A conundrum

July 9, 2017

Maybe we are all unusual people, if you can only look closely enough, but George Sclavos, who for many years conducted a pharmacy at Leppington must have stood out.

From the late 1980s, George, who graduated as a pharmacist in 1973 when he was about 25, owned and ran a pharmacy at Leppington (near Campbelltown).  George never married and you’d have to say that the pharmacy really must have been his life.   He befriended many of his customers, including the local “down and outs” from the caravan park nearby whom he would often invite in after hours to spend time with him after the pharmacy had closed. 

George was the “go to” man amongst his fellow shopkeepers at Leppington for making up a float at the start of the trading day.  He lent many people money, but if they didn’t pay him back was apparently content to leave that as something which would rest on their consciences or probably souls (he was devoutly religious) if they failed to repay him.  He told a friend “If I die and they owe me the money maybe God will put that in my credit to cover my sins.”

George was a heavy smoker, and it seems that other aspects of his shopkeeping lifestyle were quite unhealthy.  In 2013, aged 65, he died suddenly at the pharmacy.

George’s older and only brother, his father and his mother had predeceased him in 1980, 1979 and 1992.  He was survived by Anna and Cleopatra, his brother’s daughters.  George had told his nieces that they would find a will in his house.

George had lived since 1983 in a house in Strathfield first owned by his father and later by him.  He was a bit of a hoarder.  His nieces and family friends set about tidying things up in the hope that the will would surface in the process.

A document later admitted to probate as a informal will was found in George’s bible (which was on the table next to his bed), folded around an old photo of Anna and Cleopatra.  This appointed Cleopatra (who is a barrister by profession) as his executor and left George’s estate of about $6 million to her and Anna equally.

But there was another claimant.

Okan Yesilhat claimed he had met George in 1999 when Okan was 17 and George about 51.  Okan said he had been in a sexual relationship with George from that time and was in a de facto relationship with George at the time of George’s death.  Okan said that the document found in the bible must have been planted there and was not a will.  He said that probate of the will should be revoked, in which case (on his contentions) he would take the entire estate as de facto “widower” on intestacy.

As a fall-back Okan claimed family provision on the basis of his asserted relationship with George.  As a fall-back or parallel claim to that, Okan also said that money which he had received from George in George’s lifetime was a gift rather than money that Okan had to pay back. This was about $386K less payments by Okan or his company in George’s lifetime of about $82K – a net amount of $304K.

Okan had also taken money out of George’s accounts after George’s death using means of operating these accounts which George had given him.  Even if you are authorised to take money from someone’s accounts while they are alive, that authority ceases on their death and any money taken out after usually has to be repaid to the estate.  One way or another (as the heir on intestacy or by means of provision in a greater amount) Okan sought to resist having to repay these post-mortem amounts, of about $206K.  Okan had made a further $7-8K of withdrawals from George’s accounts which were reversed by the bank when it stopped the account at Cleopatra’s request.

Anna and Cleopatra knew about Okan, because in 2011 George had told them that he had lent upwards of $100K to Okan for a tyre business on Canterbury Road in Lakemba.  Anna and her husband had visited the business and met Okan not long after that.  You could not blame Anna and Cleopatra for feeling some disquiet about this, let alone about the full picture which came to light after George’s death, not only of the substantial amounts which had passed in his lifetime, but also the post-mortem withdrawals from his accounts.

But Okan’s claim of a 14-year homosexual relationship with their uncle came as a complete shock to them.  As far as they were aware, although unmarried, George had had a number of girlfriends in his life.  There was a bit more mystery over the circumstances in which George had harboured in his home from 2005 to 2008 a (since deceased) married mother-of-five sex worker with a drug problem whom he had met on Canterbury Road.

To Cleopatra and Anna Okan’s claims were not only a shock but a calumny.

Okan for his part maintained that his relationship with George was secret for cultural reasons.  He rubbed salt in to the wound (so far as Anna and Cleopatra were concerned) by claiming that George was dismissive of and said disparaging things about them.

By the time the matter came to trial, it emerged that if Okan was telling the truth, he had his own cultural reasons for keeping his relationship with George secret, including two marriages of his own.  For good measure, witnesses claimed that even when married he was seen consorting with other women.

