Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 20)
[2016] NSWSC 855
•23 June 2016
|
New South Wales |
Case Name: | Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 20) |
Medium Neutral Citation: | [2016] NSWSC 855 |
Hearing Date(s): | 3 September 2013, 19 February 2014, 20 February 2014, 21 February 2014, 24 February 2014, 12 May 2014, 13 May 2014, 14 May 2014, 16 May 2014, 20 November 2014, 21 November 2014, 15 December 2014, 18 December 2014, 3 November 2015, 14 June 2016, 15 June 2016 and 17 June 2016 |
Date of Orders: | 23 June 2016 |
Decision Date: | 23 June 2016 |
Jurisdiction: | Common Law |
Before: | Schmidt J |
Decision: | Mr Chan is found guilty of the contempt alleged. |
Catchwords: | CONTEMPT OF COURT – alleged contempt before Local Court – examination order – refusal to obey order to enter witness box to be examined – validity of order – whether defendant suffers mental illness – whether defence of mental illness established – defence not established – contempt of Local Court established |
Legislation Cited: | Legal Profession Act 2004 |
Cases Cited: | Attorney General v Chan [2006] NSWSC 605 |
Category: | Principal judgment |
Parties: | Prothonotary of the Supreme Court of New South Wales (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2012/350266 |
Publication Restriction: | None |
Judgment
By summons filed in November 2012, the Prothonotary sought a declaration that Mr Chan is guilty of contempt of the Local Court, together with consequential orders as to punishment for that contempt and the payment of the costs of the proceedings.
The matter has had a very long procedural history. There have been many adjournments, for a variety of reasons; repeated disqualification applications; two referrals of Mr Chan for pro bono legal assistance; and an assessment as to his fitness to be tried (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 15) [2015] NSWSC 1177). To date, 19 judgments have been published. This judgment deals with the question of whether the Prothonotary has met the onus of establishing, beyond reasonable doubt, Mr Chan’s alleged contempt.
The evidence
The Prothonotary’s case rested on the evidence of Mr Steve Oom, a Legal clerk employed in the Legal Services Unit at the NSW Department of Education and Communities, who had carriage of proceedings which Mr Chan commenced in this Court in 2005 against the Technical and Further Education Commission and one of his teachers, Ms Louey. Mr Chan also gave evidence in his defence.
In the 2005 proceedings Mr Chan had sought various declarations, including as to his right to withdraw from a course in which he was then enrolled at TAFE, without penalty. Those proceedings were dismissed by Malpass Ass J on 26 June 2006 (see Chan v Louey [2006] NSWSC 605). Mr Chan was ordered to pay the costs of those proceedings.
Mr Chan appealed that decision. In March 2007, Bell J, as she then was, dismissed the appeal, restrained Mr Chan from filing further motions in the proceedings without leave of the Court and also ordered him to pay further costs (see Chan v Louey [2007] NSWSC 272). There was no appeal from that decision.
Costs were later assessed, but Mr Chan did not pay them. In December 2009 the TAFE Commission filed a certificate of determination as to the costs in the Local Court, together with a certificate of determination as to the costs of the costs assessment. Under s 368(5) of the Legal Profession Act 2004 (NSW) (now repealed), such certificates were taken to be judgments of the Local Court.
In July 2010, the TAFE Commission pursued payment of its costs against Mr Chan. It served an examination notice upon Mr Chan under Rule 38.1 of the Uniform Civil Procedure Rules 2005 (NSW). He failed to comply with that notice.
In October 2010, the Local Court made an order under Rule 38.3 for examination of Mr Chan, on 27 January 2011. The examination was adjourned to 17 February 2011, after Mr Chan filed a notice of motion seeking an annulment of that order. His motion was later dismissed and he was ordered to submit to the examination in the Local Court on 17 March 2011. The examination was later deferred again.
This followed Mr Chan commencing proceedings in this Court, in February 2011, challenging the validity of the examination order. On 30 June 2011, Fullerton J ordered that his amended statement of claim be struck out pursuant to Rule 19.4 of the UCPR and that the proceedings be dismissed pursuant to Rule 13.4 (see Chan v TAFE Commission & Anor (Supreme Court (NSW), 30 June 2011 unrep). That judgment has not been appealed.
