Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 8)
[2014] NSWSC 596
•16 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 8) [2014] NSWSC 596 Hearing dates: 13 May 2014 Decision date: 16 May 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Application refused.
Catchwords: PROCEDURE - reasons for refusal of adjournment and disqualification applications - no notice or motion - adjournment sought due to financial circumstances, question of prejudice, criminal interference, legal aid appeal - pro bono legal advice - dissatisfaction with prior legal advice - further referral sought not granted - disqualification - actual bias - no bias established - refused Legislation Cited: Civil Procedure Rules 2005
Legal Aid Commission Act 1979 (NSW)
Supreme Court Act 1970 (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
Judgment
The hearing of this matter was adjourned on 24 February 2014 to 12 May 2014, so that Mr Chan could put his evidentiary case and the party's submissions could be heard.
On 5 March I gave reasons for refusing various orders Mr Chan had sought in a motion filed on 24 February, which had been refused that day (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 6) [2014] NSWSC 153). When the hearing commenced on 12 May, Mr Chan was granted an adjournment so that he could read the judgment. It emerged that he had not attended on 5 March when the reasons were given, despite having been sent written notice of the listing by registered mail on 28 February. A copy of the judgment had also been mailed to Mr Chan, but he said that he had not received it. Nor had he approached the Court for a copy, or read the judgment where it is published on the Court's website.
On resumption, without prior notice or a motion, Mr Chan made a further application for an adjournment, which I refused. On that refusal, Mr Chan made a further application that I disqualify myself, on this occasion for actual bias. I also refused that application.
I also refused Mr Chan's demand that my associate sign the copy of the judgment of 5 March, which she had given him at my request. That document contained a copy of her signed certification that the document was a copy of the judgment given on 5 March, in the Court's usual terms. Mr Chan has no right under the Civil Procedure Rules 2005, or otherwise, to demand that the document given to him be signed again. The time spent on his pursuit of my staff and later in court when he pressed his request, was simply wasted.
These are the reasons for the refusal of Mr Chan's adjournment and disqualification applications.
Adjournment
The adjournment application was opposed as being yet another attempt to hinder and delay the hearing of the proceedings.
In his submissions Mr Chan explained that he had not been able to give the plaintiff any notice of his application, even on the morning of 12 May, before the hearing commenced when approached, because he had not even then made a decision to make such an application.
This was one of the reasons for the refusal of the application. Litigation such as this ought not to be conducted by ambush and surprise. Justice requires that the plaintiff be given some prior notice, not only of the nature of interlocutory applications which Mr Chan wishes to pursue, but their basis. An approach to the litigation on his part, whereby he makes no prior decision as to how he is to conduct the proceedings and pays no attention at all to the position of the plaintiff, is not a proper basis upon which an adjournment application such as that made on 12 May can be granted.
In so far as the application rested on matters which Mr Chan had read in the 5 March judgment only upon coming to court on 12 May, his failure to take steps available to him to acquaint himself with the matters dealt with in the 5 March judgment, which he was aware beforehand, had been given on 5 March, was another good reason for refusing his application.
There were other reasons. The grounds on which the application was pressed were in broad terms:
Mr Chan's financial circumstances.
His desire to appeal the 5 March judgment.
My prejudice.
Criminal interference in his life.
His legal aid appeal.
The pro bono legal advice he had received in 2013 and his desire to obtain other pro bono advice.
His inability to appeal any judgment given in these proceedings.
Some of these grounds raised matters which Mr Chan had earlier pressed in relation to other adjournment applications which have been refused.
Financial circumstances
Mr Chan has relied on his poor financial circumstances to advance other of his earlier applications. He said that his circumstances have worsened because of the colder weather. There is no reason to doubt what he says, but those circumstances were well known to him in February, when he sought the opportunity to advance his evidentiary case during the days listed for that purpose at the adjourned hearing in May. That they continue is not a proper basis upon which the hearing of this application could be adjourned.
Mr Chan also explained that he had not undertaken the preparation necessary to conduct his evidentiary case. Again, that may be accepted, but that is a decision which he has made, knowing that he had been granted the adjournment which he had sought in February, in order that he could take the steps necessary to put on his case.
That he had not done so also provided no proper basis for the further adjournment which he sought.
The 5 March judgment
Mr Chan not having read the 5 March judgment prior to the resumption of the hearing in May is the result of his own actions. His stated desire to appeal that judgment may be accepted, but is not a basis on which the adjournment which he sought could justly be granted.
Such an application not only requires leave under s 101(5) of the Supreme Court Act 1970 (NSW). Because he has been declared a vexatious litigant under the Vexatious Proceedings Act2008 (NSW) the processes imposed by that legislation bind Mr Chan. On his past submissions as to his financial circumstances, any application for leave to appeal would also involve him making and being granted an application to waive the applicable fees.