There was no evidence from anyone, even Okan, of either George or Okan having any other same-sex relationship.

The matter was heard over 21 days in early 2016 before Justice Slattery. It took his Honour over a year to deliver his decision: Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666.

That seems a long time, even if his Honour was off on leave for some of it, though the reasons are certainly lengthy.

If you’re the kind of person who likes to skip to the end of the book to find out the ending, or to look up the endings of TV serials on the internet (I am that kind of person) you can find out more there. Otherwise, you’ll have to wait until I have the energy to write another post.

SSO, Dutoit, not Argerich but Wang

July 3, 2017

On Saturday to the SOH to hear the SSO, conducted by Charles Dutoit.

The program was:

Stravinsky, Funeral Song
Beethoven, Piano Concerto No 1
de Falla, 2 suites from The Three-cornered Hat and
Ravel, La Valse.

For the concerto, Martha Argerich, originally slated to appear (for the third time for the first time in Sydney) was (yet again) a late scratching, this time replaced by Yuja Wang. Wang has probably been able to make a bit of a career out of stepping in when MA has cancelled.

Because of the Argerich factor, the SSO had hiked up the prices. In response, and bearing in mind the MA-no-show risk, I pegged down my seating reserve. At about the same price for my usual rear-stalls spot I was in Box Y at the side of the stage, diagonally behind YJW’s left shoulder.

Empty seats were conspicuous in the more expensive areas. Had I paid such top dollar, I too would have been tempted to return my ticket, which is just about the only recourse the orchestra allows. If there was a chance to buy tickets at a now reduced price (or to trade “up”, as I might have) they certainly weren’t advertising it.

What that really means is that the orchestra toughs it out on the laziness tax against everyone else who has paid the premium price on what was always (as the orchestra surely knew) a chancy prospect. That included me, and to be frank I felt a bit grumpy about that.

I wouldn’t want always to sit at the side, but it does have some benefits. There is a loss of balance and in particular of the frontal projection from the violins and the soloist/s. The gain is that you are much closer and the sound comes to you directly rather than bounced around the hall, so that what you do hear you hear much more clearly. And there is a big gain for the woodwind – often missing in action even in the rear stalls. Once you adjust for the diminished front it is like seeing and hearing the orchestra in cross-section.

This was particularly rewarding in the Stravinsky – a recently rediscovered early work for which I was totally unprepared. The big surprise was the obvious influence of Wagner. Alex Ross in the New Yorker gives the most succinct list of the Wagnerian elements (which are not confined to Siegfried’s Funeral March).

From my cross-sectional vantage point the bit I most liked was a kind of undulating accompaniment figure which emerges at about 6:30 in the youtube version (there is more than one) of last year’s second performance conducted by Gergiev in Leningrad/St Petersburg.

The Gergiev version sounds different from Dutoit and the SSO’s as I recall it, especially in mood, which in Sydney was more sombre than the recording comes across. There is surely an intrinsic interest in hearing different approaches to such a “new” work. It would be nice if the SSO’s performance could be available for a while on ABC “Classic” FM’s “Listen Again” facility. Given that P&M is already up there, I can only presume there is some rights obstacle to this.

In the Beethoven, what I was particularly able to see was how Dutoit energised the orchestral accompaniment figures, especially in the first movement. I was also in a good spot for Mr Celato’s clarinet solo in the middle movement. This movement was probably the high point of the Beethoven. People behind me said it was very slow. I honestly wouldn’t know. What with the clarinet and all I was most of all feeling how Mozartean it was.

It wasn’t the best spot to hear the piano sound, but when it came to the encores, starting with the Prokofiev Toccata, I had an extraordinary view of every muscle and bone in Yuja Wang’s back courtesy of her (almost) backless dress. It was like an anatomy lesson or one of those films of the inside of a big pipe organ at work. Wang’s other encores were the Rachmaninov Vocalise and the Horowitz variations on the gypsies’ song in Carmen.

I enjoyed The Three Cornered Hat without being particularly blown away by it – I’d say that’s the work rather than the performance, which was predictably brilliant. La Valse, for me, is a more compelling and made a great finale.