On 18 October 2011 orders were made by Adamson J under the Vexatious Proceedings Act 2008 (NSW), prohibiting Mr Chan from instituting proceedings in New South Wales, without leave of this Court (see Attorney General v Chan [2006] NSWSC 605). That judgment has also not been appealed.
When Mr Chan appeared before Atkinson LCM in the Local Court on 6 December 2011, he sought another adjournment, on the basis that he intended to appeal Fullerton J's decision. After considering the notice of intention to appeal which Mr Chan then produced, her Honour refused the further adjournment. In coming to that conclusion her Honour took into account the fact that Fullerton J’s judgment had not been appealed, as well as the orders Adamson J had made on 18 October 2011 under s 8 of the Vexatious Proceedings Act. Mr Chan has also not appealed Atkinson LCM’s refusal of his adjournment application.
Mr Chan repeatedly then failed to comply with Atkinson LCM’s order that he enter the witness box, in order that the examination could proceed, even after her Honour explained the contempt involved in his refusal. The end result was that Mr Chan was not examined and he was referred to the Prothonotary of this Court, under s 24 of the Local Court Act 2007 (NSW), to be dealt with for his contempt.
Was the examination order a valid order?
On 6 December 2011 Mr Chan was bound by the examination order earlier made by the Local Court and also by the order Atkinson LCM made, that he enter the witness box in order that he could be examined. The Prothonotary’s case is that it is his refusal to comply with Atkinson LCM’s order which constitutes Mr Chan’s contempt.
Mr Chan’s case in final submissions, was essentially threefold. Firstly, that his refusal to comply with her Honour’s order did not involve contempt, because Atkinson LCM had the discretion to adjourn the examination until his appeals were heard and determined. Secondly, that her Honour erred in refusing the adjournment he sought, with the result that he committed no contempt in refusing to comply with the order to enter the witness box, because the examination order was not valid. Thirdly, that even if her Honour was correct, in December 2011, he suffered from a mental condition which precluded him from understanding the wrongness of his actions.
In his final submissions Mr Chan also contended that High Court authority existed which supported his case, that a person was not bound to comply with an invalid court order. He was given leave to provide a reference to the authority on which he relied. No reference has been provided.
Parties are ordinarily bound by orders of a court until they are set aside. In Rumble v Liverpool Plains Shire Council [2015] NSWCA 125, Beazley P observed at [60] – [63]:
“60 It is of central importance to the proper function of the rule of law and the effective administration of justice that orders of the court are, and are treated as, valid until set aside. The court’s power to punish for contempt for failing to obey a court order is the means by which the court’s authority in respect of its orders is maintained. As the High Court stated in Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd [1986] HCA 46; 161 CLR 98, at 107:
“Although the primary purpose in committing a defendant who disobeys an injunction is to enforce the injunction for the benefit of the plaintiff, another purpose is to protect the effective administration of justice by demonstrating that the court’s orders will be enforced.”
61 If a party wishes to dispute the correctness of an order made by the court, it is necessary to seek to have the order set aside, and for this purpose a party must invoke the processes of the court for the purpose of having a determination made as to whether an order was properly made: Papas v Grave at [70]. However, orders of the court must be treated as valid and enforceable until set aside. The rationale for this principle was explained by the plurality in State of NSW v Kable [2013] HCA 26; 87 ALJR 737, at [39], as follows:
“Were this not so, the exercise of judicial power could yield no adjudication of rights and liabilities to which immediate effect could be given. An order made by a superior court of record would have no more than provisional effect until either the time for appeal or review had elapsed or final appeal or review had occurred. Both the individuals affected by the order, and in this case the Executive, would be required to decide whether to obey the order made by a court which required steps to be taken to the detriment of another. The individuals affected by the order, and here the Executive, would have to choose whether to disobey the order (and run the risk of contempt of court or some other coercive process) or incur tortious liability to the person whose rights and liabilities are affected by the order.”
62 See similarly Papas v Grave [2013] NSWCA 308 at [69] per Emmett JA.
63 A court may alleviate the consequences to an individual of having to comply with a court order within a specified time frame by granting a stay pending an appeal: see Rubie v Rubie at 354.”