Mr Chan not having read the judgment as he could have, not having taken steps available to him to notify the plaintiff that he wished to appeal the judgment and not having taken any of the steps necessary to be taken, before he could pursue the appeal he has belatedly said he wishes to pursue, provided no just basis on which Mr Chan's further adjournment application could be granted.
Prejudice
Mr Chan's position in relation to my alleged prejudice against him was not entirely clear when the adjournment application was pressed.
I was satisfied, however, that the 5 March judgment did not evidence any prejudice warranting a further adjournment of the hearing.
Criminal interference in his life
Mr Chan tendered an application made to the Local Court for an apprehended violence order, which that Court had advised him on 1 May it could not deal with, Mr Chan not having obtained the necessary leave of this Court, in accordance with the provisions of the Vexatious Proceedings Act, before the Local Court could deal with his application.
What Mr Chan there complained about was the conduct of an identified person, who he alleged had long harassed him and was involved in drug dealing. He was woken by noise at about 5.30 am on 29 April, which had disrupted his sleep and caused him to be fatigued. He saw the person who he alleged had woken him some 10 metres from his door at about 7 am and then decided to seek the AVO, because he feared continuing harrassment and further assault, which he had experienced in the past, as he explained in his application.
This was an aspect of alleged conduct by those who live near Mr Chan, which Mr Chan has repeatedly explained in these proceedings. He has also given evidence as to his belief that he is the victim of a criminal conspiracy amongst various persons, on which he relied to advance the adjournment application, explaining that they involved persons employed in the registries of various courts and tribunals.
Mr Chan's beliefs about this type of conduct and the conspiracies he alleges, is not a basis upon which the further adjournment which he sought could be granted. They are regrettable, but cannot preclude the hearing of the case.
Legal aid appeal
Mr Chan made an application for legal aid for these proceedings, which has been refused and which he has appealed, an appeal which he claims has not yet been determined.
I have dealt with this in earlier judgments (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270).
Mr Chan led no further evidence to support his submissions that the conclusions reached in those judgments were wrong. There was no suggestion that he has approached Legal Aid to make any enquiries about the progress of his appeal and no evidence as to its progress or fate.
In the result, he established no basis upon which a different view could be taken of his legal aid appeal, to that taken in the earlier decisions.
His submission that I had misinterpreted s 57 of the Legal Aid Commission Act1979 (NSW) could also not be accepted. It provides:
"57 Adjournment of certain proceedings
Where it appears to a court or tribunal, on any information before it:
(a) that a party to any proceedings before the court or tribunal:
(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or
(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,
(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and
(c) that there are no special circumstances that prevent it from doing so,
the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it."
In order for Mr Chan to achieve the adjournment which he sought in accordance with this section, it was he who had to establish on the evidence not only that he has appealed the refusal of his legal aid application, but also that the appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings.
He has not established this. To the contrary, given the time at which the document which he signed in order to appeal the refusal of his application and the absence of evidence that he has taken any steps to pursue that appeal, there is simply no basis on which it can be concluded that his appeal is bona fide and is being pursued, if it is, other than to hinder and improperly delay the hearing of these proceedings, as has earlier been submitted for the plaintiff.
That conclusion was reinforced by Mr Chan's explanation of his reasons for refusing the pro bono legal advice which he earlier received about these proceedings.
Pro bono legal advice
The hearing was adjourned in September 2013, so that Mr Chan could be referred for pro bono legal advice. He obtained that advice, but refused to accept it and has since appeared unrepresented.
On 12 March he revealed that the advice he had been given was that he should acknowledge his contempt and apologise for it. He explained that he considered that the advice had been inadequate. He thus sought another referral for further pro bono advice from someone else, who was prepared to devote adequate time to a consideration of his case, which he considered had not been given by those who had earlier advised him.
Mr Chan also said that he also wished to pursue other avenues by which he might receive pro bono advice, before the hearing proceeded, but led no evidence that he has made any effort to pursue such assistance, despite the further adjournment in February.
This, too, provided no proper basis for the grant of another adjournment.
Nor is Mr Chan in the circumstances entitled to a further referral for pro bono legal assistance. That depends on him establishing that it is in the interests of justice that such a referral be made. Rule 7.36 provides:
"7.36 Referral to a barrister or solicitor
(cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)
(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
(2) For the purposes of subrule (1), the court may take into account:
(a) the means of the litigant, and
(b) the capacity of the litigant to obtain legal assistance outside the scheme, and
(c) the nature and complexity of the proceedings, and
(d) any other matter that the court considers appropriate.
(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.
(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.
(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.
(4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant's referral, the registrar may make an order terminating the litigant's referral.
(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.