Afterwards I spoke to a couple (well, friends, but two of them) who, like me, had also come the week before for Pelléas et Mélisande. They enjoyed this concert more and I expect that is the taste of most of the SSO public. As for me, it is the Debussy which is still resonating most and I expect it to do so for a while.

Pelléas et Mélisande

June 24, 2017

Last night with D to the concert performance by the Sydney Symphony of Pelléas et Mélisande.

Although the two tickets that I picked up just a day or so before were shown on the booking plan as the only free pair of seats in the stalls, there were quite a lot of empty seats at the start. Some of these were filled by latecomers who overlooked the 7pm start, but I got the impression there was a bit of an interval exodus to offset this. As ever, it seems that a segment of the SSO subscriber base is simply not so keen on vocal works, even though this was conducted by Charles Dutoit, and even though the orchestra plays such a prominent role.

In terms of plot and incident, the opera is a bit slow – it’s symbolism rather than drama, though things get moving a bit more in about acts III and IV. The strongest impression one gets is the atmosphere of a remote place in a distant time – you really feel that a whole world is created. It’s hard to put your finger on why this is so but in away the elusiveness yet distinctinveness of the atmosphere and the music is exactly the point.

I’m going again tonight and am very much looking forward to it.

Update, 1 July

I went and, despite an unwelcome work-related thought which stole up on me and I found impossible to banish for an entire scene, enjoyed it very much. This afternoon I was able to hear about half on ABC “Classic” FM, where Saturday’s performance remains available to listen to again for the next 28 days.

1983

June 24, 2017

I was away in Canberra for a belated/extended Queen’s Birthday long weekend so it was only at the last minute on my return on the Wednesday after that I arranged to go and see some films at the Sydney Film Festival.

The first, on Thursday night, was Call me by your name. D (who can only be persuaded to go to the cinema to see “gay” films) came with me for that.  I sensed while I was watching that this might well be an adaptation of a novel, and indeed that turns out to be the case.  The film is full of little details shown to us which, to me, at least, were not really explicable at the time and are only made retrospectively clear by reading up on the book.

The story is set “somewhere in Northern Italy.”  The context for the depicted coming-of-age is that European kind of long languid summer which we don’t really have here in Australia.  (A quibble: even this European summer could not really have been as languid for the 17-year-old protagonist as depicted. Surely he needed to put in a bit of piano practice?)  It is all very beautiful in a Merchant-Ivory kind of way (Ivory wrote the script).  I enjoyed it, as I think did D, though he afterwards observed that he feels he is too old for this kind of movie.

On Friday afternoon I snuck away early from work to see The Teacher .  I was drawn to this in part because of my own friendships (dating from Berlin 1987) with a family from die ehemaliger DDR.  One feature of life in the DDR, and I think of all then-communist states, was that in the absence of a market economy, people resorted to informal networks for exchanges of goods and services and favours.  (Not that this doesn’t occur always, but then and there it was to a greater extent than since or then in the “West.”)   As the eponymous teacher (in the then Czechoslovakia) asks, “Shouldn’t we all help each other?”

Ironically, my East German friends remember this response to adversity favourably as giving rise to a greater social connectedness than under capitalism – which on one view just substitutes different adversities such as lack of money for those at the bottom of the pecking order.

But back to the film.

At the start we see the teacher getting each child in her middle-school class to tell her what their parents do.  Helping each other, in this case, turns out to mean the parents helping the teacher, in exchange for which she dispenses favouritism and tip-offs as to what to revise for class quizzes.  That may seem benign.  The darker side is if co-operation is not forthcoming, because the flip side of favouritism is victimisation of the children of parents who refuse to play the game.

As the music makes clear from the outset, this is all played as a comedy, obviously with a bite.  Zuzana Mauréry in the title role gives a bravura performance.

Both films were screened at the State Theatre, which for me was part of the point of going. In these multiplex days there is something of a time warp in going there – not just for the glorious fantasy architecture, but also of being part of a really big audience with a sense of occasion.

At the start when I go to the State I always have a bit of a double-take at the relatively small (to the size of the cinema and the proscenium) screen. In fact, I find I adjust to that quite quickly, and the sound system (obviously updated) rises well to the feel of the big room full of people.

