Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 14)

[2015] NSWSC 1023

Supreme Court

New South Wales

Medium Neutral Citation:	Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 14) [2015] NSWSC 1023
Hearing dates:	27 July 2015
Date of orders:	27 July 2015
Decision date:	27 July 2015
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Application for the notice of motion to be listed for hearing is, at the moment, refused.  The motion will be listed in due course, if Mr Chan is found to be fit to be tried, in which event he has leave to press it again.
Catchwords:	CONTEMPT OF COURT – alleged contempt before Local Court proceedings – vexatious litigant – fitness hearing – notice of motion dated October 2014 – application for motion to be listed for hearing – refused
Cases Cited:	Prothonotary v Chan (Supreme Court (NSW), Beech-Jones J, 22 June 2015, unrep) Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 11) [2014] NSWSC 1672 Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 13) [2015] NSWSC 917
Category:	Procedural and other rulings
Parties:	Prothonotary of the Supreme Court of New South Wales (Plaintiff) Yau Hang Chan (Defendant)
Representation:	Counsel: Ms B Baker (Plaintiff)   Solicitors: IV Knight, Crown Solicitor’s Office (Plaintiff) Mr Chan (self-represented)
File Number(s):	2012/350266
Publication restriction:	None

EX TEMPORE Judgment

1. HER HONOUR: On 6 July I made directions in this matter at the conclusion of the fitness hearing, requiring Mr Chan to file and serve written submissions on the question of his fitness by 31 July and for the Prothonotary to file and serve submissions responding, by 14 August, indicating that the decision would then be reserved. Today, Mr Chan has appeared seeking that those directions be varied in a number of ways.

2. Firstly, he seeks to press orders 1, 2, 3, 4, 5 and 9 of a notice of motion which he filed in October 2014. He seeks to have directions given for the hearing of that motion. Pending the hearing of that motion he does not wish to file and serve his submissions on the fitness question, and he also seeks, he says, to pursue an opportunity for him to be examined by another psychiatrist, pending which he says he ought not to be required to file and serve his written submissions on the question of fitness.

3. Now the last application is one which Mr Chan has pressed before today. It has been refused, for reasons which were dealt with in a decision which I gave on 13 July, where I indicated at [67] that Mr Chan was not precluded from seeking further psychiatric assessment and that if a written report is forthcoming from a psychiatrist he appoints, which supports the view that he is not fit to be tried, he is not precluded from making a further written application, of which he has to give prior notice to the Prothonotary, for his fitness to be further considered (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 13) [2015] NSWSC 917).

4. Nothing that has fallen from Mr Chan today has altered that situation. I do not propose, accordingly, to alter the directions given on 6 July in order for him to pursue a further psychiatrist's report. Nothing indicates that he has taken any steps in that regard thus far and there is simply no proper basis on which there can, in those circumstances, be any departure from the directions given on 6 July.

5. Nor do I propose to vary the directions given on 6 July so that Mr Chan can pursue his motion. As was submitted for the Prothonotary, if it is concluded that he is not fit to be tried, the matters which are raised by the motion will not have to be decided, because the case will not proceed.

6. So for those two reasons I do not propose to alter the directions which were given on 6 July. They require Mr Chan to file and serve his written submissions on the question of his fitness by 31 July.

7. As to the notice of motion, it is not presently supported, as it ought to be, by an affidavit. There are a number of orders there sought. The first is a declaration that the motion is filed without prejudice to Mr Chan. The second, an order that the financial hardship and medical issues, which he currently experiences, be given proper consideration before the Court decides any hearing date. At the moment there is no pending hearing date and quite clearly, that order does not raise any present issue.

8. The next order is an order that Mr Chan be given leave to appeal out of time from a decision given by Justice Adamson in proceedings in which Mr Chan was declared vexatious. That is an application of the kind which Mr Chan has made and pressed earlier in the proceedings and has been dealt with in various of the decisions given (see, for example, Prothonotary v Chan (Supreme Court (NSW), Beech-Jones J, 22 June 2015, unrep) and Chan (No 13)). It is not a matter in which the Court has got jurisdiction, as I have explained, in these proceedings which are before me, to deal with alleged contempt.

9. The fourth order that is sought is that Mr Chan be given leave to appeal out of time from Court case number 2011/86591. Questions of leave of that kind are not matters which arise and can be dealt with in these proceedings; again, as I have discussed in earlier decisions which have been given.

10. In order number 5 Mr Chan seeks a declaration that the summons which commenced these proceedings is incompetent or otherwise invalidly filed. As far as I recollect it, that is not an application which Mr Chan has as yet pressed. If he wishes to press it, that is a matter for him, of course. It is an application which will be heard and dealt with at the appropriate time, which is not presently.

11. The ninth order which is sought is an order that subpoenas be issued by the Prothonotary to the Commissioner of Police and the Director General of the Department of Health. They, too, are applications which Mr Chan has made earlier in the proceedings and which have been dealt with (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 11) [2014] NSWSC 1672). I am not going to entertain them again.

12. For those reasons, the application that this motion be listed for hearing is, at the moment, refused. The motion will be listed in due course, if Mr Chan is found to be fit to be tried, in which event he has leave to press it again.

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Decision last updated: 28 July 2015