Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 9)
[2014] NSWSC 603
•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 9) [2014] NSWSC 603 Hearing dates: 16 May 2014 Decision date: 16 May 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Orders sought refused.
Catchwords: PROCEDURE - notice of motion - order seeking an adjournment - order seeking witness to attend Court to give evidence - orders refused - reasons Cases Cited: Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 7) [2014] NSWSC 583 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: This morning, over the plaintiff's objection, Mr Chan was granted leave to file in court a motion supported by an affidavit. There he sought yet another adjournment of the proceedings so that he could pursue an appeal against the refusal of his legal aid application and he also sought an order that the costs assessor, Mr Lancken, attend to give evidence in these proceedings.
Both applications were opposed as being yet another attempt to improperly frustrate and hinder the hearing of these proceedings, which were listed today so that Mr Chan could have the opportunity to finish giving his evidence and the parties could make their submissions.
I refused the orders sought. The reasons are the following.
The adjournment application was supported by the tender of a letter of 8 May 2014 sent to Mr Chan by the Legal Aid Commission on 12 May, advising him that his appeal had been received and had been forwarded to the Legal Aid Review Committee. The letter indicated that the matter being dealt with was "money owed by applicant - non-consumer, Sydney Supreme Court".
There is no evidence which establishes that this advice relates to the appeal which he lodged in February in relation to an application for legal aid for these proceedings, which had been refused (exhibit 8).
These proceedings concern Mr Chan's alleged contempt of the Local Court.
Even assuming that the Legal Aid Commission's letter does refer to these proceedings and an appeal for the refusal of Mr Chan's legal aid application in respect of these proceedings, the letter clearly supports what has earlier been submitted for the plaintiff as to the bona fides of the appeal against the refusal of the legal aid application. It is apparent that Mr Chan has taken no steps to pursue the appeal since February, despite then being granted the adjournment of the hearing which he sought to May.
In those circumstances, I was well satisfied that the further adjournment application had to be refused.
I was also satisfied that the application for orders in relation to Mr Lancken could also not be made. That application was supported by an affidavit which Mr Chan affirmed today. There he reiterated what he has earlier submitted and said while giving his evidence earlier in the proceedings, namely that:
"Mr Lancken, whose costs assessment was relied upon by the Supreme Court to issue the costs certificate for the Supreme Court case number 30100/05 has never actually done the costs assessment according to law. I hereby ask the Supreme Court to order Mr Stephen Lancken to attend Supreme Court to give evidence on the truth or falsity of paragraph 2 above. The legal burden is on Mr Lancken to prove that he has actually done the costs assessment according to law. The burden is not on the defendant to prove that Mr Lancken has not done the costs assessment as it is impossible for any person to prove that said assessment did not exist."
Mr Chan's understanding that any burden so falls on Mr Lancken in these proceedings is mistaken.
The best evidence rule on which he also relied provided no basis for the order which he sought. The application in relation to Mr Lancken has earlier been considered and refused (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 7) [2014] NSWSC 583). The further application and its basis advanced the application for the orders sought no further.
For the same reasons as earlier given, that application was also again refused.
The further hearing of the proceedings, I finally note, have now been adjourned by consent following evidence given by Mr Chan as to the existence of psychiatric reports held by the Legal Aid Commission and by other Government entities, which assess him to be suffering from a serious mental illness which he described in terms that he is incapable of understanding the reality of the world in a proper manner and concluding that he is insane. In those circumstances, the plaintiff properly accepted that a serious question had arisen as to Mr Chan's fitness to be tried.
By consent, the Court has made orders addressed to the Legal Aid Commission and the Commissioner of Police for the production of any psychiatric and psychological reports which relate to Mr Chan from 1 January 2009 to date. The parties have also been granted access to such reports produced in answer to the order.
The further conduct of the proceedings is going to be considered at a directions hearing at 9.30am on 6 June 2014.
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Decision last updated: 19 May 2014
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