The afternoon session of The Teacher still had a bit of the duffle-coat-and-and-thermos atmosphere of film festivals of yore.

The other more specific time warp was that both films were set in 1983.

In CMBYN that presumably came from the novel. The film signalled it in various ways, starting with the Sony walkman (Sony also produced the film) which the young protagonist was wedded to as he transcribed music with pencil and paper, and including the various popular-music-themed t-shirts he sported. Obviously cars and decor also matched the period. My own memory of 1983 is that news of HIV/AIDS was beginning to trickle out. Yes, I know the first news was in 1981, but I wonder if the boy’s parents would have been quite so open to his having a gay romance even a year later, in 1984. At the very least, they would have surely felt obliged to have a little chat about precautions.

In The Teacher, the period setting obviously had a specific historical function – the eponymous teacher is also a Communist Party leader and the willingness or unwillingness of any of the parents to complain has a lot to do with that. A particularly delicious aspect of the film is its period retro-look. As the reviewer in The Hollywood Reporter puts it:

Cinematographer Martin Ziaran, art director Juraj Fabry and costume designer Katarina Strbova Bielikova have come up with a warm look, with colorful, 1970s-like patterns. This initially counterintuitive choice is the opposite of the cold, austere and bleak way in which the Romanian New Wave has visualized the Communist era, for example. But it works beautifully as a counterpoint because despite the warmly nostalgic look, the film’s themes and message make it clear the era was not something we should look back on fondly in any way.

That’s a US perspective. I’m not sure if things are quite so black-and-white as that (the film itself offers a little 1991 postlude).

I’m probably a bit of a fraud to claim any film-festival-going credentials for having seen either of these films. Given Sony’s moniker on CMBYN and Palace Cinema’s on The Teacher my guess is that, provided you live in a metropolitan area of Australia, you can expect to see both of these films coming soon to a cinema near you.

Pinchgut – winter festivities

June 20, 2017

Pigmalion curtain call

I went on Saturday afternoon to the second and on Tuesday night to the last performance of Pinchgut Opera’s triple bill:

Rameau Anacréon (libretto by Pierre-Joseph-Justin Bernard)
Vinci Erighetta e Don Chilone (libretto by Vinci)
Rameau Pigmalion (libretto by Ballot de Sauvot)

I had picked up at the last minute two restricted view seats  – on opposite sides for obvious reasons.

Erighetta e don Chilone was a genially amusing (if not quite side-splitting) two-hander for Taryn Fiebig and Richard Alexander.  It’s a Neapolitan piece from the 1720s so stylistically think Pergolesi, who apparently studied with Vinci.  I enjoyed it though the business with a book (apparently it was meant to be a play within a play and a read-through at that) didn’t really add much for me.

The two Rameau works are both Actes de ballet.  Dance is a big element of them.  That is always a bit tricky because our modern tastes for dance and, I venture to say, the significance we attach to it, are probably not the same as in the original context.  Or maybe not so different.  Pigmalion, where there was actual dancing, managed this more successfully;  Anacreon was a bit busy and the resort to rhythmic movement as a substitute for dancing always feels a bit lame.

It’s said in such texts as I found in fragments on the web (or at least some of them) that Pigmalion is Rameau’s most successful work in this genre.  On Saturday, Anacreon had the advantage with me because (as I later realised) I have repeatedly listened to a chunk of it as part of a very old Les Arts Florissant compilation set of CDs.  By Tuesday, Pigmalion prevailed. I also felt that stylistically it was the more successfully realised.

I’m not a critic, so no roll call and just nice remarks.

Lauren Zolezzi, L’Amour in both works (first a kind of feminine Cupid in something rather like Con High uniform and then more adult and in masculine attire a la Cherubino) was probably the newcomer of the night.

In the orchestra, the violins were in fine form – how standards have risen over the years in the early music biz here in Oz!  Leader Matthew Greco played up a storm, especially in a very striking solo in the Vinci. I only noticed one tiny suspect moment in the oboes, which also is a sign of progress in the reliability stakes over the years though perhaps the parts in these works were not the most demanding or exposed.  Both of the Rameau pieces reserved particular moments of poetry for the flutes, and these were delectable.

