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Attorney General v Chan

Attorney General v Chan

Case [2011] NSWSC 1315 4 November 2011

Vexatious Proceedings Act 2008

Abuse of Process

Jurisdiction

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Attorney General v Chan [2011] NSWSC 1315
Hearing dates: 18 October 2011
Decision date: 04 November 2011
Jurisdiction: Common Law
Before: Adamson J
Decision:
1) That, pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, the Defendant is prohibited from instituting proceedings in New South Wales without leave of the Court.
2) That, pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008, all of the proceedings in New South Wales already instituted by the Defendant be stayed.
3) That the Defendant pay the Plaintiff's costs.

Catchwords: PROCEDURE - Vexatious Proceedings Act 2008, s 6, s 8 - Whether proceedings are vexatious - meaning of "vexatious" - whether proceedings were conducted frequently - meaning of "frequently"
Legislation Cited: - Evidence Act 1995 (NSW) - s 91
- Federal Court of Australia Act 1976 (Cth) - s 24(1A)
- Freedom of Information Act 1982 (Cth) - s 53
- Interpretation Act 1987 (NSW) - s 19
- Privacy and Personal Information Protection Act 1998 (NSW) - s 27
- Vexatious Proceedings Act 2008 (NSW) - s 6, s 8
Cases Cited: - Attorney General v Croker [2010] NSWSC 942
- Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
- Attorney General v Michael [2005] WASC 203
- Attorney General (NSW) v Wilson [2010] NSWSC 1008
- Chan v Chen & Ors [2004] NSWCA 288
- Chan v Department of Education & Training [2009] NSW ADT 85
- Chan v Department of Education & Training (GD) [2010] NSW ADT AP 7)
- Chan v Harris [2010] FCA 1099
- Chan v Harris (No 2) [2010] FCA 1393
- Chan v Harris [2010] FCA 1428
- Chan v Harris (No 2) [2011] FCA 143
- Chan v Harris (No 3) [2011] FCA 341
- Chan v Louey [2006] NSWSC 605
- Chan v Louey [2007] NSWSC 272
- Chan v NSW [2011] FCA 287
- Chan v Perry [2009] NSWSC 1278
- Chan v Perry [2009] NSWSC 1293
- Chan v Reynolds; Chan v Department of Housing [2009] NSWSC 792
- Chan v Sato, 17 April 2009 (unreported)
- Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335
- Chan v State of New South Wales [2010] HCATrans 119
- Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63
- Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201
- Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
- Siteberg v Maples [2010] NSWSC 1344
- Solicitor's Clerk, Re a [1957] 3 All ER 617
Category: Principal judgment
Parties: Attorney General (Plaintiff)
Yau Hang Chan (Defendant)
Representation: Counsel:
J.S. Emmett (Plaintiff)
No appearance (Defendant)
Solicitors:
Crown Solicitor's Office (Plaintiff)
Self represented (Defendant)

File Number(s): 2011/097223

Judgment

By summons filed on 25 March 2011 the Plaintiff seeks orders (vexatious proceedings orders) under s 8 of the Vexatious Proceedings Act 2008 (NSW) (the Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney General v Chan

Details

AGLC: Attorney General v Chan [2011] NSWSC 1315
Case: [2011] NSWSC 1315
Decision Date: 04 November 2011

CaseChat Overview and Summary

The Attorney General of Victoria instituted proceedings against Mr Chan, pursuant to the Vexatious Proceedings Act 2008, seeking a declaration that Mr Chan's legal proceedings were vexatious. The proceedings came before the Supreme Court of Victoria, where the court was required to determine whether Mr Chan's legal actions constituted vexatious proceedings under the Act. Specifically, the court had to consider the meaning of "vexatious" and whether Mr Chan's proceedings were conducted frequently, as defined by the Act.

The central legal issue before the court was the interpretation of the term "vexatious" within the context of the Vexatious Proceedings Act 2008. Additionally, the court needed to determine whether Mr Chan's actions qualified as "frequently" engaging in vexatious proceedings, in accordance with the Act's provisions. The court engaged in a detailed analysis of the statutory language, relevant case law, and legislative intent to ascertain the appropriate interpretation of these terms. The court found that the term "vexatious" encompassed proceedings that were pursued for an improper purpose, such as harassing or oppressing another party, or where there was no realistic prospect of success. Furthermore, the court held that "frequently" referred to a pattern of conduct that involved multiple instances of vexatious behaviour over a period of time.

After conducting a thorough analysis of the evidence presented and the statutory framework, the court concluded that Mr Chan's legal proceedings were indeed vexatious. The court determined that Mr Chan had engaged in a pattern of conduct that was oppressive and had no reasonable prospect of success, thus satisfying the criteria for vexatious proceedings under the Act. Consequently, the court granted the Attorney General's application for a declaration that Mr Chan's proceedings were vexatious. The court also made an order that Mr Chan pay the Attorney General's costs associated with the proceedings.

Orders