Chan v Harris [2010] FCA 1099

Chan v Harris [2010] FCA 1099

The judge's prior conduct of NSD426/2009 did not provide a reasonable ground for apprehended bias in NSD538/2010 because no factual determination adverse to Mr Chan had been made, Mr Chan gave no oral evidence, no issue of his credit arose, and the mere fact that the same judge had presided in the earlier preliminary discovery matter did not justify disqualification. The proposed subpoenas would be an abuse of process because preliminary discovery was not to be used to trawl through documents of third parties who were not respondents. The transcript and timetable requests and premature costs declaration were also refused.

Jurisdiction
Australia
Judgment Date
12 October 2010
Procedural Posture
Application for Preliminary Discovery With Interlocutory Notices of Motion / Interlocutory Decision on Application for Disqualification and Related Motions
Outcome
The application for disqualification and the related applications in the applicant's notices of motion were refused.
Legal Topics
['disqualification of Judge' 'apprehended Bias' 'preliminary Discovery' 'subpoenas' 'court Transcript Access' 'costs']
['practice and Procedure'] ['disqualification of Judge' 'apprehended Bias' 'preliminary Discovery' 'subpoenas' 'court Transcript Access' 'costs']

Case Brief

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Procedural Posture

Application for Preliminary Discovery With Interlocutory Notices of Motion / Interlocutory Decision on Application for Disqualification and Related Motions

Legal Issues

  1. 1 ['Whether the judge should disqualify himself from hearing NSD538/2010 because he had previously heard and made orders in NSD426/2009 involving the applicant.' 'Whether leave should be granted to issue subpoenas against third parties in an application for preliminary discovery.' 'Whether orders concerning time for further affidavits and submissions should be varied and whether the applicant should be provided with copies of transcripts.' 'Whether a declaration should be made that the applicant was not liable for costs of Local Employment and Training Solutions, Catholic Care and the Catholic Archdiocese of Sydney.']

Ratio Decidendi

The judge's prior conduct of NSD426/2009 did not provide a reasonable ground for apprehended bias in NSD538/2010 because no factual determination adverse to Mr Chan had been made, Mr Chan gave no oral evidence, no issue of his credit arose, and the mere fact that the same judge had presided in the earlier preliminary discovery matter did not justify disqualification. The proposed subpoenas would be an abuse of process because preliminary discovery was not to be used to trawl through documents of third parties who were not respondents. The transcript and timetable requests and premature costs declaration were also refused.

Court Disposition

The application for disqualification and the related applications in the applicant's notices of motion were refused.

Orders

  • ["The application for disqualification contained in the Applicant's Notice of Motion filed 17 June 2010 be refused." '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,...