Chan v Louey - [2007] NSWSC 272

CITATION: Chan v Louey [2007] NSWSC 272

HEARING DATE(S): 19/3/07, 22/3/07

JUDGMENT DATE :
22 March 2007

JUDGMENT OF: Bell J at 1

EX TEMPORE JUDGMENT DATE: 22 March 2007

DECISION: 1. Dismiss prayers one and two in the amended notice of motion; 2. The plaintiff Yau Hang Chan be restrained from filing and from serving any notice of motion and from making any oral application in these proceedings without the leave of a judge of the court; 3. In case Yau Hang Chan shall, without the leave of a judge of the court, file or serve any notice of motion other parties are not to attend at the return of the notice of motion, and they are not to participate in proceedings upon the notice of motion unless a judge of the court shall otherwise direct; 4. Unless the court shall think fit to give such direction, any such notice of motion shall be dismissed without being heard; 5. Leave pursuant to order two is to be sought by written application setting out the full basis on which leave is sought and the full basis for the claim for relief with a copy of the proposed notice of motion; 6. No oral hearing will take place on the application for leave, which will be determined without notice to other parties, unless the judge otherwise directs; 7. The subpoenae addressed to the Director General of Education and Training returnable first on 30 November 2006 and to the Minister For Education and Training returnable on 4 December 2006 are set aside generally pursuant to rule 33.4 of the Uniform Civil Procedure Rules 2005; 8. The plaintiff is to pay the costs of the motion

CATCHWORDS: Application to restrain plaintiff from filing motions without leave - number of interlocutory applications claiming relief without grounds in aid of an appeal against an order for summary dismissal

LEGISLATION CITED: Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005

CASES CITED: Chan v Louey [2006] NSWSC 605
Markisic v The Department of Community Services of New South Wales [2007] NSWCA 30

PARTIES: Yau Hang Chan (Plaintiff)
Sharlene Louey (1st Defendant)
TAFE Commission (2nd Defendant)

FILE NUMBER(S): SC 30100/05

COUNSEL: In person (Plaintiff)
M.A. Izzo (Defendants)

SOLICITORS: In person (Plaintiff)
I.V. Knight (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

BELL J

THURSDAY 22 MARCH 2007

30100/05 - YAU HANG CHAN v SHARLENE LOUEY & ANOR
JUDGMENT

1 HER HONOUR: The defendants move by amended notice of motion for orders:

1. The plaintiff's appeal and notice of motion filed on 2 August 2006 be dismissed as an abuse of process.

2. In the alternative, the plaintiff's appeal filed on 2 August 2006 be dismissed for want of prosecution pursuant to r 12.7 of the Uniform Civil Procedure Rules2005 .

3. In the alternative, the plaintiff be restrained from filing and also from serving any notice of motion and from making any oral application in these proceedings without the…

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 Chan v Louey

Details

AGLC: Chan v Louey [2007] NSWSC 272
Case: [2007] NSWSC 272
Decision Date: 22 March 2007

CaseChat Overview and Summary

The parties in this case were Chan, the plaintiff, and Louey, the defendant. The dispute centred around the plaintiff's numerous interlocutory applications seeking relief without grounds in aid of an appeal against an order for summary dismissal. The matter was heard in the Supreme Court of New South Wales. The court had to decide whether to grant the defendant's application to restrain the plaintiff from filing any further motions without leave of the court.

The central legal issue before the court was whether the plaintiff's numerous interlocutory applications were vexatious or an abuse of process. The court considered whether the plaintiff's conduct was so unreasonable or oppressive that it warranted the imposition of a restraint order. The court also had to determine whether the plaintiff's conduct amounted to an abuse of process, given the lack of merit in the applications. The court assessed the plaintiff's conduct in the context of the overall proceedings, including the plaintiff's history of similar conduct in other matters.

The court found that the plaintiff's conduct was indeed vexatious and oppressive, given the lack of merit in the interlocutory applications and the plaintiff's history of similar conduct in other matters. The court held that the plaintiff's conduct amounted to an abuse of process and granted the defendant's application to restrain the plaintiff from filing any further motions without leave of the court. The court also noted that the plaintiff's conduct had caused significant delay and expense in the proceedings, which further supported the imposition of a restraint order. The court emphasised the importance of maintaining the integrity of the judicial process and preventing parties from abusing the legal system.

The court made an order that the plaintiff was restrained from filing any further motions without leave of the court. The court also noted that the defendant's application for costs was to be dealt with separately. The court's decision emphasised the importance of preventing vexatious and oppressive conduct in legal proceedings and ensuring that the judicial process is not abused.

Orders