Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 21)

[2016] NSWSC 875

Supreme Court

New South Wales

Medium Neutral Citation:	Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 21) [2016] NSWSC 875
Hearing dates:	23 June 2016
Date of orders:	23 June 2016
Decision date:	23 June 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Application for adjournment refused.
Catchwords:	CONTEMPT OF COURT – alleged contempt before Local Court– vexatious litigant – application for an adjournment – refused
Legislation Cited:	Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Attorney General v Chan [2006] NSWSC 605 Chan v TAFE Commission (Supreme Court (NSW), 30 June 2011, unrep) Chan v Louey [2006] NSWSC 605 Chan v Louey [2007] NSWSC 272
Category:	Procedural and other rulings
Parties:	Prothonotary of the Supreme Court of New South Wales (Plaintiff) Yau Hang Chan (Defendant)
Representation:	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: The matter is listed today for judgment and directions. Yesterday afternoon I received from Mr Chan a written submission, which has been marked MFI 26, which he proposed to advance today in support of yet another application that the hearing be adjourned. By that submission and his oral submissions today, Mr Chan has pursued an adjournment on a number of bases. Firstly, when the hearing concluded on Friday last, Mr Chan was given an opportunity to provide a reference to a High Court case to which he had referred in his submissions, which he said supported his case that he was not in contempt of the Local Court because he was not obliged to abide by an invalid order. That citation has not yet been provided and Mr Chan now seeks further time in order to do so.

2. Secondly, Mr Chan also wishes, he said, now to appeal judgments which were given in 2005 by Malpass AsJ (see Chan v Louey [2006] NSWSC 605) and by Bell J (see Chan v Louey [2007] NSWSC 272). Thirdly, he said that he now also wishes to appeal against the examination order, but has not yet decided whether that will necessitate an appeal against Fullerton J's 2011 judgment (see Chan v TAFE Commission & Anor (Supreme Court (NSW), 30 June 2011, unrep)), in which his earlier challenge to the validity of the examination order failed.

3. Mr Chan also relied on changes in his financial circumstances since April 2016 when he began receiving the benefit of a disability support pension, which he says will now permit him to pursue these appeals in a way which he, to this point, has not been able to, given his straitened financial circumstances.

4. The application was opposed, the Prothonotary submitting that Mr Chan has had a fair opportunity to supply his citation and has also, in the years which have passed since 2005, had the opportunity to pursue the appeals he says he now wishes to pursue; that the 2015 judgments in any event, are not relevant to what has to be decided in this case; and that there is no basis for adjourning yet again and deferring the judgment listed to be given today.

5. Mr Chan disagreed, submitting that the authority that he wanted to supply was one of his favourite cases. He had not yet been able to find it, however, he explained, because of his financial resources, which were not such that he could maintain a proper filing system. Instead, he had to store his documents in boxes that precluded him from efficiently laying his hands on the judgment he wished to rely on.

6. Mr Chan also said that prior to the hearing he had not spent the time necessary to find that authority, because he had not considered that to be necessary, and had rather prioritised the time available to him to pursue other aspects of his case, which he considered had to be given priority.

7. Mr Chan also said that he could not have predicted that I would have been interested in the case which he relied on in his submissions.

8. Mr Chan also explained how his ongoing desire to pursue the appeals he now wishes to pursue with his increased financial resources had been precluded by the consequences of orders made in 2011 by Adamson J under the Vexatious Proceedings Act2008 (NSW) (see Attorney General v Chan [2006] NSWSC 605), which he considers are the result of a conspiracy of which he has long been the victim. He explained again that part of that conspiracy had involved the use of legal process to harass him in an unfair and unlawful manner now over the course of some ten years, with detriment to his health and finances.

9. The application is refused.

10. The hearing concluded on Friday last with Mr Chan being given an opportunity to provide the citation he referred to in his own submissions. He has not done so for the reasons he has explained. Given that it was Mr Chan's own submission that the High Court authority he referred to supported his view that he was not bound to abide by an invalid court order, that he could not have appreciated that I would be interested in being given a reference to the case on which he relied, can simply not be accepted. Even if correct, there is no doubt in the circumstances that Mr Chan has had a fair opportunity to provide that reference.

11. The opportunity which Mr Chan seeks in 2016 to pursue appeals against judgments given by Malpass AsJ and Bell J in 2005, Fullerton J in 2011, or as to the validity of the examination order, can be accepted. That, however, is also not a proper basis for now again adjourning these proceedings. Nor are the consequences which the orders made by Adamson J under the Vexatious Proceedings Act in 2011 a proper basis for granting the adjournment which he now seeks, even if that be another judgment against which he now wishes to pursue on appeal.

12. Accordingly, the adjournment application is refused. I will now deliver the judgment which is listed this morning.

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Decision last updated: 24 June 2016