Attorney General v Chan - [2011] NSWSC 1315

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 ):

a. prohibiting the Defendant from instituting proceedings in New South Wales without leave of the Court; and

b. staying all proceedings already instituted in New South Wales by the Defendant subject to leave of the Court.

In support of its substantive application the Plaintiff relies on the affidavit of Christopher Butler affirmed 6 April 201 and the affidavit of Holly Stenning affirmed 10 October 2011.

Preliminary matters

On 5 May 2011, the matter was listed for hearing for two days commencing 18 October 2011. Directions were also made as to the filing and service of evidence and submissions by the parties.

The Defendant filed a document marked "Conditional Appearance" on 21 April 2011. The document contains the following statement: "The defendant appears on condition that the defendant's challenge to the validity of the service of the Summons and a number of other jurisdictional issues will be listed and heard by the Supreme Court."

The Defendant filed a series of documents marked submissions, as follows:

a. Submission dated 20 April 2011, in which he raised issues, including:

i. whether he had been validly served with the summons, which had been left at his premises;

ii. whether the proceedings had been validly constituted in circumstances where the summons had been filed on 25 March 2011 and the identity of the Attorney General had changed as a result of the election;

iii. an alleged conspiracy involving the former Attorney General;

iv. his medical unfitness to attend the hearing on 21 April 2011.

b. Submission No. 2 dated 21 April 2011, which included a reiteration of issues that had been raised in Submission No. 1 (except for iv).

c. Facsimile dated 4 May 2011 but sent on 5 May 2011, at 6.32 am from the Defendant to the Registrar of the Court in which the Defendant said that he was medically unfit for the hearing on 5 May 2011. He also makes allegations as to service and also that the Crown Solicitor was guilty of a fraudulent misrepresentation.

d. My Associate received a facsimile from the Defendant which had apparently been dispatched from a newsagent at 8.32 am on 18 October 2011, being the first day on which the matter was listed for hearing. The facsimile comprised Submission (No. 3) in which the Defendant sought that I determine the "validity of the summons" at the outset, before hearing the Plaintiff's substantive application, in order to afford him a chance to appeal that decision. As to his non-attendance the Defendant's explanation was as follows: "As the Defendant is still in the process of writing his submissions to the court, the defendant will not be able to attend the court in person. The Defendant will use the time to complete his submission instead."

e. Also on the morning of 18 October 2011, the Defendant apparently came to the Registry and to the Crown Solicitor's Office to deliver a further submission, Submission No. 4 and to file an affidavit sworn 17 October 2011, which was filed on 18 October 2011. Although it was marked as an affidavit, it amounted, in substance, to submissions.

The Defendant did not appear when the matter was called on 18 October 2011. His name was called outside the Court three times but there was no response. The Court file records that the Court received a telephone message from the Defendant at 9.40 am on 18 October 2011 to the effect that he would not appear that day.

The Plaintiff sought that the matter proceed on 18 October 2011.

Mr Emmett, who appeared for the Plaintiff, established that the Defendant had been served with the summons, the affidavits in support and the Plaintiff's detailed written submissions in accordance with the UCPR, by reading the affidavits of Mr Saad sworn 13 April 2011 and of Ms Stenning affirmed 17 October 2011. Mr Emmett also relied on UCPR 35.6(6) which provides for the making of access to an exhibit to an affidavit. Annexure "A" to Ms Stenning's affidavit affirmed 17 October 2011, is a letter dated 13 April 2011 from the Crown Solicitor to the Defendant in which he is informed of the exhibit to the affidavit of Mr Butler (being the bulk of the evidence in support of the substantive application and substantially comprising judgments of this Court, the Court of Appeal, the Federal Court and the CTTT). I am satisfied that the Plaintiff has met the requirements of the rules and that the Defendant could have obtained access by that means to the exhibit, had he wished to do so.

Mr Emmett submitted that the Defendant gave no reason why he was unable to attend the Court for the hearing of the matter, pointing only to the circumstance that he proposed to spend the day preparing written submissions. Furthermore, Mr Emmett informed me from the bar table that the Defendant had, that morning, come to the Crown Solicitor's Office to deliver his submission.

I decided to proceed with the hearing of the substantive matter on 18 October 2011. I was persuaded by Mr Emmett's submissions which are outlined above. The Court's directions ought be complied with and the allocation of a hearing date is a matter that ought not be disregarded, without reasonable justification or excuse.

Although the Defendant was not present to make his submissions I asked Mr Emmett nonetheless to address me on matters that were raised by the Defendant, my determination of which and my reasons are set out below.

In response to the Defendant's submission that the summons was invalid because of the change in holder of the office of the Attorney General, Mr Emmett submitted that the argument was without substance for two reasons. First, he said that the Defendant was not served with the summons until 12 April 2011, by which time the current Attorney General held the office. Mr Emmett tendered the Government Gazette to make good that proposition. Secondly, Mr Emmett submitted that the proceedings were brought by the office holder in the name of the office and the effect of s 19 of the Interpretation Act 1987 (NSW) was that the reference to the Attorney General in the Act was a reference to the person holding that office from time to time. Mr Emmett also submitted that no basis had been identified for challenging the retainer of the Crown Solicitor to act on behalf of the Attorney General.

I accept each of the Plaintiff's submissions on this point. The Defendant's challenge to the validity of the summons on the basis of the change in the holder of the office of Attorney General is without substance.

As to the effect of the conditional appearance, Mr Emmett submitted, and I accept that it ought be treated as an unconditional appearance, since no provision is made in the UCPR for such a document. Mr Emmett submitted, and I agree, that the Defendant has chosen not to comply with the UCPR by filing a document entitled Conditional Appearance. In any event, the Defendant was validly served with all documents under the UCPR and has made no application to set aside service of the summons or any other document (nor would there be any apparent basis for any such application).

These preliminary matters having been dealt with, I invited the Plaintiff to proceed with the substantive application.

Directions made following the conclusion of the substantive hearing of the Plaintiff's application

The hearing of the substantive application concluded on 18 October 2011. Mr Emmett informed me at the conclusion of the Plaintiff's submissions that the Plaintiff would not oppose the Defendant being given time to make written submissions on the substantive application, although he sought that there be a page limit imposed on the length of the Defendant's submissions.

Although I considered that the Defendant had already been given an opportunity of being heard within the meaning of s 8(3) of the Act, of which he had chosen not to avail himself, I nonetheless directed that the Defendant file any written submissions on which he proposed to rely on or before 4 pm on 25 October 2011 and directed the Plaintiff to file and serve any written submission in response on or before 4 pm on 1 November 2011. I was not disposed to impose any page limit on the Defendant's submissions.

In making this direction I took into account that the Defendant had indicated by two sets of submissions, marked Submission No. 3 and Submission No. 4 respectively, and both dated 18 October 2011, that he proposed to attend the Registry on 19 October 2011 to collect the transcript of the proceedings on 18 October 2011.

Submissions made following the conclusion of the substantive hearing of the Plaintiff's application

The Defendant filed written submissions dated 25 October 2011 (Submission No. 5) in accordance with the timetable I had directed. In substance, he submitted that because I did not make arrangements for a transcript for the Defendant to be ready for collection on 19 October 2011 (presumably at public expense), my direction "may be as good as no order". The Defendant made no submissions on the substantive matter, namely whether a vexatious proceedings order ought be made.

The Defendant also proposed, in Submission No. 5 that I make orders in terms of proposed short minutes which required the production of same day transcripts of these proceedings and that the Court make them available to the Defendant at the Registry. He reiterated his insistence that the Court determine whether the Summons has been "ruled valid or invalid ... and whether there is a case for the Defendant to answer at all" and this is reflected in the proposed short minutes of order.

On 26 October 2011, the Defendant filed further written submissions (Submission No. 6), together with proposed short minutes of order. Although these submissions were not filed within the time provided for in my direction of 18 October 2011, I note that the Plaintiff has responded to them in his written submissions filed 1 November 2011 and therefore I propose to have regard to them.

In substance, the Defendant reiterates his earlier proposed orders which include a request for transcripts, that the issue of the validity of the Summons be determined in advance of the substantive hearing. The Defendant also seeks leave to file affidavits and submissions either in paper form, by email or by provision of such documents on either CDs or DVDs.

