Supreme Court New South Wales Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270 Hearing dates: 3 September 2013 Decision date: 03 September 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Application for an adjournment not granted. Catchwords: CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - application for adjournment - whether defendant lodged an appeal against the refusal of his legal aid application or that he intends to do so - adjournment refused Legislation Cited: Legal Aid Commission Act 1979 Cases Cited: Attorney General v Chan [2011] NSWSC 1315 Category: Interlocutory applications Parties: Prothonotary of the Supreme Court of New South Wales (Plaintiff) Yau Hang Chan (Defendant) Representation: Counsel: Ms N Adams Solicitors: IV Knight, Crown Solicitor's Office (Plaintiff) Mr Chan, self-represented (Defendant) File Number(s): 2012/350266 Publication restriction: None EX TEMPORE Judgment 1HER HONOUR: Mr Chan, the defendant in these proceedings, faces a very serious charge of contempt arising out of proceedings in the Local Court. This morning he has made an adjournment application relying on the provisions of s 57 of the Legal Aid Commission Act 1979, which provides that: "Adjournment of certain proceedings Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit." 2There is no issue between the parties that Mr Chan did make an application for legal aid in respect of these proceedings and that his application was refused. That he has appealed that decision is in issue. The question of the existence of such an appeal has arisen earlier in these proceedings when the matter was before the Registrar. Mr Chan has never produced any document which evidenced that he has lodged such an appeal. 3In his evidence this morning, Mr Chan said that in May, when the matter was listed for hearing by the Registrar, that he had his legal aid file with him, but that he did not tender his application, being then concerned that he would waive his legal professional privilege in that document. 4Even today, when he sought that the hearing be adjourned pending determination of his appeal, he did not bring his legal aid file to court and so was not in a position to tender the appeal document. At one stage he sought an adjournment for some hours, he said, so that he could retrieve the file from home, but later he said that he was not certain that he would tender the document even if he was given the opportunity to retrieve it. 5I refused that adjournment, and Mr Chan then gave evidence in support of his application, after evidence had been called by the plaintiff as to the outcome of an inquiry it made yesterday of the Legal Aid Commission, as to the status of his appeal. The plaintiff was then advised that no appeal had been lodged. Mr Chan's case was that this advice was unreliable and would not be accepted. 6On refusal of an application for legal aid under s 34(5) of the Legal Aid Commission Act, reasons for the refusal must be recorded. Section 56 of that Act permits an appeal to be brought within 28 days of a refusal of an application for Legal Aid. There is also a discretion to extend the time there given. 7Mr Chan's evidence is that he has been in ongoing correspondence with the Legal Aid Commission over the reasons given for its refusal of his application. He has not filed an appeal using the form provided for that purpose, but he claimed that his correspondence to the Legal Aid Commission amounted to an appeal. On the evidence, that correspondence, if it exists, has been ongoing since the refusal of his application in March. He does not appear to have received any acknowledgment from the Legal Aid Commission that it considers this correspondence to constitute an appeal. There is no evidence that it has been treated as such. 8It would, of course, have been a simple matter, entirely within Mr Chan's own hands, either before the Registrar or on the adjournment application today, to tender the document which he says constitutes his appeal, suitably masked, if that was necessary, to preserve confidentiality in anything which might be privileged. Consideration must plainly be given to Mr Chan's position as an unrepresented litigant but that does not explain his failure to take the simple and available step of tendering his appeal document. 9From his evidence, Mr Chan is plainly well aware of not only legal processes, but also of what is involved in applications to the Legal Aid Commission, of which he says he has made many. Also to be considered is that Mr Chan has been declared a vexatious litigant by order of Adamson J (see Attorney General v Chan [2011] NSWSC 1315). 10In the result, I am satisfied that on the balance of probabilities, Mr Chan has not established on the information put forward that he has either appealed the refusal of the grant of legal aid which he sought, or that he intends to pursue such an appeal. 11A pursuit of reasons for refusal is not an appeal against refusal, notwithstanding Mr Chan's submissions as to his intelligence, understanding and professional qualifications, which he said would make it nonsensical for him to fail to pursue legal representation in serious proceedings such as this, by lodging an appeal against the refusal of the Legal Aid which he sought. 12Such a failure may well be difficult to understand, but could be explained for various reasons, including ongoing endeavours on Mr Chan's part to delay the hearing of these proceedings which, on his submissions, he is concerned will result in him receiving a custodial sentence for the contempt alleged against him. 13My conclusions were reinforced by the evidence of Ms Rabsch, the solicitor who has carriage of the matter for the Crown Solicitor, as to the outcome of the inquiry which she made yesterday afternoon to the grants section of the Legal Aid Commission, as to the status of any appeal by Mr Chan as to the refusal of his application for Legal Aid. She was cross-examined about the contents of her discussion with the officer to whom she spoke, who only identified herself by the name Jackie. 14Just before I began to give my reasons for refusing this application, after the lunch adjournment, Mr Chan rose to make an objection that Ms Rabsch's evidence ought not to have been received, as constituting hearsay. That late objection has to be understood in circumstances where Mr Chan not only insisted that evidence be called from Ms Rabsch before he gave his own evidence, but where he wished himself to call evidence from her. In order to permit him the opportunity of cross-examining Ms Rabsch, the plaintiff called evidence from her, before Mr Chan gave his own evidence. He did not object to any of the evidence which she gave and cross-examined her extensively, as to that evidence. In those circumstances, this late objection to the evidence which she gave cannot be sustained, notwithstanding that Mr Chan appeared today unrepresented. 15True it is that the officer who spoke to Ms Rabsch could conceivably have looked at the wrong file, when answering her inquiry, given that Mr Chan has made many applications for Legal Aid, which have been refused. Given his own failure, however, to take the simple and available step of tendering the document which he relies on as constituting his appeal and the equivocal answers he gave about the questions he was asked about the pursuit of any appeal, it seems to me more likely that the information given to Ms Rabsch, that the file was closed and no appeal has been lodged by Mr Chan, is accurate. 16In the result I have concluded that no basis for adjourning the hearing was established by Mr Chan, he not having established either that he has lodged an appeal against the refusal of his legal aid application, or that he intends to do so. In the result, the adjournment application on that basis must be refused. 17Mr Chan has also foreshadowed, however, that he will ask the Court to make an order under the Rules, referring him for pro bono legal assistance. If that application were granted, it would necessitate an adjournment so that such assistance could be pursued. 18I have asked the plaintiff to seek instructions about that application in the light of the considerable difficulties encountered this morning with the hearing of the adjournment application. I will now hear the parties on that application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2013