Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 5)
[2014] NSWSC 119
•24 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 5) [2014] NSWSC 119 Hearing dates: 24 February 2014 Decision date: 24 February 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Application to revoke decision refused.
Catchwords: CONTEMPT OF COURT - alleged contempt before the Local Court proceedings - vexatious litigant - application to revoke an adjournment decision - application refused Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607 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
EX TEMPORE Judgment
HER HONOUR: On Friday, 21 February 2014, Mr Chan made, and I refused, an adjournment application. This morning, Mr Chan has made an application that I revoke that decision. That application was opposed, and it is one which I refused for the following reasons.
On Friday, having heard the plaintiff and determined the application which Mr Chan made by facsimile message, the matter was stood down on the plaintiff's application, so that an attempt could be made to communicate with Mr Chan. That was done by way of a letter sent to the fax machine Mr Chan had used to communicate with the plaintiff and the Court. That course was pursued in circumstances where Mr Chan has not provided the Court, nor the plaintiff, with other means of communication with him, such as a telephone number, email address or facsimile number, on which he could be communicated with when the need arises.
It is common ground that the plaintiff sent a letter to Mr Chan on Friday, but there was no appearance when the hearing resumed later in the day, because Mr Chan had not received that letter, for reasons which he has explained this morning. It is only today that he has received a copy of it.
The hearing continued on Friday in his absence. Mr Oom had been cross-examined by Mr Chan on the previous day. On the plaintiff's application he was then excused, and the plaintiff's evidentiary case closed.
Again, on the plaintiff's application, the matter was then adjourned for submissions today, so that steps could be taken to advise Mr Chan of what had occurred, for him to be provided with a copy of an outline of the plaintiff's submissions and to give him another opportunity to appear. This morning, he has appeared and confirmed that he received that correspondence and the submissions. It was thereupon that he made this application for revocation of the refusal of Friday's adjournment application.
The grounds, which he explained extensively, on which that application was advanced included that the plaintiff's attempt to communicate with him by facsimile on Friday had been part of an extensive ongoing conspiracy, which he explains includes persons employed by the Crown Solicitor's Office. Mr Chan holds a view that that conspiracy is designed to preclude him from properly defending these proceedings and include steps being taken on Friday to preclude him being given notice of what had occurred to his application.
As I explained when refusing the adjournment application on Friday, Mr Chan was well aware of the risk which he was taking by the course which he pursued. Had Mr Chan wished to know the fate of that application, he could have come to Court or he could have made contact with the Court or the plaintiff, to inquire as to the fate of the application. He didn't do so. Mr Chan now faces the consequences of his decisions, which he wishes to avoid.
That the attempt to communicate with Mr Chan on Friday was the result of any conspiracy against him cannot in these circumstances be accepted.
Mr Chan also claimed that the reason for his application on Friday for an adjournment was as the result of a medical emergency which he sought to demonstrate by tender of a medical certificate from a Dr Sivarajah who, on 21 February 2014, provided a medical certificate. That certified that he had examined Mr Chan that day and had formed the opinion that he was suffering from pain in his right knee and would be unfit for work from 21 February 2014 to 21 February 2014 inclusive.
The application was also supported by reference to authority, Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 44 ALR 607, a case concerned with the rule in Browne v Dunn, Mr Chan submitting that even if a witness has been excused, if an issue has been overlooked in cross-examination the witness ought to be recalled.
In this case, of course, the position is that Mr Chan has not overlooked asking Mr Oom any questions. What rather has occurred is that Mr Oom has been excused, in circumstances where Mr Chan made an adjournment application during the course of the cross-examination which was refused. The authority Mr Chan relies on is, in the circumstances, not of assistance to him.
The application is, as I have said, opposed by the plaintiff in circumstances where, of course, it is unquestionable that Mr Chan is facing a serious charge of contempt. That is a factor which has to be considered and weighed in the balance. Also to be considered, however, is his approach to the conduct of these proceedings. Not only has that been marked by repeated adjournment applications, but also by other ongoing attempts to disrupt and delay the hearing.
On Friday, when Mr Oom was in cross-examination, Mr Chan chose not to come to Court, taking the risk which was then plainly apparent to him that his adjournment application would be refused and that he would thereby abandon the opportunity to continue cross-examining Mr Oom. That there was any medical emergency which precluded Mr Chan from attending Court on Friday has not been established. The medical certificate on which he relies establishes no such emergency, nor does it provide any proper foundation for the grant of the application made today.
In responding to the opposition to the adjournment application, Mr Chan again explained that in the past, the Crown Solicitor has always taken advantage of him and that he has had earlier experiences in past litigation when it has adopted a similar approach to applications which he has made. This is but, he says, another example of a conspiracy which is ongoing amongst members of the Crown Solicitor's Office against him. Mr Chan plainly holds that belief but the circumstances in which this application come forward demonstrate that the situation in which he is now placed is not the result of any such conspiracy but, rather, the consequences of decisions which he has knowingly taken.
Mr Chan also contended that the opposition to this application and what had occurred in relation to his adjournment application on Friday amounted to an abuse of process designed to cause him injustice. I cannot accept that submission. To the contrary; while the adjournment application was certainly opposed, from the steps which the plaintiff pursued on Friday, that it was seeking to do Mr Chan an injustice in the circumstances which had arisen simply cannot be accepted.
For all of those reasons, the application to revoke the adjournment on Friday is refused.
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Decision last updated: 25 February 2014
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