I consider that Court should proceed to decide the Plaintiff's substantive claim on the basis of the evidence and submissions that have been received. I do not propose to defer the determination of the Plaintiff's application any further for the following reasons.

The Defendant has had the Plaintiff's primary affidavit evidence since around 12 April 2011.

The Defendant was ordered to serve any affidavits on which he relied on or before 23 June 2011. The Defendant did not serve any affidavits going to the substance of the Plaintiff's claim by 23 June 2011, nor did he foreshadow the future service of affidavits or seek any extension of time. The Defendant served an affidavit dated 17 October 2011, which was considered by the Court and was the subject of oral submissions on 18 October 2011. That affidavit did not foreshadow further affidavit evidence in the future.

The Defendant, in Submission No. 6, offers no explanation for the failure to prepare any other affidavit evidence in a timely fashion or for the failure to seek an extension of time from the Court for the preparation of that evidence. The Defendant has not indicated the nature of the evidence to be relied on. The Defendant has had ample opportunity to prepare affidavit evidence and the process of the Court should not be held up further.

Further, the Defendant has had an opportunity to make substantive submissions in respect of the Plaintiff's application. The Defendant had the opportunity to make those submissions orally on 18 October 2011 and chose not to take advantage of that opportunity, without offering any adequate excuse. It is to be noted that (as indicated by paragraph 3 of Submission No. 5) the Defendant chose not to appear despite being in the vicinity of the Law Courts Building. The Defendant has also had the opportunity to make submissions in writing.

The Defendant has had an opportunity to obtain the transcript. Like any other litigant, if the Defendant wishes to obtain the transcript the Defendant needs to order it and pay for it in the usual course. I specifically raised this matter at the conclusion of the hearing on 18 October 2011 and noted that the Defendant had made no application for dispensation from the charges associated with obtaining the transcript. The Defendant does not appear to have taken any steps to order the transcript for himself, and the Defendant cannot shift this responsibility to the Court simply by seeking an order in the form of order number 2 to the Defendant's proposed short minutes of order.

Procedural fairness is satisfied by according a litigant the opportunity to be heard: see, eg, Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42]. In any event the sufficiency of an opportunity to be heard is evident from the wording of s 8(3) of the Act, which provides that a Court must not make vexatious proceedings order "without hearing the person or giving the person an opportunity of being heard". That opportunity has been accorded.

General principles

Before turning to the evidence adduced and submissions made, I propose to set out some general principles which are germane to an application under the Act for a vexatious proceedings order.

A vexatious proceedings order may be made under s 8 of the Act if the Court is satisfied that "the person has frequently instituted or conducted vexatious proceedings in Australia".

Section 6 of the Act provides that vexatious proceedings include:

(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(d) proceedings conducted in a way so as to harass, annoy, cause delay or detriment, or achieve another wrongful purpose.

These categories are not discrete, since each of the sub-paragraphs (b)-(d) could properly be regarded as an abuse of process of a court or tribunal. Furthermore, the difference between sub-paragraph (b), which connotes a subjective intention on the part of the Defendant, and sub-paragraph (d), which does not, and is concerned with effect and consequence, rather than motive or design, relieves the Court of the obligation of determining whether the respondent to such an application intends the consequences of his or her actions, or does not.

The term "proceedings" is defined by s 4 of the Act to include interlocutory proceedings as well as appeals. This means that the Court can have regard to baseless applications or appeals. Attorney General (NSW) v Wilson [2010] NSWSC 1008 ( Wilson ) at [15]. Repeated oral applications with no proper basis are relevant: Wilson at [16]. The manner in which the person speaks or acts in the courtroom is relevant: Wilson at [16]; Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 ( Attorney General v Gargan ) at [7]. The term "proceedings" includes matters not only before courts, but also before tribunals.

The purpose of an order is not to impose punishment for past litigious misdeeds, but to shield both the public and the Court itself: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [3], cited with approval in Attorney General v Gargan at [8].

It is a serious thing to deprive litigants of their access to the courts: Wilson at [11].

The term "frequently" is relative; it must be looked at in the context of the litigation being considered: Wilson at [12]; Attorney General v Croker [2010] NSWSC 942 at [22]; Attorney General v Gargan at [7]; Siteberg v Maples [2010] NSWSC 1344 at [31]-[32]. It is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently: Siteberg at [31]. The individual number of proceedings can be quite small if, for example, they are an attempt to re-litigate an issue already determined against the person: Wilson at [14]; Attorney General v Gargan at [7].

A litigant's own protestation as to his or her mental state may be relevant - "frequently enough, the vexatious are betrayed out of their own mouths": Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [9], cited with approval in Attorney General v Gargan at [8].

While the Court needs to form its own view about each piece of litigation relied on by the Attorney General, the Court is entitled to have regard to the result of the proceedings, and where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them: Wilson at [22]; Attorney General v Croker [2010] NSWSC 942 at [125]; Attorney General v Gargan at [7].

As to the exercise of discretion, Perram J said in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [12], cited with approval in Attorney General v Gargan at [8]:

"... the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise."

Whether the proceedings relied upon by the Plaintiff were vexatious

The first question that arises is whether the proceedings relied upon by the Plaintiff are "vexatious proceedings" within the meaning of s 6 of the Act.

A subsidiary question arises, namely, whether proceedings which were conducted prior to the commencement of the Act on 1 December 2008, can be taken into account in deciding whether to make a vexatious proceedings order. As Mr Emmett put it, the Act does not require retrospective operation in circumstances where the power (to make a vexatious proceedings order) is prospective, but the facts on which it may be based are pre-commencement. Indeed, so much appears from the language of s 8(2)(a) itself, which is in the past tense ("has frequently instituted").

An analogous situation occurred in Re a Solicitor's Clerk [1957] 3 All ER 617. In that case, legislation in 1956 enlarged the power of a disciplinary committee to direct that no solicitor employ a person as clerk - before the amendment the power related relevantly to larceny in respect of property owned or controlled by the solicitor, but after the amendment applied to larceny of any kind. The clerk in question had been convicted of larceny (unconnected with property controlled by a solicitor) in 1953. Lord Goddard CJ, Barry and Havers JJ agreeing, held at 619 that the amendment "enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order; but the order has no retrospective effect" .

For the foregoing reasons, I am satisfied that I may take into account any proceedings on which the Plaintiff relies, even where the proceedings were conducted prior to 1 December 2008.

The Plaintiff has grouped the various proceedings brought by the Defendant into nine categories. It is convenient to address the question whether the proceedings are vexatious by reference to these categories, which are set out below. Before doing so, I propose to address the evidence adduced by the Plaintiff and the way in which he puts his application, in general terms, to save repetition.

The evidence adduced by the Plaintiff comprises, in the main, judgments and decisions of tribunals in respect of proceedings in which the Defendant is involved. The Plaintiff, in the absence of the Defendant, but noting the Defendant's objection to the admissibility of such judgments, contended that the judgments were not tendered for the purpose of establishing a tendency on the part of the Defendant. Furthermore, Mr Emmett submitted that the tender, and use, of the judgments relied upon did not infringe s 91 of the Evidence Act 1995 (NSW), which relevantly provides that evidence of the decision or a finding of fact in an Australian proceedings is not admissible to prove the existence of a fact that was in issue in the proceedings. He contended that the judgments were adduced to establish matters other than facts in issue in the proceedings: namely, the outcome of the proceedings and the course they had taken. Furthermore, he contended, in so far as they contained judicial statements that reflected the views of judicial officers of the Defendant's conduct or the merit of the proceedings, they were relevant for the reasons set out in the authorities referred to above.

I accept the Plaintiff's submissions. The judgments establish the procedural matters and the outcome of various applications made by, and against, the Defendant, in the proceedings relied upon by the Plaintiff. Furthermore, they also record the Defendant's conduct in the course of the proceedings. These matters do not constitute findings of facts in issue in the proceedings. Whether such judgments contain statements which express judicial views on the merit, or otherwise, of the Defendant's stance in proceedings, the judgments are the best, if not the only, evidence of such views. Accordingly, I admitted the evidence tendered by the Plaintiff, notwithstanding the Defendant's objection on that basis. Nonetheless I am cognisant of s 91(1) and have not used such judgments for the proscribed purpose.