The fast section of the Pigmalion ouverture includes what I can only describe as a particularly mind-blowing double hemiola system .

I don’t find it so easy to get worked up for an afternoon performance. I’m sure that on Tuesday I was in a more receptive mood than on Saturday. But there is also much to be said for what you can get out of something the second time around, provided of course that it is something that bears repetition.

On Tuesday I enjoyed the program very much.

[Picture from Pinchgut Facebook: I’m in there somewhere.]

Temporary postscript: for the next 3 or so weeks the performance broadcast on Sunday night can be heard from the ABC “Classic” FM website here.

 

 

 

My new scenic ride 2

June 12, 2017

After Steel Park, the bike path skirts foot of the sandstone plateau of The Warren, under what I like to think of as the Poo Bridge:

poo bridge

Another view:

poo br 2

Not long after, the path emerges just behind the Concordia Club near Tempe.

I take a left along Carrington Road.

Carrington Road

Once we spoke of remnant bushland (until Mike Baird had it bulldozed to make a parking spot for heavy equipment whilst the M5 is extended); now we might as well speak, in the inner city at least, of remnant industrial areas.  The buildings pictured (or some of them) were built in 1926 as a car assembly plant for General Motors.  Ibis roost in the palms and patrol the battlements.

Facing them are some strange almost-neighbours, the Sheik Alawy Youth Centre:

sheikh alawy centre

and

Rosicrucian Lodge

Who even knew there were still Rosicrucians?

Pictured in the foreground is a separated cycle way which the now-merged Marrickville Council installed. Problematically, the cyclists are faced with a “Give Way” sign each time a side street (itself with a “Give Way” sign in favour of Carrington Road) intervenes.  Further on, the cycle path dumps cyclists across the road with no warning to motorists other than an overgrown sign.  I find it safer to stay on the road.

The Carrington Road “precinct” has an almost-forgotten air to it.  To me that is part of its “you-find-this-ugly” charm.

The precinct is unlikely to remain forgotten for long.  It looks as though it will soon be thrown to the wolves of “urban renewal” – ie, more apartments.  There is money to be made.  Urgers are already on the case.

untitled (5)

Until that happens, the precinct and the larger Marrickville-Sydenham precinct which I then ride through after ducking under the railway (past the mysterious and only really visible from the train Sydney Water pumping station  where there also appears to be movement at the station) is given over to mixed light-industrial uses – distribution centres of one sort or another, motor workshops, community welfare groups and a strange preponderance of coffee roasters and wholesale bakeries emitting tantalising aromas.

Build it and they will come, I previously posted about the bike racks at Sydenham Station.  It is time to tether my steed.

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My (new) scenic ride to work 1

June 11, 2017

Just over a year ago, I moved to Canterbury. Ironically, just as NSW mergers of local government areas brought into being an officially designated “Inner West,” after over 30 years (leaving aside my Perth sojourn) I am no longer living there.

That was a bit of a blow to my geographical self-respect (self-regard some may say).  It also means that I am one big hill further away from the city.  As age takes its toll, that has proved an obstacle to a bicycle commute.

Maybe one day I will surmount that.  Meanwhile, when time and weather permit, I can ride to Sydenham and take a fast and more frequent train from there.  This is my new scenic ride (half way) to work.  It takes me mostly along a stretch of the Cooks River cycleway.

detention, green

That’s the detention pond near the mouth of Cup and Saucer Creek, not long after I join the path on the south side of the river.  When I took this picture it was full of unsightly green algae. It has since cleared up.

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This is a distant view of the old sugar mill, now converted to flats:

P1120006

I usually cross the river at this point:

bridge near sugar mill

There is a small harbour which must have been used for the sugar mill:

sugar mill harbour

An area is fenced off to protect birds basking in the sun from pesky people.

pelicans 1

pelicans 2

I suppose I got too close for comfort.

It was difficult to catch a good photo of this, but you can detect the main stream of the river from the plastic water bottles and other flotsam floating up and down along it with the tide.  Here at least some street rubbish has been captured at the end of a stormwater drain:

rubbish trap

though as we know it is but a drop in the ocean.

The path continues past sometimes flood-prone land and (I’m being botanically imprecise here) pleasing stands of paperbarks which I guess find that congenial.