In final written submissions the Prothonotary conceded that if the examination order was invalid, Atkinson LCM had no power to direct Mr Chan to enter the witness box. In the face of what was discussed in Rumble and the cases there referred to, this concession appears to be incorrectly made. Even if correct, however, the evidence establishes that the examination order was valid and that it bound Mr Chan.
It is Rule 38.3 which governs examination orders. It provides:
“38.3 Orders for examination
(cf DCR Part 25, rules 1 and 3; LCR Part 28, rules 1 and 2)
(1) In the case of a judgment or order of any court other than the Supreme Court, the court may not make an order for examination against the person bound by the judgment or order unless it is satisfied that the person:
(a) has been served with an examination notice in accordance with rule 38.1, and
(b) has failed, within the time limited by the notice:
(i) to provide any or sufficient answers to the questions specified in the notice, or
(ii) to produce any or sufficient documents for inspection by the judgment creditor,
as to any material questions.
(2) An order for examination must specify the time, date and place at which the person bound by the judgment or order is required to attend for examination.
(3) An order for examination must be served on the person bound by the judgment or order at least 14 days before the day on which he or she is required to attend for examination.
(4) A court that has made an order for examination may not, within 3 months after the order is made, make a further order for examination of the same person, on the application of the same person and in relation to the same judgment or order.
(5) A person may refuse to produce a document or thing in response to an order for examination if the person could lawfully refuse to produce that document or thing on a subpoena for production.”
Before the Local Court was an affidavit sworn by Ms Nicole Pace on 15 October 2011, in which she deposed that the examination notice had been served personally on Mr Chan and that he had failed to answer the notice, or to produce documents in answer to it. That evidence satisfied the requirements of Rule 38.
Annexed to Mr Oom’s affidavit was a copy of the application which had earlier been made to the Local Court, to register the certificate of determination as to costs as a judgment of the Court. That document contained an incorrect address for service (the street number reading “121/34” rather than “21/34”). The certificate attached to the application had the correct address, but Mr Chan’s case in the Local Court, on appeal and in these proceedings, was that he had never been properly served with a copy of that application.
Nevertheless, the evidence establishes that Mr Chan later became aware of the application. Other relevant documents, including the Local Court judgment and later the examination notice itself, all contained his correct address.
Mr Chan unsuccessfully took steps to challenge the validity of the examination order. With Fullerton J’s dismissal of that challenge in June 2011, the parties to the Local Court proceedings, as well as the Local Court, were all bound by the result. Before Atkinson LCM, there was no longer any question as to the validity of the examination order, Mr Chan having not pursued any appeal against Fullerton J’s judgment.
In the result, there can now be no question that the examination order was valid. It not having been set aside, Mr Chan was bound by it, as discussed in Rumble.
Mr Chan suffers a mental illness
It was in his evidence in May 2014 that Mr Chan raised the question of his fitness, a question which the Prothonotary considered had to be resolved. In Chan (No 15), I concluded that Mr Chan was fit and the hearing eventually continued, concluding on 17 June 2016.
In Chan (No 15), I also found that Mr Chan suffered a mental condition, observing:
“Mr Chan does suffer a relevant mental condition
39 I am satisfied on the evidence that Mr Chan suffers from a mental condition of the kind discussed by Dr Allnutt, namely, one that involves either delusions, or paranoia or likely both.
40 That conclusion is compelled not only by Dr Allnutt’s opinions, but also by what Mr Chan has said repeatedly, as to the conspiracy which he believes that he is the victim of and by his behaviour, including when Dr Allnutt was called, which I described in Chan (No 13).
41 At one time, Mr Chan believed that I had been influenced by that conspiracy. Later he came to conclude, if he is to be believed, that I have joined that conspiracy. I say, if he is to be believed, because while Mr Chan’s conduct is consistent with him suffering from delusions and/or paranoia, he is also plainly a highly intelligent man, a very experienced litigant, who usually considers carefully the course he believes will best advance his interests, before it is pursued. At times, his conduct suggests that some of his behaviour is deliberate, influenced by a desire to achieve whatever particular goal he then perceives to be in his interests, rather than the result of any delusion or paranoia. That reservation does not, however, detract from the conclusion which I have reached, that he does suffer a relevant mental condition.
