T]here is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.'

40    The primary judge refused Mr Chan leave to issue subpoenas to produce against Michael Allen, the Chief Executive of the NSW Department of Housing; Andrew Scipione, the NSW Police Commissioner; and John Lawlor, the Chief Executive Officer of the Australian Crime Commission. In the hearing before the primary judge Mr Chan claimed that the production of documents would assist in his claim to expose the conspiracy against him.

41    His Honour’s reasons were brief, but did not disclose any error. Indeed, as with the question of disqualification, Mr Chan did not identify the error in the grounds of appeal. Noting that the proceeding concerned an application for preliminary discovery, his Honour stated:

Such an occasion is not to be used for the purpose of trawling through documentation of third parties who are not nominated as respondents to the preliminary discover[y] application. Accordingly the Court would regard it as an abuse of its process if this opportunity was taken to seek leave to issue subpoenas.

42    In the circumstances, the subpoenas would amount to nothing more than a fishing expedition. There is no apparent basis for disturbing his Honour’s decision.

Refusal to vary orders

43    His Honour also refused an application which Mr Chan made by notice of motion filed on 14 September to vary two orders made on 24 August 2010. Those orders related to the dates by which Mr Chan was to have filed further affidavits and submissions. His Honour noted that he had had more than adequate time to do so. The history of the proceeding bears this out. On 17 August Mr Chan made oral submissions which his Honour described as “comprehensive” and which lasted the whole day. Still, his Honour gave the applicant the opportunity to put further submissions in writing by no later than 5 pm on 19 August and on 24 August he was given another opportunity to file and serve any further submissions by 21 September 2010. When Mr Chan again complained at the hearing on 30 September that he required leave to photocopy the transcript of the proceedings in order to prepare his submissions on the disqualification application, his Honour reminded him that he had already had a month to do so, including 26 days in which he could have visited the Registry to inspect the transcript. He also reminded him that the dates for filing submissions were dates he, himself, had selected. He then afforded him an opportunity to make further oral submissions.

44    Each of these decisions was discretionary and related to a matter of practice or procedure.

45    His Honour’s approach conformed to the requirements of the legislation. Section 37M of the Act requires the Court to interpret the civil procedure provisions of the Act and Rules in the way that best promotes their overarching purpose, which is the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The overarching purpose includes the efficient use of the judicial resources of the Court, the disposal of proceedings in a timely manner and the resolution of disputes at a cost proportionate to the importance and complexity of the matters in dispute. Section 37P permits a judge to make directions which impose time limits for providing submissions.

46    I conclude that his Honour’s disposition of this notice of motion is not attended by sufficient doubt to justify the grant of leave and no substantial injustice arises.

Refusal to provide copies of the transcript

47    The purported notice of appeal also complained about his Honour’s decision to refuse to make an order providing Mr Chan with copies of the transcript of the various directions hearings and the argument on 17 August as well as transcripts of the Tran proceeding. In his notice of appeal Mr Chan alleges that his Honour failed to give any reasons for his decision. In general, a judicial officer is obliged to give reasons and a failure to do so will be an error of law: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666-667, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270 per Mahoney JA, at 279 per McHugh JA. The allegation, however, is baseless. His Honour dealt with the issue of the provision of transcript on three occasions: At [22] his Honour noted:

It was explained to Mr Chan that it was not the policy of this Court to provide parties, at the Court’s expense, with a copy of the transcript, nor was it the policy of the Court to allow the transcript to be photocopied. The Court however informed Mr Chan that he would be allowed to inspect the transcript in the Registry if he needed to have access to the transcript in order for him to make his submissions.

48    At [29] his Honour repeated:

...it was pointed out to Mr Chan that he had been told on a previous occasion of the Court’s policy and that the transcript had been available to him for inspection at the Registry…

49    These were his Honour’s reasons.

50    I note that in his judgment his Honour also pointed out that he had arranged for a copy of the transcript relating, not just to this matter, but also to the previous matter in which Mr Chan was a party, to be placed on the Court file in sufficient time to enable him to inspect them and make whatever submissions he wished based on them.

51    This decision, too, is not attended by sufficient doubt to warrant a grant of leave.

The application for a declaration that the applicant not be liable for the costs of certain parties

52    His Honour also refused an application Mr Chan made for a declaration that he was not liable for the costs incurred by Local Employment and Training Solutions, Catholic Care and the Catholic Archdiocese of Sydney. His Honour’s reason was that the application was premature. He said:

It was explained to Mr Chan that such an application would need to be made, if at all, at the end of the hearing and that his application for costs was premature.

53    The refusal to make the declaration at the time it was sought was both orthodox and proper and no substantial injustice was occasioned by the decision. It was, as his Honour said, always open to Mr Chan to make such an application at the conclusion of the hearing.

The alleged errors

54    Apart from those mentioned in the purported notice of appeal, Mr Chan did not draw the Court’s attention to any other alleged errors. The supposed factual error mentioned in the notice relates to the previous proceeding. Its relevance is therefore obscure. I have found that the only error of law particularised in the notice (the failure to give reasons for not providing Mr Chan with copies of the transcript) is without foundation.

55    As no other errors were identified and none is manifest, I refuse leave to appeal and an extension of time in which to make the application.

The stay application

56    The second prayer of the first notice of motion sought an order for a stay of the proceeding before the primary judge until the final determination of the purported appeal. It has been overtaken by events. In my earlier decision (Chan v Harris (No 2) [2011] FCA 143) I considered the principles governing the grant of a stay. I do not propose to repeat them here. Suffice it to say that with the publication of the final judgment on 15 December 2010 the order sought would now be futile. In any case, because Mr Chan could have challenged the decision in an application for leave to appeal the final judgment, and because the prospects of success were negligible, there is no reasonable prospect that it would have been granted, if it had been argued before his Honour’s final judgment was published.

57    The application is refused.

Leave to amend the notice of appeal

58    As the notice of appeal is incompetent and leave to appeal has been refused, the third and final prayer of the first notice of motion must also be refused. In any event, the proposed amendments were never identified.

conclusion

59    All bar one of the orders Mr Chan sought in the two notices of motion have been refused. The exception relates to a request made in the second notice of motion for written reasons of a decision I made on 12 November 2010 refusing Mr Chan leave to issue subpoenas. I have given those reasons (see Chan v Harris [2010] FCA 1428 at [12]). In the circumstances it is appropriate that I dismiss both notices of motion. It follows from these reasons that I must also dismiss the appeal as incompetent.

Associate:

Dated:    11 April 2011