Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 12)
[2015] NSWSC 572
•14 May 2015
Supreme Court
New South Wales
Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 12) [2015] NSWSC 572 Hearing dates: 14 May 2015 Date of orders: 14 May 2015 Decision date: 14 May 2015 Jurisdiction: Common Law Before: Schmidt J Decision: Application refused.
Catchwords: CONTEMPT OF COURT – application to vary directions– directions concerning undertaking given as to costs of a medical examination – examination as to fitness to be tried – no basis for order sought – application refused Category: Procedural and other rulings Parties: Prothonotary of the Supreme Court of New South Wales (Plaintiff)
Yau Hang Chan (Defendant)Representation: Counsel:
Solicitors:
Ms J Caldwell
IV Knight, Crown Solicitor’s Office (Plaintiff)
Mr Chan (self-represented)
File Number(s): 2012/350266 Publication restriction: None
ex tempore Judgment
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HER HONOUR: Mr Chan has approached the Court this morning in order to seek a variation to directions given when the matter was last before the Court on 1 May 2015. Those directions concerned an undertaking which had been given to the Court in relation to the costs involved in Dr Allnut examining Mr Chan for the purpose of an assessment of his fitness to be dealt with in these contempt proceedings.
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The directions given were:
1. The Prothonotary is to write to Mr Chan confirming terms of undertaking given to the Court and what costs it relates to, particularly if it includes Dr Allnut’s costs in giving evidence in these proceedings if he is called.
2. The Prothonotary should also inform Mr Chan of the length of the appointment made with Dr Allnut.
3. Direct Prothonotary to make an appointment for Mr Chan to be examined at 9am on 15 May 2015.
4. List the matter for further mention at 9:30am on 15 June 2015.
5. Tentatively list the fitness hearing for 2 and 3 July – dates to be confirmed at the further mention.
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Mr Chan seeks to have those directions varied by the appointment with Dr Allnut being set aside, the mention on 15 June and the tentative hearing dates in July being vacated, in order that he can pursue a motion not yet filed in the proceedings.
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Mr Chan explained today that what he seeks to do is to amend a motion which he filed on 1 October 2014, which he has not as yet pressed. That motion was referred to when the matter was before the Court on 27 November 2014. At that stage, it had not been served and there was no affidavit in support of the motion.
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In submissions which Mr Chan filed yesterday, but which had not reached the file when the matter came into the list this morning, a copy of which Mr Chan provided at the hearing, Mr Chan explained the circumstances in which he had not yet pursued that motion. Those submissions have been marked MFI 11. Mr Chan does not rely on all those submissions, but has identified paragraphs 1-6 as being relied on. In those paragraphs, amongst other things, Mr Chan explained, again, a belief which he had explained earlier in the proceedings, as to the existence of a conspiracy against him and a belief that I have come under the influence of those conspirators.
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These proceedings concern an allegation of contempt. They were commenced in 2012.
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In May 2014, during the course of the evidence which he was giving, Mr Chan raised the question of his fitness. That has since been pursued with considerable difficulty. At different points in the proceedings Mr Chan has explained his attitude to the question of his fitness being assessed, with which he has not co-operated
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On the last occasion when the matter was before the Court, the directions which Mr Chan now seeks to have varied were given because of the view which I had then reached, that it was necessary for the fitness question to be heard and determined. Mr Chan has had repeated opportunities to take up the opportunity, if he wished, to be psychiatrically examined.
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The directions gave him a final opportunity to avail himself of such an examination by Dr Allnut. Mr Chan had a concern about the cost and whether, if he was found to have been in contempt in due course, he might be ordered to pay those costs. That concern was met by the Prothonotary who gave an undertaking in terms that “the costs of engaging Dr Allnut will not be pursued against Mr Chan”, upon which I informed Mr Chan that the Court would not make a costs order against him in respect of those costs.
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Mr Chan says that he is not satisfied with the terms of that undertaking. He also complains about the unreliability of the transcript of these proceedings, another matter which he has pursued this morning.
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None of the things which Mr Chan has raised today provide a proper basis on which the orders which he seeks can be made. I do not propose to vary the directions given on the last occasion in the way in which he proposes.
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The question of his fitness has got to be determined. Mr Chan has the opportunity to be examined by Mr Dr Allnut if he wishes to pursue it. If he does not, the Court will receive a report from Dr Allnut, which will be based on the material with which he has been provided. Those materials and the steps taken in relation to instructing Dr Allnut, as I understand it, accord with directions earlier given.
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There is certainly no basis on which the orders which Mr Chan seeks could be made, in circumstances where he has not pressed the 1 October motion. He now says he wishes to amend it, but has not provided a document which indicates what amendment he might wish to pursue.
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In all of those circumstances, the application is refused. The matter is adjourned for further mention on 15 June 2015 at 9:30am.
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Decision last updated: 15 May 2015
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