Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 18)

[2016] NSWSC 775

Supreme Court

New South Wales

Medium Neutral Citation:	Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 18) [2016] NSWSC 775
Hearing dates:	10 June 2016
Date of orders:	10 June 2016
Decision date:	10 June 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Application for further adjournment refused.
Catchwords:	CONTEMPT OF COURT – alleged contempt before Local Court proceedings – vexatious litigant – application for a further adjournment – refused
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Jones v Dunkel (1959) 101 CLR 298 Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 16) [2015] NSWSC 1200 Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 17) [2015] NSWSC 1252
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: This judgment concerns yet another adjournment application made by Mr Chan. It comes forward in circumstances where Mr Chan had been given a further limited opportunity to conclude giving his evidence in May 2014. During the course of giving that evidence, the question of his fitness was raised. By consent, that question was pursued and dealt with in Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 16) [2015] NSWSC 1200 and Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 17) [2015] NSWSC 1252.

2. Mr Chan was found fit to be tried. In November 2015, over Mr Chan's objections, the matter was listed for further hearing on 14 and 15 June 2016 for Mr Chan to complete his evidence, and on 17 June for final submissions to be received.

3. Mr Chan appears unrepresented despite two earlier referrals for pro bono legal assistance. In November 2015, Mr Chan said that he had filed an application under the Vexatious Proceedings Act2008 (NSW) for leave to appeal earlier decisions given in these proceedings, but had not filed the supporting affidavit required by s 14 of that Act in those proceedings because, he said, he had a serious issue with the obligation there imposed upon him to disclose relevant facts, including those adverse to his application. In those circumstances, it was necessary for the hearing to proceed.

4. I thus directed that Mr Chan notify the Prothonotary, in writing, on or before 14 May 2016 as to any orders outstanding in a motion he had filed on 1 October 2014 which he wished to press at the June hearing, and that he also notify the Prothonotary of any documents he wished to tender at that hearing. It appears that he has not complied with those orders.

5. On 6 July 2015, I had ordered that any further applications by Mr Chan must be made in writing and that prior notice must be given of them to the Prothonotary's counsel Ms Baker and the Court. On 9 June, the Prothonotary approached with a request that the matter be re-listed because Mr Chan had given advice that he wished to make another adjournment application. Today, his adjournment application had not been reduced to writing, but his application was entertained, the Prothonotary supporting that course.

6. To date the proceedings have had a very considerable procedural history, with repeated applications by Mr Chan for adjournments, some of which were granted and some of which were not. In Prothonotary of Supreme Court New South Wales v Chan (No 17), the hearing fixed for December 2015 was adjourned so that Mr Chan's application for leave to appeal the conclusion reached as to his fitness to be tried, could be pursued. The further hearing was fixed when Mr Chan did not pursue that application in accordance with the requirements of the Vexatious Proceedings Act.

7. On this occasion, the Prothonotary opposed the further adjournment submitting that no basis for such an adjournment Mr Chan sought, had been established.

8. In November 2015, I informed Mr Chan that he had to prepare himself to conclude giving his evidence in the two further days which I then fixed in June 2016, and to make his submissions on 17 June following the break that he then sought. I also said any other application which he made in due course would be entertained and dealt with, but that did not relieve him of the obligation to comply with the directions I had given, or the earlier orders I have made in the proceedings.

9. On this application, Mr Chan's case was that he needed an adjournment for a number of reasons. Firstly, he wished to further cross-examine Dr Allnutt, who gave evidence at the fitness hearing.

10. Secondly, that he had obtained documents in April 2016 as a result of a freedom of information application, which had led to a further application made on 9 June, a copy of which he provided to the Prothonotary at the hearing and which was tendered.

11. Thirdly, the need to ask Dr Allnutt further questions in order to avoid serious impact on the outcome of the proceedings, in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298.

12. Fourthly, that he would be deprived of a chance of acquittal if not permitted to call evidence from doctors in respect of whom he had made the freedom of information request on 9 June.

13. Fifthly, illness; Mr Chan said that he had been suffering from an illness from which he was recovering, but which had deprived him of the opportunity of complying with the orders made in November, requiring him to give the Prothonotary various information. In support of that submission he relied on a medical certificate of a Dr Zhang of 9 June 2016 which indicated that he had been suffering “from a chronic medical condition which had recently worsened, and as a result, will not be able to complete his assigment(sic) on time”.

14. Sixthly, that he mistook the hearing date. Seventhly, that he increasingly suffers ill health in winter. Eighthly, that the hearing would be impacted by the practical consequences of renovation work being undertaken at St James Station which would affect his physical ability to transport necessary materials to Court, and lastly, his general inability to prepare himself for the hearing.

15. Mr Chan has made applications for adjournment on more than one occasion because he had misunderstood or misremembered a direction or order given, or a hearing date fixed. That does not provide a proper basis for yet another adjournment, nor does his continuing desire to reopen the question of his fitness. He has not as yet, on what he has advanced, any evidence which would support the view that some different conclusion would be reached on that question, if a further application as to his fitness was forthcoming.

16. That Mr Chan has further considered questions which he should have asked Dr Allnutt in cross-examination at the fitness hearing, is also not a basis on which the conclusions reached on that question can now be revisited. Nor is what Mr Chan has submitted as to the illness from which he has been suffering, or the certificate he relied on, a basis on which another adjournment could be granted. That certificate, in fact, says nothing about these proceedings, or Mr Chan's ability to participate in them.

17. Mr Chan has also repeatedly relied on the difficulties he experiences as an unrepresented litigant with limited financial means to advance his case. Those difficulties have been accepted in the past and are accepted now. They have been given appropriate consideration. That they should now provide another basis for an adjournment of the hearing cannot be accepted.

18. These proceedings must and will be brought to an end. Mr Chan is being given an opportunity to complete his evidence. It is a matter for him whether he avails himself of that opportunity.

19. Accordingly, the further adjournment application is refused. The hearing will proceed at 10am on 14 June when Mr Chan will have, as I have said, the opportunity to conclude his evidence.

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Decision last updated: 15 June 2016