Pointless III

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.

 

 

 

.

 

 

 

Tags:

6 Responses to “Pointless III”

  1. Mira Says:

    Mr Chan is in serious need of help

  2. Andrew Says:

    It seems the legal system is ponderous and does not solve matters as it should. No one is satisfied and justice was not seen to be done, nor done. Do let us know of the ultimate outcome.

    • marcellous Says:

      Andrew, not so sure about your second sentence. YHC is unlikely ever to be satisfied. It is probably futile for those on the receiving end of his attentions to seek satisfaction or justice from him. Once this goes back to the Local Court we may hear no more of it. That would in my opinion be the best possible outcome in the circumstances.

  3. Mira Says:

    So you’re quite OK with YHC having created all this havoc, distress and damage without being made accountable for it? If this is your idea of justice, let’s all behave in the same manner and do away with our legal system! I would be very interested to know why you feel that no pursuing YHC would be the best outcome for all? How is this fair to his “victims”?

    • marcellous Says:

      Mira,

      I’m not OK with it in an absolute sense, but in terms of the available options, I think it would be the least bad (and therefore best) outcome. To simplify, it’s a bad/mad dilemma.

      I think I have explained already why I seriously doubt whether YHC will ever have any or in any way sufficient money to compensate people for the trouble he has wrongly caused them. I don’t want to comment more specifically on what might happen going ahead in terms of punishing him for the alleged contempt because that could cause trouble.

      If there is a point to this “pointless” series it is that, at the point that the vexatious litigant order was made, the court system had achieved what could have been a successful containment of the harm that YHC could cause in the future.

      A big part of that harm is the enormous amount of the court system’s time (itself a scarce and expensive resource) that he takes up. TAFE NSW’s attempts to recover money from YHC by examining him (in my opinion futile) which have then obliged the courts to consider punishing him for refusal to co-operate with that process just opened up a whole new front where dealing with him is likely further and in my opinion disproportionately (and unnecessarily in the sense that it starts with pointless steps taken by TAFE NSW) to consume the courts’ time.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: