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[2011] FCA 597
Federal Court of Australia
2011-05-19
Cowdroy J, Katzmann J, Rares J
Original judgment source is linked above.
REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 These proceedings were commenced by a notice of motion filed on 1 April 2011 seeking an order granting leave to appeal against the judgments of Cowdroy J in proceedings NSD 538 of 2010. Mr Chan's affidavit in support of the notice of motion, affirmed by him on 1 April 2011, simply stated that he was the applicant, annexed a copy of orders made by Katzmann J on 10 March 2011 and he recited that, in accordance with Order 2 made by her Honour, a notice of motion would be filed, concluding: "I consider this filing step as a precaution in the event that I am required to seek leave to appeal against Justice Cowdroy's decisions." 2 Order 2 made by Katzmann J on 10 March 2011 granted leave to Mr Chan to file and serve, on or before 1 April 2011, a notice of motion and affidavit in support seeking leave to appeal and an extension of time in which to do so from the judgment of Cowdroy J of 15 December 2010. 3 It is patent, from the foregoing that, first, the notice of motion as filed by Mr Chan did not seek any extension of time in which to seek leave to appeal and, secondly, that there was no substantive affidavit in support of leave to appeal. His affidavit did not set out any grounds to warrant a grant of leave to appeal.
The procedural background 4 The proceedings have had a substantial history. On 2 May 2011 I ordered in Chambers that, on or before 13 May 2011, Mr Chan serve and provide to my associate a copy of written submissions of no more than five pages as to the basis on which he sought the order in his notice of motion. I ordered that no further documents be filed without the prior leave of the judge. No submissions have been filed and no attempt has been made by Mr Chan to comply with my orders. The motion was fixed for hearing today at 2.15 pm. 5 The solicitors for the respondent wrote to the Court on 3 May 2011 stating that he neither consented nor opposed the application seeking leave to appeal from any orders made by Cowdroy J in the principal proceedings, or any application for an extension of time in which to apply for that leave to appeal; and otherwise, in effect, submitted to any orders of the Court on this application except as to costs. 6 When the matter was called at 2.15 pm today there was no appearance by any party. I stood the matter in the list until 2.40 pm when it was called again and there was no appearance. I then began delivering these reasons. 7 Mr Chan sought preliminary discovery under O 15A rr 3 and 6 of the Federal Court Rules in the proceedings before Cowdroy J. His Honour was required to consider a number of applications by Mr Chan in the course of those proceedings. An important application was made to his Honour that he should disqualify himself. His Honour rejected that application for reasons that he delivered on 12 October 2010: Chan v Harris [2010] FCA 1099. His Honour then proceeded to set the substantive matter down for hearing. 8 In the meantime, on 18 October 2010, Mr Chan filed a notice of appeal from his Honour's decision not to disqualify himself. Katzmann J dealt with issues concerning the notice of appeal and a number of other issues raised by Mr Chan in judgments which her Honour delivered. First, her Honour ordered on 17 December 2010 that Mr Chan 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, together with any further grounds he might wish to raise in relation to the subsequent judgment that Cowdroy J had given on 15 December 2010 dismissing Mr Chan's application for preliminary discovery: Chan v Harris (No 2) [2010] FCA 1393. His Honour determined that he was not satisfied that the preconditions for an order granting preliminary discovery had been met by Mr Chan, among other reasons, because Mr Chan had not complied with the requirements of the Rules to file an affidavit in support of that application. Justice Cowdroy also concluded that the history of Mr Chan's conduct of the litigation before his Honour demonstrated an inability or unwillingness on his part to co-operate with the Court and with the respondent which warranted his Honour exercising his power to dismiss the proceedings under O 35A r 3(1)(a) because Mr Chan was in default under O 35A r 2(1)(f) by failing to prosecute the proceedings with due diligence. Mr Chan has not filed a draft notice of appeal or identified any further grounds of challenge to Cowdroy J's decisions in any other document other than those in his notice of appeal filed on 18 October 2010 despite Katzmann J's order of 17 December 2010 that he do so. 9 Justice Katzmann's first decision was Chan v Harris [2010] FCA 1428. On 24 February 2011 her Honour delivered a second judgment in which she considered the notice of appeal filed on 18 October 2010. Her Honour held that Mr Chan required leave to appeal before he could file that notice of appeal, his Honour's decision being interlocutory, and that no leave to appeal had been sought or granted. She said that, on the material presented to her and having carefully considered Mr Chan's submissions, she was not persuaded that he had a reasonably arguable case to justify a grant of leave to appeal in respect of the decision of Cowdroy J not to recuse himself. Accordingly, Katzmann J refused the application for leave to appeal on the grounds in the notice of appeal filed on 18 October 2010: Chan v Harris (No 2) [2011] FCA 143. Ultimately, on 11 April 2011 her Honour dismissed that appeal as incompetent and dismissed other motions that Mr Chan had brought: Chan v Harris (No 3) [2011] FCA 343.
The late adjournment submissions 10 After I commenced delivering these reasons the Registry caused to be delivered to the Court at about 2.42 pm today a facsimile of a submission by Mr Chan, the transmission receipt stamp for which indicated that he transmitted it at 2.34 pm today. Mr Chan's submission sought an adjournment for "medical reasons". He stated that the basis of that application was annexure A to the submission, being what he said was a "redacted copy of the medical certificate, dated and issued by a General Practitioner earlier today". He went on to claim that there would be further medical assessments by relevant specialists and the result of those would be available only later. He asserted that some of the reasons for the redactions had "already been filed or in the transcripts of the proceedings" heard by Cowdroy J or Katzmann J, and would not be repeated in his submission. This submission also noted that there was often "deliberate concealment of this type of medical certificate accompanying an urgent application for adjournment on medical grounds". Mr Chan asserted that, in short, there were people inside the Court's Registry targeting him in order to prejudice his supposedly urgent application for adjournment by often concealing from the sitting judicial officer the type of medical certificate he had sent to the Registry by facsimile. 11 Annexure A to Mr Chan's submission, which he described as a "redacted medical certificate", is reproduced below:
Consideration 12 As is evident, the "certificate" is not a medical certificate at all. It is vacuous. It does not state any opinion or any medical condition. It does not give any indication as to what any unfitness of Mr Chan is. 13 In my opinion, Mr Chan's use of that document is an abuse of the process of the Court. The supposed submission is an attempt to impugn, without the slightest basis, officers of the Registry who have done nothing to warrant his unfounded allegations. The medical certificate indicates not the slightest ground for an adjournment. 14 Mr Chan has been fully on notice of the need to be ready for today's hearing. For over two weeks he failed to comply with the orders of the Court to file submissions in support of his application for leave to appeal but has not done so and has not given any explanation for that failure. The medical certificate says nothing about his ability or inability to have provided such submissions by 13 May 2011. 15 In my opinion, these proceedings amount to a plain abuse of the process of the Court. They have no prospect of success. It is time that these vexatious proceedings were brought to an end. For these reasons, I will make orders that the motion filed on 1 April 2011 be dismissed. It is appropriate that Mr Chan pay the respondent's costs, if any, on a complete indemnity basis. In addition, Mr Chan should show cause, by filing and serving an affidavit explaining why he should not be prohibited from filing further proceedings in the Court, without the leave of a judge or the Court first had and obtained. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Chan
Harris