A: Chen and Fang Tenancy Proceeding

The Defendant was the tenant of premises in Croydon. The Defendant's landlords served a notice of termination in respect of the tenancy on 4 December 2003, requiring him to vacate the premises by 8 February. The Defendant did not vacate the premises and his landlords commenced proceedings in the CTTT. The only reason advanced by the Defendant for not vacating the premises was that he could not afford to move and that he was studying.

The CTTT allowed the Defendant two weeks, rather than the usual seven days, to vacate the premises.

The Defendant appealed the CTTT's decision to the Supreme Court. Such an appeal lay only with respect to a matter of law. Dunford J confirmed the order for possession of the premises in favour of the landlords, subject to a temporary stay.

The Defendant unsuccessfully applied to the Court of Appeal for a stay of the order for possession. Giles JA dismissed the Defendant's application for a stay of execution pending the appeal, notwithstanding the circumstance that the refusal of a stay would effectively deprive the Defendant of the benefit of an appeal on the grounds that there was no substance in the proposed appeal ( Chan v Chen & Ors [2004] NSWCA 288).

The Plaintiff submits that the Defendant's application for a stay in order to appeal to the Court of Appeal was unquestionably vexatious.

Giles JA considered each of the grounds of appeal articulated by the Defendant, which included alleged denials of procedural fairness, insufficient reasons for decision and questions relating to the notice of termination. The Defendant also alleged that Dunford J had erred in the regard he gave to the claimant's assertion of financial hardship if an order for possession was made against him. Giles JA said, at [19]:

"I have sought to summarise the various grounds outlined by the claimant. I appreciate to the full that to decline a stay may well bring the appeal to an end, but nonetheless if the grounds of a foreshadowed appeal are hopeless it would be wrong to inflict upon the other party to the appeal continued inability to exercise that party's rights. It is for these reasons that in my opinion the claimant's application should be dismissed and I order that the Notice of Motion filed on 20 August 2004 be dismissed."

I accept the Plaintiff's submission that the Defendant's application for a stay of the order of possession from the Court of Appeal amounted to vexatious proceedings within the meaning the meaning of s 6(c) of the Act. I find that none of the grounds identified by the Defendant as recorded in the judgment of Giles JA was reasonable. I have also taken into account the views expressed by Giles JA in the passage set out above, with which I respectfully agree. For these reasons, I find that the proceedings for a stay were instituted and pursued without reasonable ground and were, accordingly, vexatious.

B: Failed TAFE Course Proceedings

While the Defendant was studying at TAFE, Ms Louey (a teacher) informed him that he had failed a course. The Defendant brought a claim against the TAFE Commission and Ms Louey that included 59 alleged grounds for relief.

The Defendant sought to cross-examine Ms Louey and the TAFE Commission. Malpass AsJ refused the application on 16 June 2006 because it seemed to him that it could only lead to a waste of time.

On 26 June 2006, Malpass AsJ dismissed the claim on the basis that it was hopeless and doomed to failure ( Chan v Louey [2006] NSWSC 605, at [25]). By notice of motion filed on 18 July 2006, the Defendant sought an extension of time to appeal Malpass AsJ's decision.

On 4 September 2006 (apparently in support of his proposed appeal) the Defendant sought the production of certain documents by the TAFE Commission. On 27 September 2006, Hoeben J ordered the TAFE Commission to produce any internal review which may have been conducted but otherwise dismissed the application. Bell J was informed (on 22 March 2007, see below) by counsel that no internal review had been conducted.

After documents were produced by Mr Dalla Pozza, the solicitor for Ms Louey and the TAFE Commission, the Defendant filed a motion seeking to cross-examine Mr Dalla Pozza and seeking discovery from several named persons. On 8 November 2006, Johnson J dismissed that application.

Following that decision, the Defendant issued subpoenas to Ms Tebbutt, the Minister for Education and Training, and Mr Cappie-Wood, the Managing Director of the TAFE Commission, seeking a large number of documents. The Defendant also filed motions in those appeal proceedings seeking to amend Malpass AsJ's decision of 26 June 2006 and Johnson J's decision of 8 November 2006. He also sought to amend his summons in the appeal proceedings twice.

On 22 March 2007, in Chan v Louey [2007] NSWSC 272, Bell J set aside the subpoenas, dismissed the motions referred to above and ordered that the Defendant not file or serve any notice of motion in the proceedings without leave of a judge. Bell J noted that several of the Defendant's notices of motion sought to re-agitate issues that had been determined.

In 2008, the Defendant commenced two fresh sets of proceedings against Mr Sellwood, the TAFE course co-ordinator, and Ms Calvert, the immediate supervisor of Ms Louey, alleging defamation, misfeasance in public office and negligence.

On 2 October 2009, the date on which the applications for summary dismissal and strike out were heard by Davies J, the Defendant told the Court that he did not intend to press the claims for negligence or misfeasance and wished to replead the claim for defamation.

As appears from the decision of Davies J dated 9 December 2009 ( Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335), the pleading of misfeasance in public office contained allegations that Ms Sellwood's conduct constituted "a calculated, conscious or malicious act" (at [40]) and alleged "fraudulent misrepresentation" against her (at [62]).

Davies J summarily dismissed all of the Defendant's claims against Mr Sellwood and Ms Calvert other than the claim for defamation. The pleading for defamation was struck out and leave was granted to Mr Chan to make an application to file an amended pleading.

The Plaintiff submitted that each of the various proceedings grouped together as the "Failed TAFE Course Proceedings" was vexatious from the beginning. The proceedings were struck out by Malpass AsJ because they were hopeless and doomed to fail. Having failed before Malpass AsJ, the Defendant attempted to re-litigate the same issues again in several different ways - first by bringing a hopeless appeal and second by bringing fresh proceedings against Mr Sellwood and Ms Calvert. The Defendant's conduct of the proceedings was also vexatious - the Defendant repeatedly sought categories of documents that were refused to him, he brought applications to challenge or vary judgments, he sought to cross-examine people unnecessarily and was ultimately the subject of an order by Bell J that he not bring any motion in the first set of proceedings without leave of the Court.

The Plaintiff also relied upon the nature of the allegations that the Defendant made in the course of the proceedings and pointed to the baseless, and unparticularised allegations of fraud and other reprehensible conduct made against individuals.

I accept the Plaintiff's submissions. The Failed TAFE Course Proceedings were vexatious for a number of reasons.

First, both sets or proceedings were instituted and pursued notwithstanding there was no reasonable ground on which to base them. No arguable cause of action was identified by the Defendant in any of the proceedings falling within this category. Accordingly all of the proceedings referred to above are vexatious within the meaning of s 6(c).

Secondly, I find that the Defendant conducted the proceedings in a way so as to harass, annoy, cause delay and detriment within the meaning of s 6(d). The harassment came from the fact that the proceedings were brought, and baseless allegations of reprehensible conduct were made, against individuals who had been performing their duties in an apparently unexceptional way and yet were subjected by the Defendant to baseless litigation and also applications such as to cross-examine particular persons, when there could be no legitimate forensic reason for so doing. I find that these matters could reasonably have been expected also to annoy those involved.

The Defendant, as a litigant in person who is not a legal practitioner, is not bound by the ethical rules that govern members of the legal profession. Were he a legal practitioner, the making of such allegations without a proper basis could amount to professional misconduct. The following passage from the decision of the Court of Appeal in Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201, at 203-204 is, however, apposite to the Defendant because of the effect that the making of such statements can have:

"It is a serious matter to allege fraud against a party in pleadings to which attach the privileges incidental to court proceedings. They may do great harm to a party before a word of evidence has been offered and submitted to the searching scrutiny of cross-examination or to rebuttal ...

Professional discipline may follow if allegations of fraud are made [without proper basis] ... By such means, courts protect their process from the abuse, which would follow from the too ready assertion of fraud against a party, in circumstances where it could not be proved to the high standard required of such allegations ... Behind this principle lie many reasons of policy. One of them is stated above. It relates to the protection against the risk of abuse of court processes."

I do not consider that the circumstance that the Defendant did not press, for example, the allegations of misfeasance and negligence in the hearing before Davies J, to stand to his credit or to neutralize in any way the abuse of process. His preparedness to make such allegations, without any apparent basis or particularity is evidence of vexation. His preparedness to withdraw such allegations when challenged does not, in the context of the evidence as a whole, demonstrate either insight or contrition. As the Court of Appeal said in the passage set out above, the making of such allegations may do great harm.

