Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 4)
[2014] NSWSC 114
•21 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 4) [2014] NSWSC 114 Hearing dates: 21 February 2014 Decision date: 21 February 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Adjournment application refused.
Catchwords: CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - application for further adjournment - no proper basis for adjournment - adjournment refused Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005Cases Cited: ASIC v Sigalla (No 4) [2011] NSWSC 62 Category: Interlocutory applications Parties: Prothonotary of the Supreme Court of New South Wales (Plaintiff)
Yau Hang Chan (Defendant)Representation: Solicitors:
Ms B Baker
IV Knight, Crown Solicitor's Office (Plaintiff)
Mr Chan (self-represented)
File Number(s): 2012/350266 Publication restriction: None
EXTEMPORE Judgment
HER HONOUR: This morning, Mr Chan has made yet another adjournment application which was opposed by the plaintiff. That application was made by way of a communication sent by facsimile by Mr Chan at 10.38am when the matter was due to resume at 11am.
Mr Chan there explained that the reason for the application was that:
"2. I am unable to come to the hearing to continue the cross-examination of the witness Mr. Steve Oom today. As you are aware, I have a knee injury. I carried too much weight to the hearings of the last 2 days. I should not have been forced to do that. I also stood in Court for a long period yesterday. You know that because you were also present at all times when I was in Court. I am now experiencing the consequence of that, including but not limited to the pain of my injured knee. As a result, I would not be able to carry much weight to the hearing today. That means I would not be able to carry documents (e.g. the affidavit sworn 8 November 2012 by Steve Oom that has 110 pages; other documents necessary for this cross-examination and the hearing of today) that have too much weight for me. In the circumstances, I shall not be able to conduct this hearing today. For example, it would be useless for me to carry only 20 pages of Mr. Oom's affidavit, instead of 110 pages, to this cross-examination.
3. The relevant medical certificates showing my knee injury and its impact on me have already been received by your Honour as exhibits since 19 February 2014. There is no need for me to re-submit the same medical certificates to your Honour today. Please look at your Court files for those medical certificates."
The application is opposed in circumstances where the medical certificates to which Mr Chan makes reference are certificates which indicate that he suffered a knee injury in November. There is no medical certificate or other information as to the consequences of that knee injury and what the condition of his knee is now.
So far as yesterday's proceedings were concerned, Mr Chan asked if he could sit while presenting his case and he was readily given that leave. Despite the leave granted, he continued to stand when presenting his case and cross-examining Mr Oom, seemingly without discomfort.
The application is made against the background of repeated adjournment applications made over the course of the hearing which commenced several days ago, as well as earlier adjournment applications.
As was made evident to Mr Chan when refusing several of the adjournment applications which he made on the first day of this hearing, he was not entitled to make adjournment applications such as the one made today in the expectation that they would not be opposed or granted, but had to proceed on the footing that there was a risk that they might be refused. He is well aware of that possibility and the consequences of a refusal of his application.
It is convenient to observe that in giving reasons for the adjournment being refused several days ago, I made reference to provisions of the Civil Procedure Act 2005 which I took into account when determining that those applications should be refused. It was subsequently drawn to my attention by the plaintiff that its view was that the provisions of that legislation do not apply to this application.
I have now been referred to a decision of White J in ASIC v Sigalla (No 4) [2011] NSWSC 62 in which his Honour concluded that proceedings such as this involve common law criminal offences with the result that the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 do not apply but that, given the doubt which his Honour explored extensively in his judgment as to the correctness of that conclusion, he concluded that as such proceedings are essentially criminal in nature, even if they are civil proceedings, and that the safeguards of criminal procedure should apply to them.
That having been said, it is my view, and supported by the submissions of the plaintiff, that the principles which underpin consideration of an adjournment application such as this, are similar to those which have to be considered when adjournment applications to which the provisions of the Civil Procedure Act apply arise for determination. Questions as to what justice demands in the circumstances and whether any proper basis for the grant of the adjournment have been established by the applicant have to be determined.
On this occasion, in the circumstances which I have earlier explained, I am satisfied that justice demands that the application be refused, Mr Chan not having established any proper basis for the application to be granted or the hearing further delayed.
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Decision last updated: 24 February 2014
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