Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 3) [2014] NSWSC 103

Supreme Court New South Wales

Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 3) [2014] NSWSC 103 Hearing dates: 20 February 2014 Decision date: 21 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 further adjournment - adjournment refused Legislation Cited: Legal Aid Commission Act 1979 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

EXTEMPORE Judgment 1HER HONOUR: This morning Mr Chan has made a further application for the adjournment of these proceedings in circumstances where yesterday afternoon his application for adjournment of the proceedings was refused for reasons which I published this morning. Dealt with in those reasons were the circumstances of what he claimed was an appeal against the refusal of an application for Legal Aid in respect of these proceedings. I concluded that the evidence had not established that Mr Chan had made or pursued a Legal Aid appeal. Those matters are dealt with at [14] - [18] of the reasons (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 2) [2014] NSWSC 98). 2This morning, when he renewed his adjournment application, Mr Chan tendered an appeal document which he has filed with the Legal Aid Commission today. In that document, he says: "I rely on any or all documents already submitted to you by myself as well as any further correspondences and documents that may be supplied to Legal Aid Commission about this matter." 3His contention is that, by steps he has taken in the past, there is already an appeal on foot. It is in those circumstances that he says s 57 of the Legal Aid Commission Act 1979 requires that these proceedings now be adjourned. 4The application was opposed, the plaintiff relying on the provisions of s 57(b) of the Legal Aid Commission Act. The section provides: "Adjournment of certain proceedings Where it appears to a court or tribunal, on any information before it: ... (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 ..." 5Mr Chan, in advancing his application, responded to that submission by explaining, amongst other things, that he is well aware of the provisions made in s 57. Given the serious consequences which he faces if found to have been in contempt of the Local Court, it is obvious and cannot otherwise be concluded but that his Legal Aid appeal is bona fide. He advanced that submission by explaining his financial circumstances and his consideration that Legal Aid funding was essential, because it would provide him public funding to assist his defence, in circumstances where he is so impecunious, that he has only a $20 photocopying budget. He perceives, therefore, that a grant of Legal Aid will provide him the necessary funding in order to pursue his defence. 6That submission has to be considered in the context of two other relevant matters. The first, that this hearing was adjourned last year and Mr Chan was referred for pro bono legal assistance which he, in fact, received. Counsel, who then advised Mr Chan, were granted leave to withdraw, because Mr Chan was not prepared to accept their advice. 7Consistent with that development in these proceedings last year, is what Mr Chan has repeatedly explained yesterday, and today, to be his position; namely, that no matter what happens in these proceedings, or subsequently, he has no intention of complying with the examination order, the genesis of these proceedings, and that he anticipates, as a consequence, that there will be a series of contempt proceedings brought against him in the future, with punishment imposed by the Court of increasing severity. That is why, he has explained, he anticipates that, in due course, his contempt will be punished repeatedly, with the result that he will eventually face life imprisonment, a sentence more severe than that imposed on murderers. 8It is in all of those circumstances that the question of whether Mr Chan's appeal against the refusal to grant him Legal Aid is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings. Given what has fallen Mr Chan, I am unable to conclude anything other than that the appeal, which has now been filed, is not bona fide; it is frivolous and vexatious, and it is intended to improperly hinder and delay the conduct of the proceedings. The adjournment application is, therefore, refused.