Delay was also caused because of the number of futile procedural applications that were made.

C: FOI Proceedings

Although the Plaintiff classified matters germane to the FOI application as a separate category, Mr Emmett contended, in my view correctly, that this category can reasonably be seen as associated with the Failed TAFE Course Proceedings category.

On 3 May 2007, the Defendant made a request under the Freedom of Information Act 1982 (Cth) (the FOI Act) to the Department of Education and Training seeking documents concerning or referring to both Mr Chan and TAFE course 19027. Certain documents were produced. Following an application for internal review, the Defendant was granted access to additional pages. The Defendant commenced proceedings in the Administrative Decisions Tribunal ( ADT ) for review of that determination and also for orders that the Department undertake a further search for documents. The Department resisted production of all but one of the documents at issue.

On 21 April 2009, the ADT affirmed the Department's decision and held that the ADT did not have power to order the Department to undertake a further search ( Chan v Department of Education & Training [2009] NSW ADT 85) since this was not a determination reviewable under s 53 of the FOI Act.

The Defendant appealed to the ADT Appeal Panel. The reasons for decision of the Appeal Panel ( Chan v Department of Education & Training (GD) [2010] NSW ADT AP 7) summarise the documents filed by the Defendant. The Appeal Panel said, at [13], in relation to one such document:

"These submissions are lengthy, and contain sweeping allegations of corruption against the staff of the ADT and various officers of the respondent agency. They do not raise, in our view, any ground of appeal relevant to the reasons of the Tribunal under appeal in this case, and are not further considered. They also criticize the Tribunal for inaccurately recording the name of an officer of the agency as 'Com' when it is 'Oom'."

The Appeal Panel, in the same paragraph of its reasons, referred to other documents in which the Defendant criticized the conduct of the determining officer. For example, the Defendant alleged that the determining officer had "never bothered to read one word of documents which he says can be found in archives".

On 19 October 2009, the Appeal Panel refused Mr Chan's application to refer a question to the Supreme Court. On 12 February 2010, the Appeal Panel dismissed the Defendant's appeal.

As referred to above, the Plaintiff submitted that the FOI Proceedings are, in the sense referred to above, a continuation of the Failed TAFE Course Proceedings. The Plaintiff submits that they demonstrate the Defendant's refusal to accept the Court's decision in the earlier proceedings in respect of the various documents then sought by the Defendant.

Nonetheless the Plaintiff does not submit that either the application for the documents under the FOI Act or the application to the ADT were vexatious. The Plaintiff submits that the Defendant's appeal to the Appeal Panel was vexatious on the following grounds:

a. The appeal was instituted and pursued without reasonable ground (s 6(c)); and

b. The Defendant conducted the appeal in a way so as to harass and annoy those persons against whom gratuitous allegations of reprehensible conduct were made, including the determining officer, the staff of the ADT and the staff of the responsible agency (s 6(d)).

I accept the Plaintiff's submissions. I find that the Defendant's appeal to the Appeal Panel from the decision of the ADT was vexatious. It was both instituted and pursued without reasonable ground. The Defendant's preparedness to make allegations against persons without apparent foundation or particularity falls squarely within s 6(d) of the Act.

D: Train Ticket Proceedings

On 22 January 2007, Rail Corp brought proceedings in Sutherland Local Court against the Defendant for allegedly travelling on a train without a ticket.

The Defendant requested that subpoenas be issued in those proceedings to the CEO of the Public Interest Advocacy Centre and against the Director General of the Department of Commerce. In 2008, a magistrate in the Sutherland Local Court set aside the subpoenas.

On 10 April 2008, the Defendant brought proceedings in the Supreme Court against the Sutherland Local Court, including seeking damages for misfeasance by the Magistrate.

The Sutherland Local Court filed a submitting appearance. The proceedings came before the Registrar without a contradictor. Ms Sato, an employee of the Crown Solicitor, appeared before the Registrar as amicus to explain the position. The Defendant was informed that the proper defendant was Rail Corp and was granted leave to amend his summons.

On 1 December 2008, the Defendant instituted proceedings by way of statement of claim against Ms Sato personally. On 17 April 2009, Hoeben J dismissed the Defendant's claim against Ms Sato ( Chan v Sato , 17 April 2009, unreported). Hoeben J said, at [12]:

"It is quite apparent that the proceedings brought by the plaintiff against this defendant, who was doing no more than acting in the course of her employment with the Crown Solicitor and seeking to assist the Court, are entirely misconceived. They are a waste of the Court's time, they are a waste of public money and they should be struck out as soon as possible. They are entirely misconceived. They do not disclose a cause of action ..."

The Defendant, in the course of making oral submissions before Hoeben J sought an order that pro bono legal assistance be provided to him. In refusing the Defendant's application, his Honour said, at [14]:

"One of the controlling requirements for a court in granting such an application is that the administration of justice will be served if such advice or representation is provided. Given the obviously misconceived nature of the current proceedings before me I am not persuaded that any useful purpose would be served by making an order in favour of the plaintiff to enable him to obtain legal advice in respect of these proceedings. These proceedings are utterly misconceived and no amount of legal advice would assist him in pursuing them."

On 27 August 2009, in the Defendant's proceedings against the Sutherland Local Court, the Defendant was given leave to join the Attorney General as a party.

On 18 September 2009, Rothman J dismissed the Defendant's claim both on grounds of delay and absence of reasonable cause of action. Rothman J referred to "the litany of occasions on which the Defendant had declined to appear in Court".

In respect of the proceedings before the Sutherland Local Court, the Plaintiff submitted that it is difficult to imagine how subpoenas to the CEO of the Public Interest Advocacy Centre and the Director General of the Department of Commerce could conceivably be relevant to a charge of travelling on a train without a ticket. I agree and I find that the Defendant's conduct in applying for such subpoenas to be issued renders such an application "vexatious proceedings" within the meaning of s 6(d) of the Act.

The Plaintiff submitted that the institution and conduct of the proceedings brought in the Supreme Court against the Sutherland Local Court were vexatious on a number of grounds. The Plaintiff relies on the absence of a reasonable cause of action (relevant to s 6(c)) and also the serious allegation of misfeasance by a magistrate (relevant to harassment and annoyance under s 6(d)). The Plaintiff also relies on the Defendant's failure to prosecute the proceedings, as found by Rothman J, and his repeated failure to attend Court as being relevant to the delay ground in s 6(d).

I accept the Plaintiff's submission that both the institution and conduct of these proceedings was vexatious within the meaning of sub-paragraphs 6(c) and (d) on the basis contended for by the Plaintiff.

The Plaintiff submitted that the Defendant's institution of proceedings against Ms Sato personally, when Ms Sato simply appeared to assist the Court when the Defendant had commenced proceedings without a proper contradictor, was vexatious. The Plaintiff submitted that such conduct provided another example of the Defendant not only attacking the institutions with which he is dissatisfied but pursuing the private individuals involved by naming them as parties to proceedings.

Although the statement of claim in the proceedings was not in evidence, the transcript of the hearing before Hoeben J on 17 April 2009 and the reasons for decision are in evidence. The reasons are sufficient to persuade me that the Defendant's institution and conduct of the proceedings against Ms Sato were vexatious. I take into account Hoeben J's view of the proceedings (as set out in the extract quoted above) as a relevant consideration, but I also find, with respect, that his Honour was correct in his description of the proceedings. Not only were they instituted and pursued without reasonable ground, but they were also conducted in a way so as to harass and annoy Ms Sato. Further, they were an abuse of process in that the Defendant, having had the earlier proceedings struck out, selected another person as the defendant, as he had done before in relation to the Failed TAFE Course Proceedings. They therefore fall within subparagraphs 6(a), (c) and (d).

E: Public Housing Proceedings

On 18 January 2005, the Defendant signed a lease with the Department of Housing. On 6 March 2008, the Defendant commenced proceedings in the Supreme Court against the Department. On 13 August 2008, the Defendant commenced separate proceedings against Ms Reynolds, an employee of the Department of Housing.