(6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister."
While Mr Chan established a basis for the first referral made in 2013, he did not establish any reasons which would justify a further referral being made. Dissatisfaction with the advice which he received after the first referral is not a sufficient basis for making a further referral. Nor is satisfaction that a litigant cannot otherwise obtain legal representation or that the litigant or the Court would be assisted by pro bono representation (see Re F [2013] NSWCA 239 at [23]).
On Mr Chan's submissions there can be no confidence that he would accept any advice, no matter who gave it, which did not accord with his own opinions.
Inability to appeal any judgment given in these proceedings
Contrary to Mr Chan's apprehension, he has the right under s 101 of the Supreme Court Act to seek leave to appeal a judgment given in these proceedings, subject to compliance with the orders made under the Vexatious Proceedings Act.
That is not a proper basis upon which any further adjournment of these proceedings could be granted.
Disqualification application
This application was pressed on the basis of actual bias, which Mr Chan submitted was evidenced by the reasons given for the refusal of his apprehended bias application which I dealt with in Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 6) [2014] NSWSC 153. There I said at [56] - [65]:
"56 In order to establish apprehended bias, Mr Chan must establish that the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial or unprejudiced mind to the resolution of the matters which arise for determination in the proceedings. That requires consideration of what "a fair mind lay observer might reasonably apprehend" (see Ebner v Official Trustee in Bankruptcy [2000] HCA 63 (2000) 205 CLR 337 at [6] - [7]). In Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, it was explained at [87] that in assessing what the hypothetical reaction of a fair-minded observer would be, knowledge of the actual circumstances of the case must be attributed to that person.
57 In Ebner it was also observed at [19] - [20]:
"[19] Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable."
58 In R v Simpson; Ex Parte Morrison [1984] HCA 25; (1984) 154 CLR 101, it was explained at 104:
"It is quite clear that when there is a suggestion of bias, the court should not proceed either if there is actual bias or if there is a reasonable suspicion of bias. That is not to say, however, that the court must desist from hearing proceedings when somebody wrongly and irrationally suspects bias."
59 In this case what has to be attributed to the fair-minded observer includes the serious nature of the proceedings brought against Mr Chan, the course which the proceedings have taken, how he has conducted himself in the proceedings, how he has been dealt with during the course of the hearing and how the applications he has made have been determined.
60 Mr Chan's submission that his various applications have all been refused was factually incorrect. A number of his applications have succeeded, for example the application which he made at the hearing in September 2013 for referral for pro bono legal assistance and an adjournment to pursue that application; another application for adjournment at the commencement of the resumed hearing in February, when he had not completed photocopying documents; and another adjournment on another day, in order that he could attend a Centrelink commitment.
61 Other applications were refused for reasons which have been published. They include adjournment applications which, it became apparent, were part of a series of deliberate steps pursued by Mr Chan to delay and disrupt the orderly conduct of the proceedings, which proceeded at the resumed hearing when he again appeared unrepresented, with the greatest difficulty.
62 Mr Chan is an experienced litigant. In these proceedings he has demonstrated a real capacity to advance his case by cogent submissions and proper cross-examination, when he wishes to do so. He has also demonstrated a capacity to delay and disrupt the proceedings by a course of deliberate conduct persisted in by various means, including repeatedly pressing applications, even when refused for reasons given. He has been argumentative and has refused to act in accordance with repeated requests made of him, such as that he take a seat, that he not interrupt me or the plaintiff's legal representatives and that he not constantly repeat evidence which he has already given or submissions he has already made.
63 Initially I thought that some of this behaviour, which suggested indecision and disorganisation, reflected that Mr Chan was unrepresented. Over time it became apparent that Mr Chan was quite organised and that his disruptive behaviour was both calculated and persistent, designed to ensure that applications which he was pressing succeeded, or that the hearing did not progress.
64 In the result, I have had to ask Mr Chan repeatedly to stop interrupting; to sit down when asked; at times to confine himself to giving evidence, rather than advancing submissions; to stop repeating himself; at other times to bring his evidence or submissions to a close; and at other times to warn him that if he did not ask a question, that I would bring his cross-examination to an end, or that if he did not tender a document, I would bring his evidentiary case to an end. The latter was necessary because at certain times Mr Chan spent many minutes either standing in silence, or reading documents, or in searching for documents which he explained he had not put in order, or had not yet decided whether he would tender. At other times he simply refused to respond to attempts to attract his attention.
65 That any fair-minded observer would conclude that how Mr Chan and his applications have been dealt with were the result of either bias or a denial of natural justice cannot be accepted. That was certainly not established by the aggrieved feelings which Mr Chan described in his submissions."
