Chan v Harris

The notice of motion filed on 2 February 2011 52 On 15 December 2010 the primary judge acceded to a motion Mr Harris filed on 12 August 2010 to have the proceeding struck out or dismissed for want of prosecution pursuant to O 35A r 3(1)(a) of the Rules on the ground that Mr Chan had failed to comply with the requirements of the Rules and the directions of the Court. It is to be observed that evidence before his Honour showed that the absence of a supporting affidavit had been drawn to Mr Chan's attention in writing by Mr Harris's solicitors on 11 June 2010 and in Court by his Honour on 17 August 2010. In his reasons the primary judge noted that: 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. … 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. 53 His Honour later stated: 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 Mr Harris, 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. 54 Mr Chan remains vexed by this judgment and in the fourth notice of motion asks that it be stayed until the disposition of his purported appeal from his Honour's recusal judgment. (I have referred to the matter as a purported appeal because Mr Chan has not obtained leave to appeal as required by s 24(1A) of the Act and the motion for a declaration he seeks, that the section is unconstitutional also remains to be decided.) 55 The precise form of order he seeks is in the following terms: the whole of the judgments of Justice Cowdroy delivered in the Federal Court case no. NSD 538 of 2010 be stayed until the final determination of this Federal Court case NSD 1372 of 2010 and subsequent appeals (if any). 56 Notwithstanding the use of the plural noun I took Mr Chan to be seeking a stay of the judgment delivered on 15 December. No argument was advanced at the hearing in support of a stay of the recusal judgment. 57 No affidavit was filed in support of this notice of motion. 58 Despite the application and despite the fact that two months have now elapsed since judgment was delivered, Mr Chan has not sought leave to appeal and has not applied for an extension of time for leave to appeal. See O 52 r 10 (2A)(b) of the Federal Court Rules. Nor has he amended his draft notice of appeal so as to allege any errors in the judgment he now asks be stayed. 59 Nevertheless, in oral submissions Mr Chan pointed to a number of matters in the reasons of the primary judge which, he said, were errors in fact-finding. He did not submit that the primary judge erred in law. The alleged errors were said to be: Indicating in [14] that he would refer to both LETS and CatholicCare in the judgment as "LETS". Describing Corrs in [24] as Mr Harris's solicitor; Referring in [25] to Mr Harris as an employee of CatholicCare Sydney. The reference was to a letter Corrs wrote to Mr Chan in which they apparently advised him that Mr Harris, as an employee of CatholicCare Sydney, was not in possession of any documents of the kind he sought but that his employer, CatholicCare Sydney, held such documents. His Honour noted in [26] that Corrs had invited Mr Chan to agree to substitute CatholicCare Sydney for Mr Harris and said that in that event CatholicCare would consent to producing the documents it had in its possession in answer to orders 2, 3 and 4 of Mr Chan's application. Mr Chan declined to accept the offer. Finding (in [27] and [40]) that the absence of a supporting affidavit as the relevant rule required was "fatal" to Mr Chan's claim and that there was no evidence that he had a possible right to relief against Mr Harris or of any inquiries he had made about any action against him or of any likelihood that Mr Harris had any relevant documents in his possession. Mr Chan submitted that the findings amounted to "a half-truth". He accepted that he had not filed a supporting affidavit. He did not quarrel with the primary judge's statements that directions had been made that he do so and he had not complied with those directions. He accepted that he had not presented any evidence. His point was that "we have not come to a stage that this was an issue. The issue with which we were concerned was his disqualification. To preserve the subject of the appeal he could not continue to sit". He submitted that it was "beyond doubt" that, while the appeal from his refusal to disqualify himself was pending, his Honour should not have proceeded further. Stating at [41] that it seems unlikely that "Mr Harris would have any relevant documents in his personal possession" as a mere employee. Mr Chan declared that the proposition that an employee would not have documents is "false", a "twisting of the truth" and "nonsense". I pause to observe that it is likely that Mr Chan overlooked the use of the adjective "personal". Stating at [52] that Mr Chan had advanced no justification for being allowed to inspect the correspondence folder, an order he sought in a motion filed on 10 June 2010 - six months before the judgment. Mr Chan submitted that the time had not yet come for him to do so. Referring at [54] to evidence given by a solicitor at Corrs contained in an affidavit filed in response to another prayer in that notice of motion in which Mr Chan sought an injunction restraining Corrs from acting for Mr Harris in the proceedings based on a submission that he had previously sought pro bono assistance from them and they might therefore have confidential materials. The evidence was to the effect that she had conducted a search, could find no record of Corrs ever having had any dealings with Mr Chan as a prospective client, and that the firm had a practice of returning any original documents to potential clients after a decision had been made not to act for them. Mr Chan submitted that these remarks were "misleading" and "truth-twisting." He did not, however, dispute what the solicitor said or contend that his Honour's summary of her evidence was inaccurate. Rather, he argued that the fact that she could not find the documents did not mean that Corrs did not have them, and "obviously" he had evidence to present when necessary but the time had not come. Making a misleading statement in [75] (also described as a "half-truth" and "truth twisted") by referring to a heavily redacted document purporting to be a medical certificate without including Mr Chan's explanation for the redactions. The explanation was that there was some interference with his doctors, one of whom had died a few days after he had consulted him in what he said were "suspicious circumstances". He said that they were redacted because he did not want Mr Harris's solicitors to see the names or contact details of the doctors. 