On 13 August 2009, McCallum J dismissed the Defendant's claims against both the Department and Ms Reynolds on the grounds that the various claims were frivolous, vexatious or manifestly hopeless ( Chan v Reynolds; Chan v Department of Housing [2009] NSWSC 792). The nature of the Defendant's claims is summarized below. The Plaintiff submitted, and I accept, that each of those claims was hopeless from the start.

In his claim against the Department, the Defendant made the following allegations and her Honour made the following findings:

a. Mr Chan alleged that his lease had been executed on 18 January 2005 but backdated to 17 January 2005. McCallum J held at [15] that even if the assertion were true, the claim would be frivolous or vexatious because the obvious consequence would be that Mr Chan only pay rent up to the day before the conclusion of his tenancy;

b. Mr Chan alleged that a "conditions report" in respect of the premises was materially inaccurate and that he had informed the Department about the inaccuracy (see [16]). McCallum J held at [23] that the facts advanced by Mr Chan were incapable of sustaining the contention that the conditions report made fraudulent misrepresentations. McCallum J held at [30]-[35] that the allegations in respect of the negligence claim disclosed no cause of action for numerous reasons, including that there was no allegation that the Defendant had suffered a recognized psychiatric illness; that even if he had, it would be doomed to fail since foreseeability could not be established; and that it was doubtful whether an employee of the Department of Housing would owe a duty of care in the circumstances alleged. McCallum J held that there was no basis for the allegation of fraud (see [36]). McCallum J held at [39] that Mr Chan's allegations that the Department was deliberately failing to control subcontractors "derive from perceptions held by him for which there is no objective foundation" and that the paragraphs of the statement of claim disclosed no reasonable cause of action. McCallum J held at [43] that Mr Chan's pleading about a breach of warranty in respect of the "conditions report" was untenable, made no sense and failed to disclose a reasonable cause of action;

c. Mr Chan made claims that he did not dispute were attempts to re-litigate matters that had been resolved by a deed of release dated 5 April 2006 in respect of earlier proceedings. Mr Chan claimed that the Department had failed to comply with the spirit or substance of the deed (see [50]). The alleged breach was by the Department commencing proceedings in the CTTT for access to the premises. McCallum J held at [52] that the contention that the deed of release prohibited this step was "manifestly untenable". McCallum J held further at [53] that breaching the deed would not bring it to an end, and that accordingly Mr Chan's claims were "manifestly hopeless and should be dismissed". McCallum J held at [56] that the claim for damages for breach of the deed by commencing the CTTT proceedings was "manifestly hopeless"; and

d. Mr Chan alleged the Department interfered with his right to quiet enjoyment by sending a letter seeking access to complete a property assessment survey. McCallum J held at [60] that the claim was not reasonably arguable.

In his claim against Ms Reynolds, the Defendant made the following allegations and her Honour made the following findings:

a. the Defendant alleged that Ms Reynold defamed him by sending him a letter about gaining access to inspect smoke alarms. McCallum J held at [68] that the claim was "manifestly hopeless";

b. the Defendant claimed damages for negligence in respect of the letter and the CTTT proceedings commenced by the Department to gain access to inspect smoke alarms (which proceedings were brought because of an erroneous understanding that access had not been granted). McCallum J held at [72] that the claim disclosed no reasonable cause of action;

c. the Defendant alleged in the amended statement of claim that Ms Reynolds had been guilty of misfeasance in public office in respect of the letter. At the hearing before McCallum J, the Defendant stated that he did not press that cause of action (at [70]);

d. Mr Chan alleged that Ms Reynolds defamed him by sending him a second letter about gaining access to inspect smoke alarms. McCallum J said at [76] that it was relevantly identical to the defamation claim in respect of the first letter and was "manifestly hopeless";

e. the Defendant alleged that Ms Reynolds' two letters interfered with his right to quiet enjoyment. McCallum J held at [77] that this was unarguable; and

f. the Defendant alleged that the commencement of the CTTT proceedings was a breach of the deed of settlement. McCallum J held this allegation to be "manifestly unarguable" (at [79]).

The Plaintiff also drew my attention to the passages in the minutes of the Public Housing Customer Council meeting held 15-16 September 2004 (set out at [20]-[21] which were relied upon by the Defendant as giving rise to the inference that the Department has made fraudulent misrepresentations of the relevant facts in the conditions report for many of its new tenants. The extracts are as follows:

"A member raised the question of how to determine if damage is a result of tenant action or if it was present when the tenant first moved into the dwelling."

"Some members noted that, in their experience, the property condition report for a new tenancy as completed by the client service officer can be very different to what the new tenant finds when actually occupying the property."

It is telling that the Defendant made an allegation of fraudulent misrepresentation on the basis of such innocuous statements. Whether he appreciated that the minutes could not on any reasonable interpretation give any foundation for such an allegation does not need to be decided. The effect and consequence of the making of such allegations is to harass, annoy and cause detriment. The making of an allegation of that order without substance amounts to an abuse of process.

I accept the Plaintiff's submissions that the Public Housing Commission Proceedings were vexatious. They amounted to an abuse of process (s 6(a)). They were instituted and pursued without reasonable ground. They were conducted by the Defendant in a way so as to harass, annoy and cause detriment to the persons against whom the baseless allegations were made. I respectfully agree with the findings of McCallum J which are set out above in so far as they identify the reasons why the Defendant's claim was properly struck out. I also take into account her Honour's views as being a matter germane to the determination of the question whether the proceedings were vexatious.

For the reasons earlier given in relation to another instance when the Defendant made a serious allegation which he withdrew at the hearing, I do not consider the Defendant's withdrawal of the allegation of misfeasance in public office (at [70]) to render his making of the allegation any less vexatious.

F: Perry Defamation Proceedings

In December 2007, Ms Perry sent a letter from the office of the NSW Premier in response to letters from the Defendant complaining about certain conduct of the NSW Police Force and about certain legal proceedings.

On 9 January 2009, the Defendant commenced proceedings against Ms Perry alleging conspiracy and defamation in the letter. The Defendant amended his statement of claim on 5 January 2009, and again on 15 May 2009. He served further proposed amendments to his statement of claim on 16 May 2009, 16 November 2009 and twice on 19 November 2009.

On 22 May 2009, Ms Perry filed a notice of motion seeking to have the Defendant's statement of claim struck out.

Ms Perry's notice of motion for dismissal of the proceedings was adjourned on 13 July 2009 and 10 August 2009 on the Defendant's application. It was adjourned until 16 November 2009. The Defendant applied for it to be adjourned again on that day but his application was refused by McCallum J, before whom the motion was listed.

The Defendant asked McCallum J to disqualify herself on the grounds of actual and apprehended bias. The Defendant asserted that McCallum J was a junior judge and therefore "weak", and that her Honour knew and perceived herself to be so. The Defendant submitted that McCallum J could not consider his claim without admitting error in an earlier decision, and that to admit error was to "self-destruct" and declare herself unfit to remain a member of the Court. McCallum J refused to disqualify herself. McCallum J delivered judgment on 19 November 2009 ( Chan v Perry [2009] NSWSC 1278).

By judgment delivered on 27 November 2009, McCallum J dismissed the Defendant's claim against Ms Perry on the basis that the Defendant's pleadings and draft pleadings disclosed no reasonable cause of action ( Chan v Perry [2009] NSWSC 1293).

The Plaintiff submitted that the application to McCallum J to disqualify herself involved making a very serious allegation about a judicial officer without any apparent basis. Because of the expanded definition of "proceedings" in s 4 of the Act, the application that the judge disqualify herself was a proceedings. I find that the application for disqualification was vexatious since it was made without reasonable ground (s 6(c)) and was conducted so as to harass and annoy (s 6(d)).

I accept the Plaintiff's submission that the Perry Defamation Proceedings are yet another set of proceedings where both the institution and the conduct were vexatious. There was no reasonable ground for their institution or for them to be pursued. McCallum J's reasons for decision set out the allegations of conspiracy as they appeared in the pleading. They include the allegation that Ms Perry has conspired with others with the sole or dominant purpose of injuring the Defendant by deliberately corrupting Government records. I respectfully agree with McCallum J's finding that the pleading fails to identify any facts, matters or circumstances capable of establishing the existence of any agreement, or from which an intention to injure the Defendant could reasonably be inferred.

