Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 2) [2014] NSWSC 98

Supreme Court New South Wales

Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 2) [2014] NSWSC 98 Hearing dates: 19 February 2014 Decision date: 20 February 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Adjournment application refused. Catchwords: CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - application for adjournment - no proper basis for adjournment - adjournment refused Legislation Cited: Civil Procedure Act 2005 Legal Aid Commission Act 1979 Uniform Civil Procedure Rules 2005 Cases Cited: Attorney General v Chan [2011] NSWSC 1315 Chan v TAFE Commission & Anor (Supreme Court of New South Wales, unreported, 30 June 2011 Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270 Category: Interlocutory applications Parties: Prothonotary of the Supreme Court of New South Wales (Plaintiff) Yau Hang Chan (Defendant) Representation: Solicitors: Ms B Baker IV Knight, Crown Solicitor's Office (Plaintiff) Mr Chan (self-represented) File Number(s): 2012/350266 Publication restriction: None

Judgment 1Yesterday, I granted one and refused two other adjournment applications made by Mr Chan, an unrepresented litigant declared to be a vexatious litigant by order of Adamson J (see Attorney General v Chan [2011] NSWSC 1315). 2In this matter the plaintiff seeks a declaration that Mr Chan was in contempt of the Local Court in December 2011 when he refused to comply with an order for examination made under Rule 38.5 of the Uniform Civil Procedure Rules 2005. The matter had been listed for a four day hearing, the hearing in September 2013 having been adjourned when Mr Chan was referred for pro bono legal assistance, given the serious allegation which he faced (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270). 3The first application granted was for a short adjournment of half an hour made at the commencement of the hearing, so that Mr Chan could photocopy documents he wished to rely on. The plaintiff consented to that application. The second and third adjournment applications were opposed and refused. 4The hearing had been fixed to suit Mr Chan, after he was referred for pro bono legal assistance and assistance was provided by two counsel. When the matter came into the list for directions in October, they were granted leave to withdraw, Mr Chan having received advice from them, which he was not prepared to accept. 5Various directions were then given. Mr Chan foreshadowed that he might seek a further adjournment, which he was to advance by way of motion supported by an affidavit prior to the hearing. He did not make such an application. 6The second adjournment application was made yesterday at a time when Mr Chan had not photocopied the documents he wished to rely on during the first adjournment. As was later confirmed by his conduct of the third adjournment application, it became apparent that he was not then prepared to advance his oral application, having not even decided what evidence he would seek to rely on, to support that application. 7The adjournment application was refused and the hearing then commenced with a short opening of the plaintiff's case. Mr Chan also opened his case and confirmed that he wished to cross-examine Mr Oom, who had sworn an affidavit on 8 November 2012. At 12.15pm, I adjourned to 2pm so that Mr Chan could do two things. Firstly, to organise the evidence he wished to rely on to advance his third adjournment application. Secondly, to consider what questions he wished to ask Mr Oom in cross-examination. 8At 2pm, Mr Chan made his further adjournment application, still not having decided what evidence he wished to rely on, or photocopying those documents. He had printed and photocopied a submission apparently written on his laptop, which he then sought to expand on orally. Eventually, he tendered a number of documents and gave oral evidence. At 4.30pm, I refused this application for the following reasons. 9Mr Chan relied on the difficulties which he faced in defending the serious charge brought against him given. In summary they included: * The difficulties he faced as an impecunious, unrepresented litigant, given the voluminous documentary material on which his case rested and his physical difficulties in getting that material to court. * The unfair consequences of the vexatious litigant order, which required him to be granted leave, before he could file any process to commence proceedings. * The insurmountable practical obstacles which this presented to his pursuit of his ordinary rights, given the processes which he had to abide by, in order to obtain such leave. * The delays and injustice which resulted from the Court's highly inefficient decision making process in respect of such applications. * The result that he was prevented from defending himself in the way that ordinary litigants were free to do. * The Court's public duty to deal with and resolve his situation, which prevented him ever having a fair hearing, with the result that the Court should order a temporary suspension of Adamson J's order, until these proceedings were concluded, including the exercise of any rights of appeal and that the proceedings should be adjourned indefinitely until such a suspension was ordered. * The pursuit of his appeal against the Legal Aid Commission's refusal to grant him legal aid. * His unusual and special circumstances, given that he was being targeted by an illicit drug distribution organisation; the refusal in 2006 of his application for waiver/deferral of the fee for filing an appeal against a decision of Bell J; and links between the drug distribution organisation and the refusal of the fee waiver application, provable by him seeking telephone surveillance records from Australian and overseas agencies. * The potential that he would face life imprisonment given that the proceedings would leave him vulnerable to further attempts to enforce the examination order the genesis of the contempt charge which he faced, which he would also refuse and thus face further punishment for further contempt. * The need to further research the law in relation to the Rule 38 of the Uniform Civil Procedure Rules 2005 and whether as a matter of discretion the order sought should be made in these proceedings. 