Chan v Harris (No. 2) [2011] FCA 143

Chan v Harris (No. 2) [2011] FCA 143

The Court refused the adjournment because the applicant had sufficient opportunity to prepare and an adjournment would not further the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). The Court rejected any need for recusal because the allegations of misconduct were scandalous, unparticularised and unsupported and did not satisfy the Ebner test for apprehended bias. The requested stays of third-party decisions and other tribunal or Local Court proceedings were refused because the applicant identified no power or proper evidentiary foundation for such orders. Access to transcripts was refused because no transcripts were on the file and no need for them was...

Jurisdiction
Australia
Judgment Date
24 February 2011
Procedural Posture
Practice and Procedure Applications by Notices of Motion in Connection With a Proposed Appeal and Related Stay and Procedural Relief / Determination of Prayers Three and Four of the Notice of Motion Filed on 24 November 2010 and Notices of Motion Filed on 28 January 2011 and 2 February 2011
Outcome
Applications refused or dismissed.
Legal Topics
['stay of Interlocutory Judgment' 'leave to Appeal' 'apprehended Bias and Recusal' 'adjournment' 'submitting Appearance' 'access to Transcripts' 'access to Court Correspondence' 'stay of Other Proceedings']
['practice and Procedure'] ['stay of Interlocutory Judgment' 'leave to Appeal' 'apprehended Bias and Recusal' 'adjournment' 'submitting Appearance' 'access to Transcripts' 'access to Court Correspondence' 'stay of Other Proceedings']

Case Brief

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Procedural Posture

Practice and Procedure Applications by Notices of Motion in Connection With a Proposed Appeal and Related Stay and Procedural Relief / Determination of Prayers Three and Four of the Notice of Motion Filed on 24 November 2010 and Notices of Motion Filed on 28 January 2011 and 2 February 2011

Legal Issues

  1. 1 ["Whether the hearing should be adjourned because a heat wave allegedly interfered with the applicant's preparation." 'Whether unparticularised and unsubstantiated allegations of judicial misconduct required recusal or disclosed reasonable apprehension of bias.' 'Whether decisions or proceedings involving Ms Allen, the Consumer, Trader and Tenancy Tribunal, Housing NSW, or Local Court proceedings should be stayed pending the Federal Court proceeding.' 'Whether the applicant should be given access to transcripts of all proceedings in NSD 1372 of 2010.' 'Whether the applicant was entitled to a declaration of access to correspondence or written communications between the Court and lawyers for opposing parties.' "Whether the final judgment dismissing the applicant's preliminary discovery application for want of prosecution should be stayed pending a purported appeal from the recusal judgment."]

Ratio Decidendi

The Court refused the adjournment because the applicant had sufficient opportunity to prepare and an adjournment would not further the overarching purpose in s 37M of the Federal Court of Australia Act 1976 (Cth). The Court rejected any need for recusal because the allegations of misconduct were scandalous, unparticularised and unsupported and did not satisfy the Ebner test for apprehended bias. The requested stays of third-party decisions and other tribunal or Local Court proceedings were refused because the applicant identified no power or proper evidentiary foundation for such orders. Access to transcripts was refused because no transcripts were on the file and no need for them was...

Court Disposition

Applications refused or dismissed.

Orders

  • ['The orders sought in prayers three and four of the notice of motion filed by the applicant on 24 November 2010 are refused.' 'The notice of motion filed by the applicant on 28 January 2011 is dismissed.' 'The notice of motion filed by the applicant on 2 February 2011 is also dismissed.']