In my view, the Perry Defamation Proceedings are vexatious within the meaning of s 6(c) and s 6(d) of the Act, the latter because they were conducted in a way so as to harm and annoy and cause detriment and delay to Ms Perry and also to harm and annoy those, including the former Attorney General who were named as parties to the alleged conspiracy.

G: Police Privacy Proceedings

In October 2009, the Defendant wrote to the NSW Police Force alleging breaches of the Privacy and Personal Information Protection Act 1998 (NSW) ("the Privacy Act") in connection with the entry of information in the Police COPS record system. The NSW Police Force conducted an internal review of the complaint.

On 30 December 2009, the Defendant applied to the ADT for review of the NSW Police Force's decision in respect of the Defendant's complaint.

On 2 March 2010, the Defendant was ordered to file his written submissions by 23 March 2010. The Defendant did not file his written submissions, but filed an application for an adjournment or stay until certain documents were provided to him. On 27 April 2010, the ADT refused the Defendant's application for a stay. The Tribunal Member also refused an application by the Defendant to stand down.

The Defendant failed to comply with further directions. On 24 May 2010, the NSW Police Force sought to re-list the matter to seek that the matter be struck out for want of prosecution.

The matter came before the ADT on 10 June 2010. The Defendant did not appear and the Tribunal Member adjourned the proceedings to 13 July 2010.

On 13 July 2010, the ADT directed the parties to file their material in respect of the NSW Police Force's application for summary dismissal. The Defendant did not file any material in compliance with those directions.

On 21 October 2010, the ADT considered the application of the NSW Police Force on the papers. The Defendant's claim was dismissed for want of prosecution.

At the hearing of the Plaintiff's application for a vexatious proceedings order, the Plaintiff submitted that s 27 of the Privacy Act excluded the NSW Police Force from the information protection principles. The ADT, at [25] said, relevantly, as follows:

"I agree with the submissions made on behalf of the Respondent in regard to the application for dismissal. I agree with the Respondent that the proceedings are misconceived and lacking in substance. It follows from section 27 of the Privacy Act that the Respondent was not required to comply with the information protection principles in respect of the COPS entry. Therefore there could not have been a breach of the Privacy Act by the Respondent."

The Plaintiff submitted, on this basis, that the application to the ADT was vexatious in that there were no reasonable grounds for the application. The Plaintiff also submitted that the Defendant's conduct of the proceedings - being his failure to file written submissions, his failure to appear and his failure to file any material in respect of the application for summary dismissal - was vexatious, in that the proceedings were conducted in a way so as to cause delay and detriment to the parties and to the administration of justice since non-compliance with directions occasions a waste of resources.

I accept the Plaintiff's submissions as outlined above. I find that the proceedings were vexatious since they were instituted and pursued in a way so as to cause delay and detriment to the parties and the latter to the administration of justice.

H: LETS Proceedings

On 17 May 2010, the Defendant commenced proceedings in the Federal Court for preliminary discovery against Mr Harris, an employee of Catholic Care Sydney, which operates the Local Employment Training Solutions (LETS) program. On the same day, the Defendant filed a statement of claim alleging that the report prepared by LETS and provided to Centrelink contained fraudulent and defamatory allegations and that those allegations were part of a conspiracy to injure the Defendant.

The Defendant filed the following notices of motion in those proceedings:

a. on 9 June 2010, seeking leave to issue subpoenas against unspecified persons, leave to file and serve interrogatories, orders restraining Mr Harris from publishing material that might affect the Defendant's rights to have a fair hearing, and a declaration that Mr Harris might be in contempt of Court if he attempted to interfere with the conduct of the proceedings by attempting to contact the Defendant or demanding that the Defendant meet with him;

b. on 10 June 2010, seeking orders that he be allowed to photocopy all documents in the court file, that Corrs Chambers Westgarth be restrained from acting for Mr Harris, and that Corrs Chambers Westgarth be restrained from accessing the court file pending final determination of the Defendant's application for injunctive relief;

c. on 17 June 2010, seeking that Cowdroy J not hear the proceedings and that Corrs Chambers Westgarth be restrained from communicating any information or documents to any person other than Mr Harris;

d. on 11 August 2010, the nature of which is not disclosed by the current evidence; and

e. on 14 September 2010, seeking to vary orders made by Cowdroy J on 24 August 2010 for the management of the proceedings, seeking a declaration that the Defendant was not liable for the costs of certain entities, and seeking copies of transcripts.

On 12 October 2010, Cowdroy J declined to disqualify himself, dismissed the Defendant's fifth notice of motion and refused to give the Defendant leave to issue subpoenas ( Chan v Harris [2010] FCA 1099).

The basis for the application for disqualification appears from the reasons for decision. The Court identified 19 separate points made by the Defendant in his oral submissions. Cowdroy J noted, at [17]:

"Mr Chan expressly disavowed any suggestion of actual bias on the part of the Court, or of any apprehended bias on the part of the Court. It is apparent that the basis of the application for my disqualification is Mr Chan's belief that the listing of the current matter before the same judge who made a determination in NSD426/2009 [a separate application for preliminary discovery] is the result of a conspiracy by persons unknown."

Cowdroy J noted further, at [12], that "Mr Chan claimed that, whilst believing in my integrity and impartiality, I must not sit in NSD538/2010 because I had presided over NSD426/2009."

I do not propose to set out the 19 separate points identified by Cowdroy J. It is sufficient, for the purposes of the present proceedings, to note that the Defendant made allegations of incompetence against Cowdroy J and allegations of corruption and conspiracy to injure him by persons, most of whom were not identified. Cowdroy J also records that the Defendant, in support of his application for disqualification, brought to the Court's attention a book which recounted the assassination attempt on the life of Giovanni Falcone. The Defendant claimed that such an event showed that those conspiring against him could track his movements. He also relied on press clippings on various topics including drug trafficking, the Vatican, abuse in the secret service, none of which had any discernible relevance to the application for disqualification.

On 18 October 2010, the Defendant attempted to file a notice of appeal from Cowdroy J's decision, which was rejected by the registry, because the Defendant needed leave to appeal. On 1 November 2010, the Defendant filed a notice of motion seeking a declaration that s 24(1A) of the Federal Court of Australia Act 1976 (Cth) is unconstitutional, an order staying the proceedings before Cowdroy J and leave to amend his purported appeal. On 2 November 2010, Cowdroy J refused to stay the proceedings before him pending the proposed appeal. On 12 November 2010, Katzmann J gave the Defendant leave to amend his notice of motion for an appeal so that the first prayer sought a declaration that s 24(1A) of the Federal Court of Australia Act as invalid or, in the alternative, leave to appeal from Cowdroy J's judgment. Katzmann J also refused leave to issue subpoenas in the appeal proceedings.

On 15 December 2010, Cowdroy J dismissed the Defendant's application for preliminary discovery and all outstanding notices of motion ( Chan v Harris (No 2) [2010] FCA 1393) and made the following observations:

a. the Defendant's failure to support his application for preliminary discovery by affidavit was fatal to the application;

b. the Defendant had taken the Court to no evidence that he had suffered any actionable wrong;

c. the Defendant made allegations that three solicitors had breached the Solicitors' Rules, although the Defendant adduced no evidence to support those allegations. Cowdroy described that conduct as scandalous and tantamount to an abuse of the Court's process; and

d. the Defendant's application should be dismissed for want of prosecution. The Defendant's conduct demonstrated an inability or unwillingness to co-operate with the Court and with the respondent.

On 17 December 2010, in the Defendant's appeal proceedings, Katzmann J ordered the Defendant to file and serve an affidavit attaching grounds of appeal, including any grounds in respect of Cowdroy's decision of 15 December 2010 ( Chan v Harris [2010] FCA 1428).

On 9 February 2011, the Defendant's outstanding motions were fixed for hearing. The Defendant challenged the validity of Corrs Chambers Westgarth's retainer. Katzmann J held that there was no proper basis for doubting the validity of the firm's notice of appearance.

The Defendant failed to address all matters in oral argument. Katzmann J gave him an opportunity to file any further written submissions.

On 10 February 2011, the Defendant attempted unsuccessfully to file a notice of motion seeking a direction that the proceeding be referred to the Full Court.

