Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 22)

[2016] NSWSC 1013

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 22) [2016] NSWSC 1013
Hearing dates:	21 July 2016
Date of orders:	21 July 2016
Decision date:	21 July 2016
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1) A pre-sentence report is to be prepared; (2) The defendant is to report to Hurstville Community Corrections Office at Level 2, 2 Woodville Street, Hurstville between 8.30am and 4.30pm by 7 August 2016; (3) The plaintiff is to file and serve written submissions on sentence, and any evidence, by 5 September 2016; (4) The defendant is to file and serve written submissions on sentence, and notify the plaintiff in writing of any documents he intends to tender, by 28 September 2016; (5) The plaintiff is to file and serve any written submissions in reply by 5 October 2016; and    (6) The hearing dates of 7 and 14 October 2016 are confirmed.
Catchwords:	PRACTICE AND PROCEDURE – Pro Bono referral – No point of principle
Legislation Cited:	Uniform Civil Procedure Rules
Cases Cited:	Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 20) 2016 NSWSC 855
Category:	Procedural and other rulings
Parties:	Prothonotary of the Supreme Court of New South Wales – Plaintiff Yau Hang Chan -Defendant
Representation:	Counsel:      Solicitors: Crown Solicitor’s Office (NSW) – Plaintiff Self –Defendant
File Number(s):	2012/00350266
Publication restriction:	Nil

Judgment

INTRODUCTION

1. On 23 June 2016 the defendant, Yua Hang Chan, was found guilty by Schmidt J of contempt. It is not necessary for me to set out the circumstances which gave rise to that finding. They are fully set out in her Honour's judgment: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 20) 2016 NSWSC 855.

2. Having reached that conclusion, her Honour indicated that for the purposes of proceeding to sentence it would be necessary to make further directions.

3. Although separate from her judgment, it is evident that her Honour also made orders pursuant to Part 7 Rule 34 and following of the Uniform Civil Procedure Rules, referring Mr Chan to the Registrar of the Court for referral to a barrister or solicitor on the pro bono panel for legal assistance. It is also evident that consistent with her Honour's order, the Registrar of the Court wrote to Mr Chan and asked him to complete a form to facilitate a referral to the New South Wales Bar Association for the purposes of determining the availability of a member of the Bar to assist him in these proceedings.

4. Mr Chan has not completed the documentation to allow that referral to proceed. It would appear from some of the exchanges in court this morning that Mr Chan is under something of a misunderstanding as to the operation of the system of pro bono referrals. He indicated to me, at one point, that he did not wish to avail himself of any assistance given by any member of the NSW Bar Association, but wished to avail himself of assistance from a member of the panel of barristers within the Supreme Court. Obviously this Court does not have such a panel. The actions of the Registrar in asking Mr Chan to complete documentation to allow the order for referral made by Schmidt J to proceed was in accordance with the accepted practice. I was also told by Ms Caldwell, who appeared for the Prothonotary, that two previous pro-bono referrals to two members of the Bar had resulted in each of those persons ultimately refusing to act for the defendant.

5. Mr Chan also indicated, as I understood it, that he is seeking (or has sought) assistance, privately and independently of any pro bono referral. The transcript will reflect that notwithstanding being given the opportunity to indicate to me whether he wished to avail himself of any such pro bono assistance as might be available, Mr Chan did not respond clearly one way or the other.

6. These proceedings have a long and protracted history. They first came before Schmidt J as long ago as 3 September 2013. It was not until 23 June 2016 that her Honour found Mr Chan guilty of contempt. The matter came before her Honour on innumerable occasions between September 2013 and June 2016. Indeed, her Honour's last judgment was the 20th judgment given in the proceedings.

7. Ms Caldwell has proposed that I make a number of orders which will facilitate the matter coming back before Schmidt J on 7 and 14 October 2016 for the purposes of a sentence hearing. Short minutes reflecting those proposed orders were given to the defendant prior to today. The proposed orders seem to me to be completely appropriate. Indeed, they are necessary in order to bring this matter to some conclusion.

8. Whether Mr Chan wishes to complete the documentation to allow the pro bono referral ordered by Schmidt J to proceed, or whether he wishes to engage independent lawyers, will be a matter for him. In my view the orders sought by the Prothonotary are entirely appropriate, and I propose to make them. Mr Chan will be provided with a copy of these orders before he leaves Court today.

9. I make the following orders:

1. A pre-sentence report is to be prepared;

2. The defendant is to report to Hurstville Community Corrections Office at Level 2, 2 Woodville Street, Hurstville between 8.30am and 4.30pm by 7 August 2016;

3. The plaintiff is to file and serve written submissions on sentence, and any evidence, by 5 September 2016;

4. The defendant is to file and serve written submissions on sentence, and notify the plaintiff in writing of any documents he intends to tender, by 28 September 2016;

5. The plaintiff is to file and serve any written submissions in reply by 5 October 2016; and   

6. The hearing dates of 7 and 14 October 2016 are confirmed.

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Amendments

18 November 2016 - Citation amended to read (No.22)

Decision last updated: 18 November 2016