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After passing playing fields and some decommissioned tennis courts, the path crosses the Cooks River again on a bridge which is definitely in need of renewal.

This brings the path back to the southern side of the Cooks River.  There is a mosque.

islamic centreThe path crosses Wardell Road and there are more playing fields and a tennis court which is often being played on until quite late at night.  A new bridge crosses over again just near the Marrickville Golf Course clubhouse:

golf course bridge

P1120078

I ride past the club house and out of the golf course, cross the bottom of Illawara Road and come to Steel Park.

Even if I’m not really thirsty, I always pause for a drink of water here on principle.

water stand

Because it’s free.

 

 

 

 

 

The show has to end some time

June 10, 2017

My father’s friendship with B dated from their first year in college together in Perth in 1943.  After my father and B married and both couples found themselves living in Sydney from the mid-fifties on, the friendship continued between the couples and, in a quasi-cousinly way, their children as we arrived.  We spent time together on holidays and every year shared an evening meal on Christmas Day.

Perth was a small town.  B and his wife even knew my stepmother who had also been at UWA with them.

B was the last survivor of this little group.  A few weeks ago I visited him at the nursing home to which he and his wife had moved shortly before her death.  There wasn’t much left of him, at least that he was able to express outwardly.

Last week I went to B’s funeral.  I don’t think there will be any more such funerals to go to.  I can only think of two other surviving contemporary friends of my father – one (they were at school together) is 92 and in Arizona, the other is in Canberra.  (Both of these men also knew B.)  In a way then, for me, it is the end of an era.

Only at the funeral did I learn that B’s father, who had been a doctor in WWI at Gallipoli and later the Western Front, died of an “accidental” overdose of self-administered morphine when B was aged four.

When B’s son called me with the news (“It’s that phone call,” he said, when he was put through to me at work) he told me that one of the last things his father had been able to say to him, about 10 days before, was “The show has to end some time.”

Almost the last thing I remember B saying to me was more than a year before that, when I had visited him at the nursing home.  His speech was already a bit indistinct.  “There’s lots of shuffling going on here,” he said.  At first I thought he meant that there were lots of room changes going on, but then the penny dropped.  It was a reference to Hamlet.

 

 

 

 

Pointless III

June 8, 2017

Mr Chan becomes a defendant

Of course Chan was a defendant for the vexatious litigant proceedings, but those proceedings were concluded.

It is now necessary to go back to the last proceedings referred to in the judgment of Adamson J, involving TAFE NSW and the examination summons.

TAFE NSW obtained an order for costs in the proceedings brought by Chan against it.  TAFE NSW had those costs assessed.  Chan did not pay the costs.  TAFE registered the assessment as a judgment in the Local Court.  Once you register an assessment as a judgment you can then invoke the procedure of the court to enforce it.

An examination summons is a procedure where a judgment creditor can bring a judgment debtor before the court where it has obtained a judgment to answer questions about his assets.  The purpose is to enable the judgment creditor to obtain information about what means the debtor may have to satisfy the judgment, which the judgment creditor can then use to decide how to seek to recover its debt.

The first step is to serve a notice on the debtor requiring the debtor to produce documents in relation to his means.  TAFE did this in July 2010.  Chan failed to comply with this.

The next step is to get the court to issue an examination summons for the debtor to attend court and be examined. TAFE NSW did this, probably no earlier than late September 2010, as in October 2010 the Local Court made an order under Rule 38.3 for examination of Mr Chan, on 27 January 2011.

The examination was adjourned to 17 February 2011 after Mr Chan filed a notice of motion seeking an annulment of that order. His motion was later dismissed and he was ordered to submit to the examination in the Local Court on 17 March 2011.

The examination was deferred because in February 2011 Chan commenced the proceedings in the Supreme Court which were dismissed by Fullerton J on 30 June 2011.

On 6 December 2011, Chan appeared before Magistrate Atkinson on the occasion set down for the examination.  He sought another adjournment, on the basis that he intended to appeal Fullerton J’s decision. After considering the notice of intention to appeal which Mr Chan then produced, her Honour refused the further adjournment. It is worth pointing out that the time to commence any such appeal had well and truly passed and any application for appeal would have required leave of the court as a result of Justice Adamson’s orders made on 4 November 2011.  The time to appeal from those orders had also passed, and no leave had been sought to appeal from Fullerton J’s orders.

