Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 7)
[2014] NSWSC 583
•13 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 7) [2014] NSWSC 583 Hearing dates: 13 May 2014 Decision date: 13 May 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Application refused.
Catchwords: PROCEDURE - witnesses - orders sought to require witnesses to give evidence - failure to give any notice of application - failure to take steps to have subpoenas issued - s 192 of the Evidence Act - orders sought declined Legislation Cited: Evidence Act 1995 (NSW)
Vexatious Proceedings Act 2008 (NSW)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
This morning Mr Chan made an oral application for a wholesale departure from the ordinary processes by which witnesses are called to give evidence in proceedings before this Court.
Without prior notice or application, on the second day of the hearing listed this week for Mr Chan to put his evidentiary case, he asked the Court to make orders requiring a number of people to give evidence. They were slowly identified throughout the course of the morning, by reference to documents annexed to an affidavit sworn by Mr Oom, a witness called by the plaintiff, which he swore in 2013. What Mr Chan sought is that all those persons so identified be ordered to attend and give evidence in these proceedings, without him having to approach them beforehand to enquire if they were prepared to give evidence and without him even having taken any steps to have subpoenas issued or to pay them conduct money required in the ordinary course to be paid with service of a subpoena.
Such orders were opposed for reasons which included not only the further delay, but that the relevance of the evidence which such witnesses could potentially give not being apparent and because of Mr Chan's failure to give any notice of the application or to make any enquiry as to the availability of the witnesses, they not having been mentioned as forming part of his case until today. The plaintiff also submitted that considerations of the kind discussed in s 192 of the Evidence Act1995 (NSW) precluded the orders sought being made. It provides:
"192 Leave, permission or direction may be given on terms
(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence."
Having heard Mr Chan at considerable length throughout the course of the morning, I declined to make the orders sought, notwithstanding that it was conceivable on Mr Chan's submissions that some of these witnesses might have relevant evidence to give. The reasons for that conclusion were as follows.
The contempt alleged in these proceedings concerns Mr Chan's refusal to comply with orders made by the Local Court, during an examination hearing. Mr Chan explained that his defence included that the proceedings involved an abuse of process and that the prosecutor had sought to enforce an unenforceable, unjust, invalid or improper order on which no allegation of contempt could rest.
Mr Chan also explained why it was that before today he had taken no steps to enquire as to the witness's availability or preparedness to give evidence or to issue any subpoenas. His reasons included his financial circumstances, which he says preclude him from approaching the Court to issue any subpoena, or pay any necessary conduct money, as well as the consequences of the Vexatious Proceeding orders made against him.
He also considered that even if subpoenas had been issued they would not have been complied with, for reasons which he explained included his past experience of applications successfully made to set subpoenas he had served aside and when witnesses had been absent overseas on leave.
One of those who Mr Chan seeks to call has not been identified. Clearly no order could be made in relation to an unidentified person. Other witnesses identified are parties to proceedings dealt with by Adamson J, when orders were made against Mr Chan under the Vexatious Proceedings Act 2008 (NSW). Others were solicitors who had filed various documents and sworn various affidavits annexed to Mr Oom's affidavit.
Some of the witnesses, Mr Lancken for example, the costs assessor on whose assessment orders were made against Mr Chan in the proceedings in which he was involved with the TAFE Commission in 2005 and out of which the examination order in the Local Court arose, could conceivably give relevant evidence. That was a relevant consideration in determining this application, as was the nature of the proceedings and the fact that Mr Chan appears unrepresented.
I concluded, nevertheless, that no just basis for the orders sought had been established, particularly when it was considered that they would, of necessity, require yet another adjournment of these proceedings, which have been fixed for further hearing for three days this week, so that Mr Chan could put his evidentiary case and a fourth day for the parties to make their submissions.
The result of Mr Chan's approach, namely, failing to make any application for the unusual order which he sought prior to this week's hearing, is that potential witnesses have received no prior notice of his desire to call them at this hearing. Were the orders to be made, they would be deprived of their normal rights in relation to giving evidence as the result of the service of a subpoena.
I was well satisfied that the orders sought could not justly be made in all of the circumstances.
These are certainly proceedings which potentially have serious consequences for Mr Chan, nevertheless, the consequences of the orders, which would undoubtedly prolong the proceedings in circumstances which are not fair either to the plaintiff or the witnesses, preclude the making of the order sought, notwithstanding what Mr Chan submitted, as to the importance of these witnesses to his case.
Mr Chan has received a fair opportunity to present his case. He has had since the adjournment in February to prepare himself for this week's hearing, listed to suit his convenience. The consequences of his failure to take available and necessary steps between February and May to ensure that those witnesses who he wishes to call in his case have either been approached and agreed to give evidence, or have been served a subpoena requiring their attendance, or have otherwise been given notice of and ordered to attend the hearing, may not justly be addressed by the order which he has only now belatedly sought on the second day of the adjourned hearing.
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Decision last updated: 14 May 2014
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