Mr Chan submitted that these observations were factually incorrect, unfair and defamatory; revealed that matters on which his case rested, such as the existence of the conspiracy which he alleged, had been decided against him; revealed that I had wrongly applied the law; that I was actually biased; and that he could not receive a fair hearing. On his approach I ought not to have made any reference to his conduct in the proceedings in the published judgment and that there was nothing improper about the steps he had taken to delay and disrupt the proceedings, which were a normal part of litigation and the consequence of steps he had properly take in the litigation.
The plaintiff opposed Mr Chan's application, submitting that Mr Chan had established no basis on which it could be granted and drawing attention to the warning given judges against too readily acceding to applications such as this. Mason J warned, for example in Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352, that judicial officers should not too readily submit to an application that they should disqualify themselves from sitting:
"... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
Trial judges may also not accede to disqualification applications such as this if a litigant "wrongly and irrationally suspects bias" (see The Queen v Simpson: Ex parte Morrison [1984] 154 CLR 101 at 104).
In this case I concluded that the application could not be acceded to because no error of law was established, nor was any factual error or bias.
Whether there is any actual bias is a question of fact which must be determined in light of the matters which Mr Chan urges disclosed that such bias existed, namely the conclusions reached in the judgment. This involves a higher test than that of apprehended bias (see McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [73]). As discussed by Ward J in Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67 at [53]:
"(As I indicated in my oral reasons I would do, I add that the test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [16]) as confirmed in Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48; (2011) 282 ALR 685 at [31]). It requires identification of what it is said might lead a decision-maker to decide a question other than on its merits and articulation of the logical connection between that matter and the feared deviation from the course of deciding the question other than on its merits. In Wilson, the High Court noted the fallacy in arguing (as seems to have been the basis of Mr Partington's claim of bias) that because one side lost the litigation, the judge was biased, or that some appellable error demonstrated pre-judgment. Where actual bias is alleged, such an allegation can be made good only by proof that the decision maker is actually biased. Brereton J, in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540, said "the submission that a reasonable bystander would conclude that there was actual bias is misconceived, because actual bias depends not upon the impression of any reasonable bystander, but upon proof that the decision maker is actually biased" (at [45]).)"
Mr Chan established no such bias. Contrary to his submission that it was wrong and defamatory to refer to his conduct in the proceedings or to explain the conclusions I had reached about that conduct, in order to determine the apprehended bias application which he had pressed, consideration necessarily had to be given to his conduct during the proceedings and how I had dealt with it, which was as described.
The conclusion that Mr Chan had pursued a series of deliberate steps designed to delay and disrupt the orderly conduct of the proceedings (at [61]) and that his behaviour was both calculated and persistent, designed to ensure that applications which he was pressing succeeded, and that the hearing did not progress (at [63]), were unavoidable in the circumstances. These conclusions rested on the matters described at [64].
As discussed at [59] an understanding both of the proceedings and these matters must be ascribed to a fair minded observer when the test on which applications for apprehended bias must be resolved is applied (see Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70 at 87). It must be assumed that such an observer would base their opinion on a fair assessment of the judges' conduct in the context of the whole trial (see Galea v Galea (1990) 19 NSWLR 263 at 279.).
The conclusions which I reached as to Mr Chan's repeated attempts to delay or bring these proceedings to an end without final hearing or judgment, were unquestionably negative. That such conclusions have been arrived at does not, however, evidence either bias or establish that Mr Chan will not receive a fair hearing in relation to the contempt charge pursued against him. As discussed in Re F [2013] NSWCA 239:
"16 The mere fact that a submission is rejected cannot amount to bias; every judicial officer rejects one party's submissions every time a point is argued. And the mere fact that a submission is rejected in a way which seems to the loser to be curt, or demeaning, or belittling, once again, cannot of itself amount to bias. The reason that must be so is that regard must be had to the nature of the submission. Some submissions are, of their nature, readily rejected, because they are very weak or indeed hopeless."
Trial judges are sometimes required to control and reach conclusions about how litigants conduct themselves in court. Of necessity, when applications such as that which Mr Chan made, conclusions have to be reached as to what the application rests on, in this case his conduct and how I have dealt with it.
That a negative conclusion was reached in relation to his conduct does not establish that Mr Chan will not receive a fair hearing as what is in issue in this case, namely, whether he was in contempt of the Local Court, as alleged, when he refused to comply with an examination order. On Mr Chan's repeated submissions, there is no issue between the parties that he refused to comply with that order. What is in issue is whether that refusal involved any contempt.
Mr Chan's conduct in these proceedings and the adverse conclusions which I reached in relation to it, are irrelevant to the resolution of that question and say nothing as to how I will approach or resolve it.
In the result I took the view that the judgment relied on did not evidence the actual bias Mr Chan complained of and accordingly the disqualification application was refused.
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Decision last updated: 16 May 2014
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