Magistrate Atkinson refused the adjournment and ordered Chan to enter the witness box to be examined.  Chan refused.  Magistrate Atkinson told Chan that if he refused, she would refer the matter to the Supreme Court for him to be charged with contempt of court.  Chan still refused.  The examination did not occur.

In February 2012, the Prothonotary of the Supreme Court commenced a prosecution of Chan for contempt of court.

This is a cumbersome procedure.  It also encountered many delays.

Chan was the source of many if not all of these delays.

Proceedings were commenced by summons in December 2009.

Chan sought legal aid – his application was rejected and the matter had to be stayed to permit him to appeal that rejection; he sought and was given pro bono legal advice, which it may be inferred he did not accept.  Twice.

In May 2014  Chan raised the question of his fitness to be tried, a question which the Prothonotary considered had to be resolved.  This too proved a protracted process as Chan declined to provide his own psychiatric report or to be seen by Dr Allnutt, the psychiatrist finally selected by the Prothonotary to assess Mr Chan’s fitness to be tried in 2015.  Ultimately Dr Allnutt opined that Chan was not unfit to plead.  On 20 August 2015, by now up to no 15 in published reasons for judgment, Schmidt J held that, though Chan suffered from a mental condition that involved either delusions, or paranoia or likely both, he was fit to be tried.

On 23 June 2016 Justice Schmidt found Chan guilty of contempt.  Her reasons are No 20.

On 21 July 2016, Justice Bellew made orders for Mr Chan to attend for a pre-sentence report and for the filing of submisions in time for a hearing on sentence to occur on 7 and 14 October 2016.

As ever, that was not quite to be, but a sentence hearing did go ahead on 16 November 2016.

A development

But meanwhile, in December 2015, Justice N Adams had held that before deciding to refer a non-co-operating witness to the Supreme Court for prosecution, a magistrate had to offer the witness procedural fairness, and in particular an opportunity to make submissions as to whether the magistrate should deal with the contempt themselves – which they have the power to do.  The significance of this is that if a magistrate deals with the matter, the maximum penalty is less.  Maybe also section 32 of the Mental Health (Forensic Provisions) Act 1990 could apply.  (That’s my speculation, not Justice N Adams’ and its application to someone like Chan would be problematic.)  If the magistrate had not given a witness an opportunity to be heard on this question a prosecution by the Prothonotary is invalid.

The Prothonotory appealed against this decision but in October 2016 the Court of Appeal dismissed that appeal – Prothonotary of the Supreme Court of New South Wales v Dangerfield [2016] NSWCA 277  .

At the sentencing hearing, the Prothonotary (not that the Prothonotary, a court official whose exact present identity is decidedly difficult to track down, does this themselves) brought Dangerfeld to the attention of Justice Schmidt, but submitted that it did not apply in the case of Mr Chan.

On 2 June 2017, in judgment No 23, Justice Schmidt held that Dangerfield did apply.

Chan had submitted that if it did apply, then that should be an end to the matter.  Justice Schmidt instead ordered that the findng of contempt be revoked and the question of how Chan should be dealt with should be referred back to the Local Court.  In other words, the clock should be wound back to the point where Chan had been denied the opportunity to make submissions as to whether the Local Court should deal with the matter itself.

Despite Justice Schmidt’s stating that, because the finding of contempt was made before the decision of the Court of Appeal handed down its decision in Dangerfield, the proceedings were not a nullity, it is hard to avoid the feeling that all that went before in the Supreme Court was therefore essentially pointless.

What was the point of the examination summons?

By the time TAFE NSW started the process which culminated in the examination where Chan refused to enter the witness box, there were already published reasons from which it could be inferred that costs orders had been obtained against Chan by a whole host of parties other than TAFE NSW in at least the litigation which I have described in Pointless I as:

  1. the tenancy appeal;
  2. the Public Housing complaints;
  3. the train ticket subpoenas;
  4. Perry defamation; and
  5. the Constitutional objection to court fees (finally disposed of on 30 August 2010).