On 16 February 2011, the Defendant filed submissions that he was going to seek a direction from the Chief Justice to hold a public examination into the integrity of Katzmann J's conduct, and saying that he suspected Katzmann J was "likely to be guilty of perverting the course of justice in one way or another in this case".

On 24 February 2011, Katzmann J refused the Defendant's application and dismissed his notices of motion ( Chan v Harris (No 2) [2011] FCA 143).

The Defendant's outstanding notices of motion were listed for hearing on 10 March 2011. On that day, he made three unsuccessful sequential applications for an adjournment, which took the entire day. Katzmann J dispensed with the requirement for an oral hearing and directed that he file any further written submissions.

By reasons for judgment delivered on 11 April 2011, Katzmann J dismissed the notices of motion filed on 1 and 24 November 2010 respectively and dismissed the appeal as incompetent ( Chan v Harris [2011] FCA 341). Katzmann J observed, at [20], that the Defendant had filed five sets of submissions in the proceedings, none of which canvassed the issues going to the heart of the case, namely whether s 24(1A) was unconstitutional or whether, if it was, leave to appeal should be granted.

In the meantime, the Defendant had commenced new proceedings by filing a separate notice of motion on 1 April 2011 seeking an order for leave to appeal against Cowdroy J's judgment. On 1 May 2011, Rares J directed that written submissions be provided by 13 May 2011 as to the basis on which the Defendant sought the orders in the notice of motion. The Defendant failed to file any submissions.

Nor did he appear on 19 May 2011, being the date fixed for the hearing of the motion. The matter was called at 2.15 pm (being the time fixed for hearing) and then again at 2.40 pm. On neither occasion did the Defendant appear. Rares J then proceeded to deliver judgment. After Rares J had begun delivering reasons for decision, the Registry caused to be delivered to the Court a facsimile transmitted at 2.34 pm that day in which the Defendant sought an adjournment for medical reasons. The so-called medical certificate is reproduced in the reasons for decision.

Rares J said, at [12]-[13]:

"As is evident, the "certificate" is not a medical certificate at all. It is vacuous. It does not state any opinion or any medical condition. It does not give any indication as to what any unfitness of Mr Chan is.

In my opinion, Mr Chan's use of the document is an abuse of the process of the Court. The supposed submission is an attempt to impugn, without the slightest basis, officers of the Registry who have done nothing to warrant his unfounded allegations."

At [15], Rares J said that the proceedings amount to a "plain abuse of process of the Court", a statement with which I respectfully agree.

The Plaintiff submitted that the proceedings as a whole were vexatious in their institution and in their conduct. The Defendant's primary claims included serious allegations such as fraud and conspiracy to injure the Defendant.

The Plaintiff also relied on the notices of motion before Cowdroy J as vexatious proceedings (which were themselves proceedings within the meaning of the Act), all of which were dismissed.

I am persuaded by the Plaintiff's submissions and a consideration of the reasons for judgment referred to above that the proceedings as a whole, including the application for leave to appeal, and the notices of motion specifically referred to, were vexatious. They were made without reasonable ground and they were conducted in a way so as to harass and annoy. The Defendant made no attempt to comply with the rules and in particular to file a supporting affidavit as required by O 15A r 9(3) of the Federal Court Rules, notwithstanding that he had been warned on multiple occasions of the requirements of the rules. He failed to provide any evidence in support of his claims.

I also rely on the circumstance that the Defendant made very serious allegations of misconduct against solicitors in his notice of motion filed on 11 August 2010 without adducing a shred of evidence to substantiate them. He also made very serious allegations against Katzmann J. Because of the context in which such statements were made (in open court or in submissions filed with the Court), none of the persons against whom such allegations were made had any personal rights of redress.

I take into account, and respectfully agree with Cowdroy J's conclusion that "the making of such allegations in the absence of any evidence is scandalous and is tantamount to an abuse of the Court's process" ( Chan v Harris (No. 2) [2010] FCA 1393, at [68]). I also take into account the statement to similar effect by Rares J which is referred to above.

I also find that in so far as the motion filed on 11 August 2010 involved the making of allegations against the solicitors it was a vexatious proceedings within the meaning of s 6(a), (c) and (d).

The Plaintiff submitted that the application that Cowdroy J disqualify himself was vexatious on the following grounds:

a. it was made without reasonable grounds;

b. it was an abuse of process because it contained serious allegations against a judicial officer which were lacking in foundation; and

c. it was conducted in a way so as to harass, annoy and cause delay and detriment.

I accept the Plaintiff's submissions for the reasons for which he contended, and find that the application for disqualification was a vexatious proceedings. The reliance on the book containing a description of the assassination attempt on Mr Falcone is perhaps the starkest, but not the only, indication of the extent to which the proceedings were conducted so as to harass and annoy and cause detriment to the orderly conduct of proceedings. Other salient examples can be found in the unsubstantiated and unparticularised allegations of conspiracy and corruption.

The Plaintiff submitted that the Defendant's conduct of the appeal proceedings before Katzmann J was even more serious. He made several misconceived attempts to appeal Cowdroy J's decision, and when he was dissatisfied with his oral hearing before Katzmann J, he sought to have the proceeding referred to the Full Court and called for a public examination on the asserted basis that her Honour was likely to be guilty of perverting the course of justice.

I accept the Plaintiff's submissions. I find, for the reasons propounded by the Plaintiff, that the appeal proceedings were also vexatious within s 6(a), (c) and (d).

I: Court Fee Schedule Proceedings

On 8 February 2010, the Defendant filed a summons in the High Court seeking a declaration that Schedule 1 of the Civil Procedure Regulation 2005 (NSW), which imposes fees for taking steps in this Court, is invalid.

The Defendant failed to file a statement of claim within the time required by the High Court Rules 2004 (Cth).

On 10 May 2010, Heydon J remitted the Defendant's claim to the Federal Court ( Chan v State of New South Wales [2010] HCATrans 119).

On 17 June 2010, Perram J ordered the Defendant to file and serve a statement of claim by 15 July 2010.

On 30 July 2010, Perram J ordered the Defendant to file and serve a statement of claim within seven days.

On 6 August 2010, Perram J ordered that if the Defendant did not file and serve a statement of claim by 30 August 2010, the proceedings be dismissed for want of prosecution.

On 30 August 2010, the Defendant filed a document purporting to be a statement of claim. It did not set out material facts or grounds for the substantive relief sought by the Defendant, but rather asserted that most of the delays were not the Defendant's fault, that some of the delays were "medical in nature" and others were "probably the result of a conspiracy" and that the Defendant needed more time to complete and file his statement of claim.

On 25 March 2011, Perram J held that the proceedings had been dismissed on 30 August 2010, by reason of the self-executing order made on 6 August 2010 ( Chan v NSW [2011] FCA 287).

The Plaintiff submitted that the Defendant's institution of the proceedings, followed by a persistent failure to file any document setting out the basis for the relief he sought, should be characterised as vexatious. In light of the evidence surrounding the Court Fee Schedule Proceedings, I find that these proceedings were vexatious because they were made without reasonable ground (s 6(c)) and they were conducted in such a way as to harass and annoy (s 6(d)).

J. Further proceedings by the Defendant against TAFE

The last judgment concerning the Defendant in evidence is one given by Fullerton J on 30 June 2011. TAFE had applied to have the pleading struck out and the proceedings dismissed. The motion was listed for hearing on 30 June 2011. Although it was proved that he had been served, the Defendant did not appear.

It is apparent from her Honour's reasons that the original proceedings contained allegations that TAFE had unlawfully sought to obtain an order for his examination, once it had registered judgment against him in the Local Court. The Defendant alleged that the examination order was made "irregularly, improperly or unlawfully" and alleged that the Magistrate had conspired with unidentified individuals to refuse him the relief he sought. Fullerton J said that the "wild and unsubstantiated allegations ... render the proceedings an abuse of process". Her Honour also referred to the allegations that the State of New South Wales, through members of the government and related agencies, has acted as a co-conspirator with a criminal organization involved in the distribution of drugs in his neighbourhood to injure and defame him. Her Honour said that, if an application had been made to strike out to the amended statement of claim as an abuse of process, it would have been granted.

I have taken into account the views expressed by Fullerton J, and I have come to the conclusion that these proceedings are also vexatious. They are an abuse of process (s 6(a)), they were instituted without reasonable ground (s 6(c)) and they were conducted in a way so as to cause delay (s 6(d)).