42 As discussed in Eastman, it is not unusual, however, for courts to have to deal with people with mental disorders; sometimes severe ones. The fact that Mr Chan may suffer from such disorders does not, of itself, render him unfit, even if his paranoia and delusions relate to the subject-matter of these proceedings. Nor does the fact that he suffers from a mental disorder which may cause him to conduct his defence in a manner which is contrary to his interests. Of itself, that does not lead to the conclusion that he is unfit. Nor does the fact that his behaviour disrupts the orderly flow of the proceedings, as it undoubtedly has on occasions, as I have discussed in various of the decisions I have given.”
In final submissions the Prothonotary accepted that these findings, any other evidence of Mr Chan’s mental condition, and Mr Chan’s conduct in these proceedings were relevant to a defence of mental illness, although some caution had to be exercised, because the mental illness defence related to his condition in December 2011.
In his final evidence Mr Chan sought to establish that the conspiracy which he believes that he is a victim of, is still being pursued. He tendered exhibit 57, a notice placed near his home shortly prior to the final hearing, at a time when he had been unwell, which he said evidenced this. It said:
“Stop spitting out the front of my place cunt!”
Mr Chan denied that he had been spitting.
Mr Chan’s position as to his mental health was, however, somewhat contradictory. He did not tender any medical records or doctor’s reports which would have established that he suffered from any mental illness, although he has repeatedly claimed that such documents exist. In May 2014, for example, when the question of his fitness arose, his evidence was that he was aware of the existence of reports which showed that he suffered a serious mental illness. Despite various subpoenas and orders directed to various entities he identified as having such reports, Mr Chan has not tendered such reports.
What he did finally tender was advice of 14 April 2016 which he had received from Centrelink as to payments due to be made to him under a disability support pension. That advice did not disclose whether he suffered a physical disability, mental disability or both, or if mental, its nature.
From what fell from Mr Chan, it appears that he is now in receipt of that pension, because he made a successful application for its grant. He has in the past said that he was in receipt of a new start allowance. Mr Chan did not, however, tender any of the documents on which he relied when he applied for that pension, or any other documents which would have cast light on the nature of the disability on which he relied, when he applied for that pension.
During the course of the final hearing Mr Chan made, but I refused, applications that subpoenas be issued requiring production of documents which evidenced the basis of the decision to grant him this pension. What was finally sought to be subpoenaed was:
“All documents used in the making of decisions leading to the Notice of Decision dated 14 April 2016 by Centrelink which states that Mr. YAU HANG CHAN has a disability. (Note: Only documents relating to mental disability of Mr. CHAN are required by this subpoena. Documents that may relate to physical disability, if any, is NOT required by this subpoena. Do NOT produce any document relating to the physical disability of Mr. Chan, if any exists.)”
Amongst the reasons for the refusal of those applications was that Mr Chan had had more than sufficient time prior to the hearing to pursue any subpoena and that the documents Mr Chan had relied on, when he applied for the pension, were in his hands. Still, he did not tender them.
In a motion filed in October 2014, Mr Chan had sought orders including:
“1. A declaration that this Notice of Motion is filed without prejudice to the Defendant.
…
5. A declaration that the Summons of this Supreme Court case no. 2012/350266 is incompetent or otherwise invalidly filed.”
Mr Chan finally did not press order 5, but in his final submissions he relied on order 1 to submit that a distinction should be drawn between the evidence which he had given as the defendant and his conduct of the proceedings, in which he had appeared for himself. Mr Chan submitted, amongst other things, that order 1 was related to his defence and that :
“But because I’m an unrepresented litigant, unrepresented accused in this case and I’m playing two conflicting roles. One is the being the counsel of the defendant and the other role is the defendant himself and also because there’s a claim or counter claims of mental illness of the defendant, obviously for me to play the role of the counsel properly and without bringing the administration of justice into disrepute is to reject offhand any evidence or any suggestion or even mention that I have a mental illness whilst playing the role of the counsel for the defendant.
But because it is the defendant’s wish to rely on that evidence of mental illness in his defence. Therefore these two roles are in fact completely in conflict with each other. Therefore I ask your Honour for that all my submissions as the counsel for the defendant in the role of the counsel being the counsel for the defendant as well as the defendant himself the giving of evidence or submissions or the finding of any documents has been done, have been done without prejudice.”