60 Finally, Mr Chan rejected the finding that he had failed to prosecute the proceeding, pointing to the fact that he had been prosecuting his Honour through the present proceeding. 61 Order 52 r 17 provides: Stay (1) An appeal to the Court shall not: (a) operate as a stay of execution or of proceedings under the judgment appealed from; or (b) invalidate any intermediate act or proceedings; except so far as the Court or a Judge or the court below may direct. (2) The Court may vary or vacate any direction of the Court or the court below referred to in subrule (1). (3) An application for a direction of the Court or a Judge under subrule (1) shall be made to the Court or a Judge by motion upon notice, and may be made whether or not a similar application has been made to the court below. An application for a direction under subrule (2) shall be made to the Court by motion upon notice, and may be made whether or not a similar application has been made to the court below. 62 The relevant principles have been stated repeatedly. It is sufficient for me to refer to the decision of the NSW Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694E where it was held that it is not necessary that special or exceptional circumstances be made out but the applicant for a stay must demonstrate a reason or an appropriate case to warrant the exercise of the Court's discretion in his favour. The Court also cited with approval the following statement of Mahoney JA in Re Middle Harbour Investment Ltd (In Liq) (unreported, NSW Court of Appeal, 15 December 1976) with which the other members of the Court agreed: Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party. 63 These principles have been applied in this Court. See, e.g. Henderson v Amadio (No. 3) (1996) 65 FCR 66, where Heerey J made it clear that a relevant consideration is that the applicant demonstrates that he or she has a reasonably arguable case on appeal. 64 These decisions, however, are not concerned with a case such as this where an applicant requires leave to appeal and leave to appeal has not been sought, let alone granted, and where the time for seeking leave has long expired. In such a case, it seems to me that special or exceptional circumstances should be shown. See Beljajev v Director of Public Prosecutions (1991) 173 CLR 28 at 30; Advanced Building Systems v Ramset Fasteners (Aust) Pty Ltd (1997) 145 ALR 121 at 123. Mr Chan has not demonstrated the existence of special or exceptional circumstances. Even if it is not necessary for him to do so, I would not be satisfied that this is an appropriate case for a stay. On the material presented to me and having carefully considered the submissions he made, I am not persuaded that Mr Chan has a reasonably arguable case on appeal. 65 The first three matters do not disclose error. 66 With respect to Mr Chan's assertions that his Honour was wrong to decide against him on the basis of the absence of evidence when the time had not yet come for him to present his evidence - putting aside the requirement in the rules that a notice of motion be supported by an affidavit (O 19 r 1(2)) - it is sufficient for me to refer to what his Honour said at [84] and [87] of his reasons. At [84] his Honour noted that on 24 August 2010 he had ordered Mr Chan to file and serve any further affidavit evidence on which he sought to rely by 14 September 2010. At [87] he said: 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. 67 At [99] his Honour noted that at the final hearing on 2 November 2010, he gave Mr Chan a further opportunity to provide the evidence upon which he relied in support of his motions and he declined to do so. 68 The time to present the evidence had well and truly come - indeed, it had passed - before the Court made its findings. 69 The failure to include Mr Chan's explanation for the changes he made to the medical certificate is of no consequence as his Honour granted the adjournment in support of which the certificate was presented. 70 As for the fundamental challenge based on the primary judge's decision to deliver judgment whilst the purported appeal from his recusal judgment was pending, Mr Chan's submission is based on a misconception. It is not uncommon for a judge to continue to hear a case having refused a recusal application. The usual course is for aggrieved parties to argue the point before an appellate court if and when the final judgment goes against them. The subject matter of Mr Chan's appeal was not "destroyed" (as he asserted) when his Honour dismissed his application for want of prosecution on 15 December 2010. It remained intact. Had he elected to do so, he could have included his complaint about the recusal judgment in an application for leave to appeal (or, if his point about the constitutional invalidity of s 24(1A) of the Act is right, an appeal) from the final judgment. 71 I therefore refuse the application and dismiss the motion. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.