Whether the Defendant "frequently instituted or conducted vexatious proceedings"

The Plaintiff submitted that, taken together, the proceedings relied upon can be described as frequent. I accept the Plaintiff's submission. The helpful chronology which the Plaintiff provided indicates that every year from 2004, the Defendant has instituted and conducted vexatious proceedings. In the last three years, in particular, the frequency of the institution or conduct of vexatious proceedings appears to have increased.

For these reasons I am satisfied that the Defendant has frequently instituted and conducted vexatious proceedings in Australia and, accordingly, I have the power to make a vexatious proceedings order against him. I note that I may not make such an order without hearing the Defendant, or giving the Defendant an opportunity to be heard. I consider that the matters referred to above, taken together with the matters I referred to in the ex tempore judgment I delivered on 18 October 2011, have the effect that the Defendant was given an opportunity to be heard. That he chose, in the main, not to avail himself of that opportunity, does not deprive the Court of the power to make a vexatious proceedings order.

Appropriate orders

The Plaintiff submitted that the Court should exercise its discretion in favour of making a vexatious proceedings order on the following grounds:

a. The Defendant has brought a large number of vexatious proceedings against a variety of individuals and institutions. The diversity of claims - all hopeless - are indicative of an inclination to commence proceedings whenever something occurs that does not suit the Defendant.

b. The Defendant's tendency to sue individuals personally, as well as the institutions they represent, means that the consequences of his vexatious proceedings have been particularly serious. Personal targets have included Ms Louey, Mr Sellwood and Ms Calvert of the TAFE Commission, Ms Sato of the Crown Solicitor's Office, Ms Reynolds of the Department of Public Housing, Ms Perry of the (former) NSW Premier's Office and Mr Harris, Catholic Care Sydney.

c. The Defendant's conduct of the various proceedings that he has brought indicates a disregard for the procedures of the court and for the importance of progressing matters swiftly and constructively. It does not matter whether this disregard is deliberate or innocent. There are also judicial comments indicating that the Defendant's behaviour both in Court and outside Court is productive of delay.

d. In several of the proceedings described above, the Defendant has shown an inability or refusal to accept finality in litigation. He has repeatedly brought applications to re-litigate matters, or to attempt to prosecute the same complaint in slightly different forms.

e. The Defendant has asserted on a number of occasions that there is a wide-ranging conspiracy to injure him. Courts have repeatedly held that the Defendant has pointed to no basis for alleging this conspiracy. The Defendant has also accused judges of being actually biased or possibly involved in the conspiracy, again without any disclosed basis. If the Defendant honestly believes these assertions, then he is paranoid or delusional or both. If the Defendant does not honestly believe that this conspiracy exists, then he is willing to make mischievous and scandalous accusations without a proper basis in order to advance his own interests. Either way, he is likely to commence further vexatious proceedings in the future, and the order should be made for the protection of the public and the Court.

f. If an order is made, it will not shut the Defendant out from enforcing any legitimate claims that he has a proper basis for making. If the Defendant has such legitimate claims, he will be able to obtain the leave of the Court to commence proceedings.

The evidence establishes that the Defendant has brought many other proceedings in addition to those about which evidence has been adduced by way of judgment or orders.

In addition to seeking an order prohibiting the Defendant from instituting proceedings in New South Wales, the Plaintiff seeks an order staying all existing proceedings instituted by the Defendant (subject to leave of the Court being granted).

The Plaintiff drew my attention to the decision of the Western Australian Supreme Court in Attorney General v Michael [2005] WASC 203 at [148], where Le Miere J said:

"It is not appropriate for the court to make a blanket order staying any proceedings that have been instituted by a person. The court should consider each existing proceeding and whether or not that proceeding should be stayed."

The Plaintiff has served evidence of all the proceedings that the Defendant has on foot in New South Wales. In the letter that accompanied service of the summons and supporting evidence (dated 6 April 2011), the Plaintiff asked the Defendant to advise whether he had any current and ongoing proceedings. The Defendant has not responded to this request.

The Plaintiff's primary submission is that these steps are sufficient, in the context of the present case, to make out a prima facie case for a stay of all existing proceedings instituted by the Defendant - the Plaintiff's evidence about proceedings in New South Wales, combined with the Defendant's failure to respond to the Plaintiff's request in the letter of 6 April 2011, is enough to distinguish this case from Attorney General v Michael .

The Plaintiff submitted, in the alternative that even if the Court considers the individual proceedings that are presently on foot, they should all be stayed.

The Plaintiff pointed to four proceedings that have been commenced by the Defendant in this Court that were still active at the time the Plaintiff commenced these proceedings and made the following submissions in respect of them:

a. Chan v TAFE Commission , file no 2011/86591. These proceedings were commenced on 17 March 2011 and were dismissed by Fullerton J on 30 June 2011.

b. Chan v Sellwood , file no 2008/289618. These proceedings have remained on foot because Davies J declined to strike out part of the Plaintiff's defamation claim on 9 December 2009 ( Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335). However, Davies J stressed at [73] that any proposed pleading should be scrutinised by a judge in the Defamation List before leave to file it was granted. The evidence does not reveal whether the Defendant has taken the proceedings any further. The Plaintiff submits that the proceedings should be stayed, subject to leave being granted to allow the Defendant to proceed. If the Defendant has taken no further steps since Davies J's decision, then the proceedings should be stayed to give Mr Sellwood and Ms Calvert a degree of finality. If further steps have been taken, then the stay is appropriate to ensure that they are reviewed by a judge, in considering a grant of leave, before Mr Sellwood and Ms Calvert are put to additional cost.

c. Chan v Frail , file no 2008/289715. The Court should infer that these are the proceedings referred to by Davies J in his judgment on 9 December 2009 at [8]. His Honour noted there that the statement of claim had never been served and was by that time stale for service. The Court should stay the proceedings on that basis.

d. Chan v Administrative Decision Tribunal , file no 2010/144393. There is no evidence about this proceeding, but it is difficult to imagine a basis that the Defendant would have for suing the ADT. The Plaintiff informed me from the bar table that these proceedings have been dismissed.

In the Federal Court, there was one proceeding that was on foot at the time the Plaintiff's action was commenced, Chan v Harris , file no NSD1372/2010. This was the appellate proceeding before Katzmann J. On 11 April 2011, Katzmann J dismissed the Plaintiff's applications: Chan v Harris (No 3) [2011] FCA 341.

I am satisfied that it is appropriate that vexatious proceedings orders be made.

The reasons for my decision are substantially those for which the Plaintiff contended that are set out above. The right to bring proceedings in a court or tribunal is a right that ought not be abused. The Defendant has repeatedly, as referred to above, used the processes of courts and tribunals to assert rights and grievances for which he has no reasonable ground. He has abused the processes of the Court by re-litigating issues which he has lost, and selected new defendants against whom to vent his complaints. He has also made several damaging allegations of reprehensible conduct against individuals, including judicial officers, who have no practical right of redress. He has taken up the time of judges, court staff, litigants and solicitors in a wholly unproductive way. He has sought adjournments on unsubstantiated grounds, in circumstances where it appears that he is toying with the Court, albeit that he may not intend to do so.

As Mr Emmett submitted at the outset, there is insufficient basis for concluding that the Defendant is cognizant of the consequences of his actions, or that he intends them. I draw no inference as to that matter. Nonetheless the lack of any evidence of insight into the behaviour that constitutes the abuse of process does not give me any confidence that the Defendant will not persist in bringing vexatious proceedings in the future, as I have found he has done in the past.

I accept Mr Emmett's primary submission that it is appropriate for a blanket order staying all proceedings in New South Wales already instituted by the Defendant. I consider that the Plaintiff has been sufficiently rigorous in its examination of what proceedings are currently on foot. The Defendant has not responded to the request that he identify any such proceedings. Nor has the Defendant made any submissions as to why particular proceedings which he has instituted ought not be stayed. He would, effectively, be profiting from his own breach, were this consideration to narrow the ambit of the order made against him to particular proceedings.

Accordingly, for the foregoing reasons, I make the following orders:

a. 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.

b. 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.

c. That the Defendant pay the Plaintiff's costs.

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Decision last updated: 04 November 2011

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