The distinction Mr Chan seeks to make is illusory. Like all of us he is but one person. While there is a qualitative difference between giving evidence on oath and making submissions, all of his acts in the course of the proceedings are his own. The position would be different if the submissions he advanced in the proceedings had been advanced by another person on his behalf. Even then, he would be bound by such submissions, if they accorded with his own instructions.
In the result I am satisfied, as I found in Chan (No 15) that Mr Chan does suffer from a mental condition of the kind discussed by Dr Allnutt, namely, one that involves either delusions, or paranoia or likely both. His conduct at times since that judgment was given, both when giving evidence and making submissions, has been consistent with him suffering those conditions.
Was the defence of mental illness established?
From his own submissions it has also long been apparent that Mr Chan has well understood that he was at considerable risk of conviction of contempt. He has pursued a course designed to delay that result, as long as he could. His conduct of the proceedings has undoubtedly been the result of deliberate decisions which he has repeatedly made and pursued in order to frustrate and delay the hearing. That conduct must be taken into consideration, when the defence of mental illness is considered, although as the Prothonotary submitted, caution must be exercised because it is Mr Chan’s position as at 6 December 2011, which is relevant to his defence.
The test in respect of a defence of mental illness is that stated in R v M’Naghten (1843) 8 ER 718 (M’Naghten’s case) at 722:
“And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such, a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
It is for Mr Chan to prove that any mental condition from which he was suffering in December 2011 was of such a character that he could not appreciate the wrongness of what he was doing. As discussed in R v Porter [1933] HCA 1; (1933) 55 CLR 182 at 189-90:
“We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion.”
At one point, in his submissions, Mr Chan contended that his conduct on 6 December before Atkinson LCM demonstrated both that he suffered from a mental illness and that he did not know that what he was doing was wrong. He later submitted as to the McNaughton test, however:
“For example, it says in all cases that every man is to be presumed to be sane to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction. There’s nothing wrong about this statement at all and the defendant doesn’t need to be proved to be insane, doesn’t need to even rely on an insanity defence and the defendant and I as the counsel for the defendant have never made a submission that the defendant want to rely on an insanity defence.”
The evidence establishes that the course which Mr Chan pursued in the Local Court in 2011 was deliberate, as Mr Chan himself explained in his submissions.
As he explained in his submissions, Mr Chan considered that Atkinson LCM was in error as to his rights and obligations, for reasons which he explained then and still holds now. That was what motivated his refusal to obey her Honour’s orders. The evidence does not establish that the course that Mr Chan pursued was the result of a mental illness, which prevented him from knowing the nature and quality of his acts, when he refused the order to enter the witness box. As I will explain below by reference to what transpired at the hearing, Mr Chan pursued a considered and deliberate course, in accordance with rights which he then believed that he had, in relation to the examination order which he then and now still considers to be invalid and not to bind him, for the reasons he has explained.
Nor does the evidence establish that Mr Chan’s refusal in December 2011 to abide by Atkinson LCM’s order to enter the witness box was because he had a mental illness which precluded him from understanding that his refusal to obey the order was wrong. Mr Chan has a highly developed sense of what is right and what is wrong, what is just and what is unjust. He refused to obey the order because of his belief that he was not bound by the examination order because it was invalid. That belief was rational, but incorrect.
The evidence does not establish that Mr Chan was incapable of thinking rationally about the reasons which to ordinary people, make the act of refusing a magistrate’s order to enter the witness box to be examined, wrong. He rather believed that he was not obliged to obey the order, for reasons which he explained in these proceedings.
Mr Chan is in contempt of the Local Court
By written submissions of 17 February 2011, Mr Chan submitted that the costs assessment which had been registered as a judgment of the Local Court had not been conducted according to law; that the notice should never have been issued; that it had not been served upon him; that there was no legal basis for the commencement of the Local Court proceedings; that he had attempted, but failed to contact the cost assessor, Mr Lancken, who had not taken into account relevant documents and communications in the purported costs assessment; that there was an issue as to Mr Lancken’s qualifications to lawfully conduct a costs assessment; that he had not yet exhausted his relevant appeal rights, which included steps he had been pursuing in the Administrative Decisions Tribunal, the Federal Court and the High Court; he advanced allegations of fraud and abuse of process; he claimed that the wrong address had been used deliberately to prevent him receiving any notice of the Local Court proceedings; he complained that the only response he had received to the filing of a written submission in the Local Court in July 2010 that there was no basis for the commencement of the proceedings, was the service of the examination order; and he sought an adjournment and leave to file further evidence and submissions.