10Mr Chan explained that in the Local Court, he had challenged by notice of motion the validity of the 2011 examination order which resulted in the contempt allegation the subject of these proceedings, when he refused to submit to that examination. That motion was dismissed. He appealed that decision to this Court. Fullerton J struck out those proceedings (see Chan v TAFE Commission & Anor (Supreme Court of New South Wales, unreported, 30 June 2011). His application for fee waiver for the appeal from that decision was refused. Adamson J made the vexatious litigant order on 18 October 2011. 11It was in the Local Court in December 2011 that Mr Chan refused to comply with the examination order. He said that he would continue to refuse to comply with that order, no matter the outcome of these proceedings and thus faced life imprisonment. Mr Chan also explained that in the Local Court in December, his contention was that given that his appeal as to the rejection of his challenge to the invalidity of the examination order had never been determined, he was not bound by the order. It followed that he had never intended to do any legal wrong. 12Mr Chan explained that his difficulties had arisen in 2005 in proceedings before Malpass AsJ. Amongst other problems he had wrongly been refused an adjournment of the hearing in order that he could amend his admittedly inadequate pleadings. That application had been wrongly refused. He suffered similar problems later. 13The evidence on which Mr Chan relied sought to explain why he considered himself to be the victim of an ongoing conspiracy between members of a drug organisation who were his neighbours and corrupt members of various government departments, including the Attorney General's Department employed in the Court's Registry, members of the police force and others. The result was constant harassment, of which he gave examples such as his windows being broken and wet bread being thrown at him and his front door, particularly at times when he had to prepare for court proceedings such as this. That had been exacerbated by a knee injury, which he had suffered in November 2013. The result was that he devoted his time to other priorities and had not had adequate time to prepare for this hearing. He also claimed to have other commitments which he needed to attend to, including a commitment at Centrelink. 14Mr Chan also claimed that he intended to pursue his Legal Aid appeal, with the result that the proceedings had to be adjourned in accordance with the requirements of the Legal Aid Commission Act 1979. 15I could not accept these submissions as establishing a basis upon which this hearing could justly be adjourned again. 16Section 57 of the Legal Aid Commission Act, 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." 17The evidence established no alteration in the circumstances dealt with in the September judgment, so far as his legal aid appeal was concerned. The only document which Mr Chan tendered was a letter sent to him by the Legal Aid Commission in July 2013, in relation to missing files not concerned with any application in respect of these proceedings. He relied on this document to evidence the conspiracy he claimed to be subject to. 18Mr Chan again did not establish 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. As he explained he is intent on a pursuit of information which will support his belief that he is the victim of a conspiracy. He considers that the refusal of his legal aid application is but a part of that conspiracy. He is certainly intent on pursuing information about that conspiracy but that he intends to appeal the refusal of his legal aid application was not established. Given what was decided in September, Mr Chan has had ample opportunity to produce to the Court a document which evidences the pursuit of his appeal. He has failed to do so. His evidence did not establish such intention. 19It is understandable that Mr Chan is anxious about the problems which he faces, given the serious contempt which is alleged against him, the fact that he is unrepresented and the attitude which he has explained he intends to pursue. That he has been declared a vexatious litigant may well have had adverse consequences for him. They are intended by this legislative scheme and of themselves are not a basis for the adjournment or the orders which he pressed, especially when he gave no evidence of any steps which he has been prevented from taking, so far as these proceedings are concerned, as a result of Adamson J's order. 20In October 2013, Mr Chan foreshadowed, but did not make, applications which he could have made. His explanations for not having done so, because of various problems in November and the problems which resulted from the conspiracy he is a victim of, could not be accepted as providing a proper foundation for yet another last minute adjournment, given the time these proceedings have been on foot, the course they have taken, the time which has elapsed since the hearing was fixed and the notice which he has long had of the plaintiff's case. 21In resolving applications such as this the Court and the parties must adhere to the obligations imposed by the Civil Procedure Act 2005. It provides in s 56: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court." 22Section 58 requires the Court to act in accordance with the dictates of justice, when entertaining an adjournment application. It must have regard to the requirements of s 56 and s 57, which provides: "57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1)." 23The Court may also have regard to the matters specified in s 58(2). Section 58(2) provides: "(i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case." 24Section 59 requires that: "In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial." 25Mr Chan is an experienced litigant. He has made adjournment applications in this and other proceedings in the past. He was well aware that another last minute application such as that which he yesterday advanced might not be granted and so had to proceed on the basis that his application might not succeed and the hearing would proceed. That he had taken steps in that regard was apparent from his opening address. 26Mr Chan did not establish that justice demanded that the adjournment application be granted. To the contrary, no proper basis for the grant of another adjournment of the hearing was established on the case which Mr Chan advanced. As I have explained, Mr Chan has been given a fair opportunity to prepare for the hearing fixed at a time which suited him. Whether he avails himself of that opportunity is a matter for him.