Chan v Louey

The plaintiff's subpoenae addressed to the Director General of Education and Training returnable on 30 November 2006 and to the Minister For Education and Training returnable on 4 December 2006 be set aside generally pursuant to r 33.4 of the UCPR . 2 The background to the application may be summarised as follows: By summons filed on 16 November 2005 the plaintiff commenced proceedings seeking to challenge, by way of judicial review, certain decisions made by the defendants relating to the plaintiff's attendance and results obtained in a course conducted by the second defendant, described as "Information Services Industry". On the defendants' motion the proceedings were summarily dismissed by Malpass AsJ on 26 June 2006 (Chan v Louey [2006] NSWSC 605). It is appropriate that I refer to certain passages in his Honour's judgment in light of the issues raised by the motion. 3 At paragraph 9 his Honour observed: "Since the commencement of the proceedings, the matter has been before the court on numerous occasions. There have been interlocutory applications (including an unsuccessful application by the plaintiff to remove the second defendant as a party and a notice of motion filed by the defendants). The latter sought summary relief." 4 At paragraph 18 his Honour said: "Whilst it can be understood that the plaintiff may be concerned about these decisions, it is difficult to comprehend how they came to deserve the present prolix and expensive litigation. The import of the two decisions is relatively minor, when regard is had to the volume of work that has to be handled by this busy court and its function of dealing with cases of importance." 5 His Honour went on to state at paragraph 25: "In my view, the claim is hopeless and doomed to failure." 6 Finally, I note that his Honour made these observations: "As earlier mentioned, the second defendant provided its own internal procedure enabling the challenge to either of these decisions (see Annexure C of the Katherine Curic affidavit). The plaintiff chose to immediately bypass this facility and resort to these court proceedings. He could have pursued the faculty and still come to this court, had he remained unsatisfied. The facility may still be available to him. It was a facility that would have provided the parties with a cheaper and more expeditious remedy. It was a remedy which was more appropriate for the dealing with the decisions (inter alia it was a challenge of wider scope and would have enabled the plaintiff to bring a challenge involving the merits of the decision). In my view, the defendants have demonstrated a clear case for summary relief. It seems to me that the plaintiff's claims cannot succeed. Leaving aside these matters, I consider that the court should also have regard to other matters (the futility of the granting of the relief sought and the availability of the non-curial remedy) in exercising the discretion." 7 I interpolate that his Honour's reference in canvassing the discretionary considerations (which were subsidiary to his opinion that the claim was hopeless) to the futility of granting relief, appears to be a reference to evidence that the course expired at the end of 2005 and that the plaintiff of his own volition had withdrawn from it prior to that time. 8 By notice of motion filed on 18 July 2006, the plaintiff sought an order pursuant to Pt 51 r 5(3) of the Supreme Court Rules 1970 extending the time in which to bring an appeal. That motion was supported by two affidavits. Subsequently, the plaintiff filed a motion on 2 August 2006, which was supported by four affidavits, pursuant to r 49.8 of the UCPR, claiming to appeal from the whole of Malpass AsJ. In prayer two the plaintiff claimed orders including that he be given leave to adduce further evidence and fresh evidence pursuant to r 49.12 of the UCPR, and to administer interrogatories and serve notices to produce and that the defendants give discovery. He also sought declaratory relief including a declaration that: "The Crown Solicitors or the relevant solicitor(s) with carriage of proceedings engaged by that office has/have contravened rule A.21 (i.e. 'a practitioner must not knowingly make a misleading statement to a court on any matter'), or A.22 (i.e. 'a practitioner must take all necessary steps to correct any misleading statement made by the practitioner to a court as soon as possible after the practitioner becomes aware that the statement was misleading'), or both of the solicitors rules made under the Legal Profession Act 2004 and that the Crown Solicitor's Office cease to act for the defendants." 9 On 4 September 2006 the plaintiff filed a further notice of motion by which he claimed various orders, including that the defendants produce the original of the roll book. The motion of 4 September was supported by four affidavits, one of them of 67 pages. This motion was superseded by an amended motion filed on 20 September. The motion filed on 20 September was supported by four affidavits, one of 53 pages. 10 The September motion came on for hearing before Hoeben J on 27 September 2006. His Honour noted (at paragraph 3): "I raised with Mr Chan the regularity or otherwise of the notice of motion when the summons on which it was based had already been dismissed. He explained to me that the purpose of the notice of motion was to obtain evidentiary material to enable his appeal, that is, the appeal from the decision of Associate Justice Malpass, to better proceed." 