The transcript of the hearing on 6 December 2011 reveals that Mr Chan sought another adjournment on the commencement of the proceedings, relying on a notice of intention to appeal which he had filed on 30 November 2011 in respect of the judgment given by Adamson J in October 2011. Atkinson LCM refused that application, taking the view that she was bound by the judgments of this Court; that there was no evidence that Mr Chan had appealed Fullerton J’s judgment; that after the judgment given by Adamson J under the Vexatious Proceedings Act, he required leave under that Act, if he was to pursue any appeal against Fullerton J’s judgment; and that there was no evidence of such leave having been given.
Mr Chan did not accept her Honour’s views, contending that he was not prevented from pursuing any appeal to the Court of Appeal and that he had three months to complete his pursuit of such an appeal. Her Honour disagreed. TAFE’s pursuit of the examination order had been stayed, pending determination of the appeal to this Court, resolved by Fullerton J in June 2011. Atkinson LCM lifted the stay and said to Mr Chan:
“At this stage, I am bound by a decision of two judges of the Supreme Court, Adamson's J declared you a vexatious litigant and who is the one who dismissed the appeal? Fullerton J has dismissed your appeal. I granted a stay until the appeal was resolved, the stay is now lifted, I am going to require you to get into the witness box and I need to warn you that if you fail to cooperate, one of the things I need to consider is whether or not you're in contempt of court. I've heard what you've had to say, I've explained why we're going ahead today and I am going to require you to hop into the witness box.”
Mr Chan then sought a further adjournment and stay, relying on his notice of intention to appeal Adamson J’s orders, which her Honour also refused, there being no evidence of any appeal against Fullerton J’s order. There was then a further debate and repeated directions given by her Honour that Mr Chan enter the witness box, as well as warnings that her Honour might need to refer him to the Prothonotary for contempt proceedings to be brought against him, if he refused.
Mr Chan did not accept that by filing his notice of intention to appeal Adamson J’s judgment that Fullerton J’s judgment was not subject to an appeal, given that in her reasons for decision, Adamson J had referred to Fullerton J’s judgment. Atkinson LCM explained that Adamson J had not reviewed Fullerton J’s judgment, even though consideration had been given in the proceedings before Adamson J, to the way in which he had conducted the proceedings before Fullerton J. Her Honour also explained the consequences of the orders which Adamson J had made. She also drew to Mr Chan’s attention that the appeal period in respect of Fullerton J’s judgment had expired, before Adamson J had made her decision and that any attempt then to appeal Fullerton J’s decision, would also require leave of the Court of Appeal. Mr Chan disagreed.
After repeatedly advising Mr Chan that his applications for adjournment and stay were refused, which he repeatedly sought to challenge, and advising him that the examination would proceed, her Honour ordered Mr Chan to enter the witness box.
When he sought to debate further, her Honour asked Mr Chan if he was going to comply with her order. He did not respond to the question. Her Honour then said:
“HER HONOUR: Are you going to comply with my order or not?
DEFENDANT: I - I don't --
HER HONOUR: Because if you're not --
DEFENDANT: I - I - I - I think --
HER HONOUR: -- what I'm going to do is I'm going to refer this matter to the prothonotary to see whether or not contempt proceedings should be commenced against you because what you are doing by not getting into the witness box when I make an order is you're committing contempt in the face of the court and that is a very, very serious matter.”
Eventually her Honour directed Mr Chan to sit down and called on the TAFE Commission. It was submitted:
“PURDY: Your Honour, in my submission, Mr Chan's a very experienced litigant and well understands the effect of an order that your Honour makes.
HER HONOUR: Yes.
PURDY: In my submission, he can be in no doubt as to what your Honour is ordering him to do and, in my submission, it's quite clear that he's refusing to comply and, in those circumstances, I have instructions to seek that the matter be referred to the prothonotary for dealing with Mr Chan for contempt.”
Mr Chan then asked for her Honour to explain again to him the position. Her Honour said:
“My position is there is no evidence before me that Fullerton's J decision made on 30 June is under appeal, therefore, there is no impediment to this examination taking place, I have ordered you to hop into the witness box so we can commence the examination. I have given you many opportunities. Before I formally refer this matter to the prothonotary, I give you one last chance to hope(sic) into the witness box, are you going to hop into the witness box?”