By the time the examination went ahead, it could be reasonably inferred from published reasons for judgment that Chan had also been ordered to pay costs in:

  1. The Local employment training solutions litigation;
  2. The previous proceedings against Mr Tran referred to in the published judgments in those proceedings; and
  3. The vexatious litigant proceedings.

It was also apparent that:

  • in 2003 Chan had been tenant of a room in a house;
  • since 2005 Chan had been a public housing tenant; and
  • he was a Centrelink client (and probably had been for some time given that he had obtained public housing in 2005) most recently on Newstart allowance.  (In fact, by April 2016 he had graduated to a disability support pension.)

The first of these strongly suggested he was hardly a man of means to start with and the second and third made him practically judgment-proof.  You can’t garnish Centrelink payments (only Centrelink can do that). A public housing tenant has no house to be sold up.

A moment’s reflection ought to have led to the conclusion that this situation was unlikely to change, especially given all that Chan’s many litigious ventures indicate about the kind of person he was, of which TAFE NSW must have had its own multiple demonstrations.  Even if Chan did have some assets against which a judgment could be recovered, the proceeds of such recovery would be vulnerable to being clawed back as preferences if any other costs-creditors took the trouble to have their costs assessed and he were then sent bankrupt.  I strongly suspect that most if not all of those with costs orders against Chan concluded that it was pointless even incurring the costs of having those costs assessed.

In the light of the enormous public expense that has been incurred by the State of NSW in one guise or another to date in the pursuit of the contempt charges against Mr Chan, which has still not yet run its course, it seems to me a pity that TAFE NSW took a different view.

 

 

 

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Pointless II

June 7, 2017

This is the second post in a series of posts about Yau Hang Chan, his interaction with the court system (and some tribunals) and that system’s interaction with him.

A vexatious litigant

On 25 March 2011 the NSW Attorney-General commenced proceedings in the Supreme Court of NSW under s 8 of the Vexatious Proceedings Act 2008 (NSW) for orders prohibiting Chan from commencing proceedings in NSW and staying all proceedings in NSW without and subject to the leave of the Court.

When the matter finally came on for hearing on 18 October 2011, Chan did not appear.  He had previously filed submissions and sent various communications disputing the validity of the proceedings against him, including a message on the day of the hearing that he would not appear.  The matter proceeded.  On 4 November 2011 Justice Adamson made the orders sought.

Most of Pointless I was drawn from Justice Adamson’s reasons for judgment.  In addition to the proceedings listed in Pointless I, by the time the application was heard Chan had brought fresh proceedings in the Supreme Court against TAFE NSW.   These proceedings were in relation to steps (of which more in Pointless III) that TAFE NSW had taken towards enforcing costs orders it had obtained against him.  The proceedings were summarily dismissed by Justice Fullerton on 30 June 2011.

What my account has necessarily abbreviated is the full nature of Chan’s conduct which founded Justice Adamson’s decision.  You need to read her decision to appreciate the wide range of collateral issues raised by Chan in his proceedings, and the many claims which were made by him, many of them ultimately abandoned or never backed up or never backed up in any cogent way.

A hallmark of many vexatious litigants is a capacity to perceive grievances and to formulate claims and arguments but a reluctance to bring them to finality.  Faced with opposing arguments, fresh claims are brought, amendments and adjournments sought, applications are made to disqualify judicial officers.

This is tremendously and unfairly burdensome to opposing parties and also to the courts.  Just because the claims are meritless does not mean they can be ignored. Even if, in hindsight, Chan’s claims once dismissed can be seen as ridiculous and even foolish does not detract from the stress that they will have caused to those subject to them.

Ultimately a stop has to be put to it.  That stop does not prevent a vexatious litigant from attempting to bring a claim, but it does reverse the usual presumptive right of all persons to bring claims and the concomitant burden on the objects of those claims to respond to them.  Before a potential defendant or respondent need be troubled with the vexatious litigant’s claims, the court will consider whether the claim has arguable substance.

So you might think that Justice Adamson’s decision brought to an end Mr Chan’s entanglement with the court system and, more importantly, his entanglement of others.  What a relief.

But no.

What happened next is the subject of Pointless III.