11 His Honour declined to make the orders that were sought, save one which related to prayer three. It is necessary to say something about this order since it has been prominent in the way the matter has been argued before me. It will be recalled that Malpass AsJ made reference to the internal procedure permitting the challenge of decisions. The plaintiff sought production of a number of documents including documents relating to any internal review conducted in accordance with rule 9 of the TAFE Policies Supplement No 37 of 2002. Hoeben J observed that he was not able to ascertain with any clarity during his exchanges with Mr Chan whether an internal review had been carried out, either by TAFE at its own motion or on the request of Mr Chan (paragraph 8). His Honour went on to note that it was not entirely clear what the relevance of such a review would be to an appeal from the decision of Malpass AsJ. His Honour then said this (paragraph 9): "Nevertheless, it does seem to me that if such an internal review did take place that the court ought make an order requiring production to the court in the same way as a subpoena of the documents sought by Mr Chan." 12 His Honour ordered that any documents relating to an internal review carried out by TAFE be produced to the court within 14 days. His Honour noted that one and a half hours of court time had been taken up and that the only matter upon which the plaintiff had succeeded was a matter to which the defendants had consented. 13 Following the determination of the motion, by letter dated 10 October 2006, Mr Dalla-Pozza, a solicitor with the Crown Solicitor's Office, wrote to the Registrar of the Court noting the terms of Hoeben J's order, stating that his client had undertaken a search and had identified what were described as "the relevant documents". These documents were produced to the Court. 14 On 2 November 2006, the plaintiff filed a further motion seeking orders including (i) that Mr Dalla-Pozza be cross-examined as to whether he had complied with Hoeben J's order and (ii) that the second defendant identify and verify on oath the name of its proper officer responsible for ensuring compliance with the order, such officer to be made available for cross-examination by the plaintiff. The motion also sought orders requiring several named persons to give discovery. The motion was supported by two affidavits and two sets of written submissions. 15 The November motion came before Johnson J on 8 November 2006. His Honour observed that he was not satisfied that any basis had been demonstrated for a reasonable belief that there had been a failure to comply with the orders of Hoeben J. His Honour went on to note: "It is clear that the plaintiff has strong views in relation to this litigation, including this issue. It remains necessary, however, that the application made by him ought to be based on proper ground." 16 His Honour was not satisfied that any basis had been made out for Mr Dalla-Pozza to be cross-examined concerning compliance with the earlier orders of the court. His Honour commented that the progress of the litigation may be assisted if the defendants were to write to the plaintiff setting out their position with respect to the order that had been made by Hoeben J. His Honour dismissed the plaintiff's motion noting, inter alia, that the matter had occupied in excess of one and a half hours' of Court time. 17 On 10 November 2006, Mr Dalla-Pozza wrote to the plaintiff and informed him, inter alia, of the following: "I write on behalf of the TAFE Commission to confirm that it believes that it has complied fully with the record made by his Honour Justice Hoeben on 27 September 2006. You will recall that this order was that the defendants produce to the Registry 'any documents relating to an internal review carried out by the TAFE Commission in respect of Mr Chan'. It is the defendants' position that no internal review pursuant to part 9 of supplement 37 of the TAFE NSW Assessment Policies 2002 has taken place in respect of your results in unit CULLB001A Develop and Apply Knowledge of the Library/Information Services Industry, therefore, you are instructed that there is no documentation falling within the scope of the order made by Justice Hoeben which could have been produced. Nevertheless, a search was conducted and out of an abundance of caution a number of documents were produced to the Registry on 10 October 2006 pursuant to Justice Hoeben's order. Some of that documentation was material created in response to your letter dated 1 December 2005 which concerned in part your results in the above unit. However, your letter was principally concerned with a complaint against the head teacher, Ms Sellwood and was treated as such. It was not, as you have pointed out, dealt with as a request for a part 9 review." 18 Mr Dalla-Pozza apologised should the production of the documents have occasioned any confusion to the plaintiff. 