Mr Chan than explained at length why he considered that her Honour’s view was wrong. His persistent refusal to enter the witness box finally led her Honour to the conclusion that Mr Chan was in contempt. She explained why. Mr Chan did not alter his position and so, her Honour referred the matter to the Prothonotary and over Mr Chan’s objections, made another costs order against him.
In the result the examination was finally adjourned and the proceedings referred to the Prothonotary of the Court under s 24(4) of the Local Court Act.
In his final submissions, Mr Chan argued that Atkinson LCM’s position had wrongly been that she would not bother herself with the appeal process that he was pursuing; that she was wrong in her view as to his need to obtain leave to appeal; that she was probably unfamiliar with the Court of Appeal‘s practices: that she was under a misconception as to the requirement as to leave; that she made an error of judgment, which need not be explored in these proceedings, but involved her Honour unnecessarily going into a technical discussion as to steps in the appeal process with which her Honour was not familiar and that if she had been familiar with those processes, she had committed judicial misconduct, in not accepting that his notice of intention to appeal was an appeal process; that her Honour had undertaken an academic exercise, suitable for lawyers and academics and not for a judicial officer sitting in court to decide; that her Honour was obliged, as a practical matter, to administer the law on a daily basis and not entitled to go into such “academic discussions”, because what was before her was the practical matter of the enforcement of the costs order made against him; that the substance of what was before her was his desire to overturn the Court’s order and the steps he had taken to pursue that it; that all that was open to her Honour to consider was whether he wanted to appeal and had taken steps to pursue the appeal, of which there was evidence; that there were no Rules which said that notices of intention to appeal were not part of the appeal process; that her Honour’s views were opinions which had not been integrated into the day-to-day practice of the law by the government and the courts; that often leave to appeal and the appeal were dealt with in the same sitting by the Court of Appeal; that this was its usual practice; and that the distinctions which her Honour had drawn were unpractical and did not work on a daily basis.
None of these submissions can be accepted.
The position on 6 December 2011 was that Mr Chan had not appealed Fullerton J’s 30 June judgment. Under Rule 50.3 he had 28 days from 30 June to lodge such an appeal and under Rule 51.6, 28 days to lodge a notice of intention to appeal that decision, in which event he had 3 months from the date of the judgment to file his appeal. By 6 December 2011 he had filed neither. Nor has he since then pursued any such appeal.
Had Mr Chan sought to appeal at any time after the 28 day appeal period expired, he would have had to make an application to the Court of Appeal under Rule 51.16(2) for an extension of time. This is not an unqualified right. An applicant for such relief must establish a sufficient reason for its grant, which depends on what the interests of justice requires, given matters such as the nature of the proceedings, the conduct of the parties, the consequences of the grant of the extension and the explanation for the delay (see Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 and Bi v Mourad [2010] NSWCA 17). Mr Chan has never made such an application.
These were not academic considerations as Mr Chan argued in these proceedings, but practical ones, the Rules binding as they do all courts and parties including Mr Chan and TAFE. Contrary to Mr Chan’s case, such matters did have to be considered by Atkinson LCM on 6 December, when Mr Chan sought a further adjournment and stay of the examination order, so that he could pursue an appeal.
By 6 December 2011 Mr Chan was also bound by the orders Adamson J had made under the Vexatious Proceedings Act. That, too, was a relevant consideration. Those orders required him to obtain leave of this Court, before bringing any further proceedings. Mr Chan had not sought such leave in respect of an appeal in relation to Fullerton J’s judgment. What he relied on was a notice of intention to appeal Adamson J’s decision, a notice which he has never pursued.
Contrary to Mr Chan’s submissions, Rule 51.9 provides that the filing of such a notice of intention did not operate to commence appeal proceedings. Nor did it operate to stay Adamson J’s orders. The notice thus had no impact on the orders which Fullerton J had made, dismissing Mr Chan’s challenge to the validity of the examination order. These, too, were practical considerations which Atkinson LCM rightly considered, when refusing Mr Chan’s adjournment applications.