19 In the course of the hearing, Mr Izzo, counsel for the defendants, informed the Court of his instructions that no internal review was conducted by the second defendant and, accordingly, that no document relating to any internal review is in existence. 20 On 20 November 2006, the plaintiff issued subpoenas addressed to Ms Carmel Tebbutt, Minister For Education and Training and Mr Andrew Cappie-Wood Managing Director of TAFE Commission and Director General of the Department of Education and Training. Each subpoena seeks the production of a large number of documents. For present purposes I will note that the subpoena addressed to Ms Tebbutt seeks, among other documents: "The following particulars are given as being non-exhaustive examples of documents within the scope of this subpoena: (a) a review of a TAFE student's result (i.e. a reported grade on the TAFE transcript) may occur in response to a request for review of a result. Any and all documents recording such a response (e.g. any ACDO relating to the plaintiff's case are within the scope of this subpoena." 21 In the subpoena addressed to Mr Andrew Cappie-Wood documents are sought including: "The said rule 9 states that 'a review of an individual student's result may occur in response to a request for review of a result.' Any and all documents recording the response (e.g. an ACDO) of the defendants to the plaintiff's request for review of a result such as the plaintiff's letter dated 18 November 2005 to the defendants." 22 In the defendants' submission, Hoeben J declined to make orders for the production of documents of the character of that which is sought in the two subpoenas. In the second defendant's submission, the subpoenae are an attempt to re-agitate the issue of "discovery" previously refused by Hoeben J. 23 The defendant further notes the limited nature of the issues raised by the appeal from Malpass AsJ's decision, which was to summarily dismiss the plaintiff's claim. There is said to be little, if any, scope for the admission of further evidence on the hearing of the appeal. Taking these circumstances into account, it was submitted that each of the subpoena should be set aside. I consider that for these reasons, each subpoena should be set aside. 24 On 1 December 2006, the plaintiff filed a further notice of motion. This was supported by five affidavits and written submissions. By this motion the plaintiff claimed orders correcting what was described as a clerical mistake or error "arising from" an accidental slip or "omission" in the judgment of Johnson J. The asserted mistake, slip or omission was a reference to the undertaking given by Mr Dalla-Pozza before Johnson J. Other orders seeking to vary Johnson J's judgment are claimed. Prayer four reads as follows: "If order number two above is not made, an order pursuant to UCP rule 28.2 for separate determination of the question of whether the said letter dated 25 November 2005 is a 'rule 9 document' and/or ought to be produced to the court pursuant to paragraph 10 order of Justice Hoeben made on 27 September 2006." 25 Generally, it is submitted by the defendants that the motion filed on 1 December seeks to ventilate dissatisfaction with their compliance with the orders of Hoeben J, and in light of Johnson J's decision, this constitutes an abuse of process. 26 The relief claimed in the motion of 1 December is the subject of an amended motion filed on 16 March 2007. The purport of the amended motion is not easy to understand. It includes claims for orders: "A true construction of the scope and purpose of the undertaking given by the defendants and their solicitor Mr Michael Dalla-Pozza before Justice Johnson on 8 November 2006. A determination of whether the defendants and their solicitor Mr Michael Dalla-Pozza have discharged their obligation under the said undertaking upon its above mentioned true construction." 27 Other orders of like character are claimed. There is force to the contention that the filing of this motion sought to re-agitate matters that had been dealt with by Johnson J's judgment. 28 On 7 December 2006, the plaintiff filed a further motion seeking to vary Malpass AsJ's judgment, including by staying the costs order until the plaintiff has exhausted his appeal rights. 29 On 7 March a further motion was filed by the plaintiff, this being a motion that two statements of charge be dealt with. The statements of charge, addressed to the TAFE Commission and the first defendant, charge each with contempt of court arising out of an asserted failure to comply with Hoeben J's orders. 30 On 20 March, the plaintiff filed a further motion, pursuant to leave granted by the Registrar on 12 March, seeking leave to amend his amended summons and to proceed on a statement of claim. This is to be viewed against a background that includes the manner in which Hoeben J dealt with the plaintiff's earlier application to amend his summons. His Honour noted that he had indicated to the plaintiff in the course of argument that he was not disposed to rule on the application because it was a matter best dealt with by the court hearing the appeal. 31 The hearing of the motion commenced on Monday 19 March. This was a busy day in which a number of matters were referred for hearing before the duty judge. It was necessary to stand the plaintiff's motion over for further hearing to today. The motion has occupied the better part of an entire day. 32 The claims that the plaintiff's appeal be dismissed as an abuse of process or for want of prosecution have not been pressed, however in light of the history to which I have referred, the defendants submit that it is appropriate to grant the relief claimed in prayer three. 33 In Markisic v The Department of Community Services of New South Wales [2007] NSWCA 30 Bryson JA observed at (paragraph 2): "A recurring difficulty and source of injustice arises from the circumstances that by making application to the court, usually by a notice of motion in writing, a litigant involves other parties in the need to consider their positions and attend on the hearing of notice of motion and trouble and expense for which an order for costs will not be an effective remedy...excessive and excessively complex notices of motion are burdensome and can be oppressive. There is also a public interest aspect of restraining abuses which take the form of repeated applications and make inappropriate use of the time of the court and public resources. There is a well established practice of making orders restraining a litigant from bringing further interlocutory applications without having first obtained the leave of a judge." 34 It is the defendants' submission that a number of claims have been made in the plaintiff's motions for which there is no proper basis either for the relief or for the allegations made. I do not propose to repeat all of the matters on which reliance was placed. They include that Hoeben J found no basis for the claims made in relation to all matters, save the controversy concerning the internal review. Johnson J found no basis for the serious allegations that were made. 35 Several of the motions seek to re-agitate issues that have been determined. These include the plaintiff's persistent endeavours to obtain orders in the nature of discovery and for the production of documents concerning a Pt 9 review, notwithstanding the proceedings before Johnson J and the letter of 10 November 2006. 36 It is apparent that the plaintiff is or has become focussed on the question of the internal review and his view that the defendants and those who represent them are engaged in some form of chicanery designed to conceal the existence of documents from him. This is despite the terms of the letter of 10 November and despite counsel's statement made on instructions in the course of the proceedings. 37 The focus of the lengthy submissions made by the plaintiff has been his contention with respect to the existence of the internal review documents. 38 Registrar Howe advised the plaintiff at a directions hearing on 8 September or possibly 27 September 2006 that the proceedings were now on appeal and that it would be inappropriate and unnecessary for him to seek discovery orders. Since that time, the plaintiff's attitude has been one of insistence that documents answering the description of rule 9 review documents are in existence and nothing it seems will dissuade him from that view and from bringing further proceedings seeking to obtain them. This is so notwithstanding that the issue to be determined by the pending appeal is a narrow one involving the correctness of the decision to summarily dismiss the summons. 39 I consider that the defendants have made out a case for making order three. I consider that the appropriate course is for the appeal to be listed for hearing at an early stage to give the plaintiff the opportunity to have the matter determined. I propose to stand over each of the motions that are extant so that the judge hearing the appeal can deal with them. 40 I am satisfied that the two subpoenas should be set aside. 41 For these reasons the orders that I make are: 1. Dismiss prayers one and two in the amended notice of motion. 2. The plaintiff Yau Hang Chan be restrained from filing and from serving any notice of motion and from making any oral application in these proceedings without the leave of a judge of the court. 3. In case Yau Hang Chan shall, without the leave of a judge of the court, file or serve any notice of motion other parties are not to attend at the return of the notice of motion, and they are not to participate in proceedings upon the notice of motion unless a judge of the court shall otherwise direct. 4. Unless the court shall think fit to give such direction, any such notice of motion shall be dismissed without being heard. 5. Leave pursuant to order two is to be sought by written application setting out the full basis on which leave is sought and the full basis for the claim for relief with a copy of the proposed notice of motion. 6. No oral hearing will take place on the application for leave, which will be determined without notice to other parties, unless the judge otherwise directs. 7. The subpoenae addressed to the Director General of Education and Training returnable first on 30 November 2006 and to the Minister For Education and Training returnable on 4 December 2006 are set aside generally pursuant to rule 33.4 of the Uniform Civil Procedure Rules 2005. 8. The plaintiff is to pay the costs of the motion.

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Judgment (14 paragraphs)

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Cases Cited (2)