In the result, Atkinson LCM was correct in concluding that Mr Chan was bound to obey the examination order. Following her refusal of his adjournment and stay applications, he was bound by her Honour’s orders to enter the witness box to be examined.
As Kirby P discussed in Registrar of the Court of Appeal v Raad (Court of Appeal (NSW), 9 June 1992, unrep) at 14:
"The refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the courts of this country. It undermines the rule of law observed in our society. As this Court said in Gilby, the refusal to be sworn, or once sworn to give evidence, is a failure to discharge the obligation which the person owes as a member of the community or because he or she is within it. It is a concomitant of a society ruled by law and not by brute force that a person competent to do so should, where required, be sworn or affirmed to give truthful evidence and that he or she should give evidence when called upon to do so in the courts in answer to questions lawfully addressed."
Those observations apply equally to an examination order. As Beazley JA discussed in Rumble at [76] – [77]:
“76 A key aspect of the rule of law is the importance of respect for the institution charged with the responsibility of interpreting and applying the law. Compliance with court orders is the means by which those to whom they apply demonstrate that institutional respect. Disagreement with court orders does not of itself indicate a lack of institutional respect. However, the legal system, through the appellate process, provides the means for the regular challenge of such orders. These processes are themselves underpinned by the essential requirements of procedural fairness. In turn, fair treatment through court processes engenders respect for the institution whose responsibility it is to apply the law.
77 Those who use Court processes have a corresponding obligation to ensure that they do so with due regard to their obligations to the Court.”
In Mr Chan’s case, as he has complained, unquestionably his ordinary rights as a litigant were circumscribed by the orders made against him under the Vexatious Proceedings Act. That did not, however, remove or alter his obligations to comply with court orders made against him. Unless they were set aside or stayed, he was bound to comply with them. As Basten JA explained in Rumble at [114] - [118], it remains a contempt to disobey orders, even those that are subsequently set aside.
Even Beazley JA, who was in the minority in Rumble as to the result, McColl and Basten JA taking a contrary view in relation to the order made against Ms Rumble, agreed that while she considered that the order which bound Mrs Rumble had been made in error and should be set aside, that did not relieve her of the obligation to obey the order, until it was set aside. Mr Chan was in a similar position. Beazley JA also considered that the error in relation to the order on which the contempt was based, was relevant to the sentence imposed on Ms Rumble. There was no such error in this case, Mr Chan having failed in his appeal against the examination order..
Mr Chan having used the Court’s processes as he did to challenge the validity of the examination order; having failed to establish its invalidity; and not having appealed Fullerton J’s decision, which was binding, on 6 December 2011 he was also bound to follow Atkinson LCM’s order to enter the witness box to be examined. He refused without lawful excuse.
In these proceedings, despite having twice had the benefit of pro bono legal advice, Mr Chan does not accept that he was in contempt of the Local Court. In the result, the examination in the Local Court has not yet proceeded.
The Prothonotary’s case that Mr Chan’s conduct in failing to enter the witness box to be sworn and to answer questions in the examination, when ordered to do so by Atkinson LCM was contempt, which, as a matter of practical reality, had a tendency to interfere with the administration of justice, has been established, beyond reasonable doubt. That is because, by his conduct Mr Chan has impeded the ability of the TAFE Commission to enforce the orders made by the Court in 2005 for the payment of its costs.
Such contempt in the face of the Local Court has the tendency to interfere with, or undermine the authority, performance and dignity of that court, as was discussed in Witham v Holloway [1996] HCA 3; (1996) 183 CLR 525, where it was observed at 538-9:
“Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process . Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. Civil contempts, on the other hand, are concerned with failures to comply with judgments or orders of the courts. But civil and criminal contempt overlap. Thus, disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious. Defiance of the court's order renders criminal what would be otherwise civil contempt. Where noncompliance with a judgment or order goes beyond mere breach and involves misconduct, civil contempt also has "a penal or disciplinary jurisdiction [that is] exercised by the court in the public interest". [footnotes omitted]
In the result Mr Chan must be found guilty of the contempt alleged. It will be necessary to sentence him. I will give directions for the sentence hearing, once this judgment is delivered.
Orders
For the reasons given, I declare that Mr Chan was in contempt of the Local Court on 6 December 2011 when he repeatedly refused Atkinson LCM’s order that he enter the witness box to be examined.
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