Posts Tagged ‘Yau Hang Chan’

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.

 

 

 

.

 

 

 

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.

 

Pointless I

June 6, 2017

This is the first in a series of three posts about Yau Hang Chan, vexatious litigant who currently faces the prospect of prosecution for contempt of court.

Like all long and sad tails, the beginning must lie buried in the mists of time, but it is necessary to begin somewhere.

Tenancy appeal

In February 2003 Yau Hang Chan entered into a residential tenancy agreement in respect of a room in a building at Croydon, for the term of one year commencing on 8 February 2003 and ending on 7 February 2004.  That, you might observe, is pretty much the most humble rental accommodation possible.  You can assume Chan was not a man of any substantial means.

On 3 December, the landlord gave him notice that he had to leave at the end of the term.  Chan did not leave and the landlords quite briskly obtained an order from the Residential Tenancy Tribunal for his eviction in March 2004.  Chan resisted this order by appealing (I infer some time in March 2004) to the Supreme Court, on grounds, mostly procedural, which were ultimately found to be baseless on 13 August 2004.  It counts as a mercy that he was then given until 27 August 2004 before the eviction order could be carried out.  He reached the end of the road with an application to the Court of Appeal for a stay pending an appeal to the court which was rejected on 24 August 2004.  Evictions are rarely carried out on the very first possible day, but nevertheless you can assume he was out pretty soon after that.

This must have been a dark time for Mr Chan.  On the other hand by his resistance he had effectively extended his occupation of the room for about six months, which was a pretty good result.

Chan’s situation was apparently desperate enough for him to be allocated public housing, which he moved into on 18 February 2005.

Unsuccessful TAFE studies proceedings 

By then Chan had enrolled in January 2005 in a course at Ultimo TAFE.  In the second half of that year he was enrolled in the subject “Develop and Apply Knowledge of the Library/Information Services Industries.”  This ran from July to 30 November. On 15 November his teacher informed him that he had failed a group presentation assessment task.

On 16 November 2005 Chan commenced proceedings challenging this in the Supreme Court against the the teacher personally and the TAFE Commission.  When the matter first came before the court on 20 November it was stood down to give the parties the chance to reach a negotiated resolution.  Mr Chan wanted to withdraw from the course without penalty.  The TAFE Commission said that he could withdraw but that a fail would still be recorded.  Chan withdrew and a fail was recorded.  You can see that from his position the negotiations were fruitless and probably they were always going to be.  Chan continued his proceedings.  These were ultimately summarily dismissed by Master Malpass (actually by then he was an Associate Justice but Master Malpass has a much more satisfying ring) in June 2006.

Mr Chan appealed unsuccessfully against this.  He made FOI requests and appealed decisions against them.  In 2008 he commenced fresh proceedings against his TAFE teachers’ superiors with claims in defamation, misfeasance in public office and negligence.  Those claims, other than the claim for defamation, were dismissed in December 2009.

Public Housing complaints

Meanwhile, almost as soon as Chan had moved into his public housing, he came into dispute with the Housing Department (a loose term because there were name changes for the relevant entity from time to time).  Some of these he agitated in proceedings in the CTTT (the Tenancy tribunal) leading to a deed of settlement in 2006.

Claims by Chan eventually included that, from the outset, the Department had wrongfully backdated his lease by one day, that officials had defamed him, and various matters concerning condition reports and smoke detectors.  In March 2008, Chan commenced proceedings against the Department.  In 2008 he also commenced proceedings against an officer of the Department for defamation (and other matters) in relation to a letter she had sent him about inspection of smoke alarms in his property.  Both proceedings were ultimately dismissed as hopeless by Justice McCallum in August 2009.

The train ticket subpoenas

On 22 January 2007, Rail Corp brought proceedings in Sutherland Local Court against Chan for allegedly travelling on a train without a ticket.  This led to satellite proceedings commenced by Chan in April 2008 against the Local Court (a magistrate had set aside a subpoena) and even (in December 2008) against an employee of Railcorp who had appeared for Railcorp in the proceedings against the magistrate to inform the court that Railcorp rather than the magistrate was the proper defendant – as a result of which Chan was permitted to amend his summons.  The proceedings against the Railcorp employee were dismissed in April 2009 and those against the Court (by which time the Attorney-General had also been joined) in September 2009.

Perry defamation

On 9 January 2009, Chan commenced proceedings against Ms Perry alleging conspiracy and defamation in a letter she had sent him in December 2007 from the office of the NSW Premier in response to letters from him complaining about certain conduct of the NSW Police Force and about certain legal proceedings.  These proceedings were dismissed by Justice McCallum on 27 November 2009 on the basis that Chan’s pleadings and draft pleadings disclosed no reasonable cause of action ( Chan v Perry [2009] NSWSC 1293). Along the way Chan made an application that Justice McCallum disqualify herself which she dismissed on 19 November 2009 ( Chan v Perry [2009] NSWSC 1278).

Police FOI case

On 30 December 2009, Chan applied to the ADT  for review of a decision by the NSW Police Force decision in respect of a decision it had made in a relation to a privacy complaint made by him in relation to its COPS records.  This application was ultimately dismissed for want of prosecution by Chan.

Constitutional objection to court fees

On 8 February 2010, Chan caused a summons to be issued from the High Court seeking a declaration that Schedule 1 of the Civil Procedure Regulation 2005 (NSW) (relating to court fees) was invalid.  On 10 May 2017 this came before Justice Heydon – transcript here.    Although Chan had failed to file a statement of claim as required by the rules, the case was remitted to the Federal Court.

In the Federal Court Chan also filed a notice of motion seeking that certain Local Court proceedings be stayed.  On 6 August 2010 Justice Perram dismissed that application and ordered that these proceedings be dismissed if Chan had not filed a statement of claim by 30 August 2010 and stayed until he did so.  Chan did file something but in March 2011 Perram J held that it was not a statement of claim and so the proceedings had been dismissed on 30 August 2010.

Local employment training solutions

On 17 May 2010, Chan commenced proceedings in the Federal Court for preliminary discovery against Mr Harris, an employee of Catholic Care Sydney, which operates the Local Employment Training Solutions (LETS) program. Preliminary discovery is a procedure where you can obtain documents relevant to a claim you might have in order to decide whether or against whom to bring it.  On the same day, Chan filed a statement of claim alleging that the report prepared by LETS and provided to Centrelink contained fraudulent and defamatory allegations and that those allegations were part of a conspiracy to injure him.  Both cases came before Justice Cowdroy for case management.

The application for preliminary discovery was ultimately dismissed for want of prosecution by Justice Cowdroy on 10 December 2010, but not before Chan had made an unsuccessful application that Cowdroy J disqualify himself because he had presided over a previous application by Chan in May 2009 for preliminary discovery.  Those proceedings were against Tran, an employment consultant to Centrelink, for documents relating to Chan.  Cowdroy J had made orders for preliminary discovery, Tran had produced some documents, Chan complained that production was incomplete and brought a notice of motion against Tran for contempt, Tran produced some more documents, Cowdroy J gave leave to Chan to withdraw the application for contempt and the proceedings were otherwise dismissed by Cowdroy J in June 2009.

Chan appealed against Cowdroy J’s refusal to disqualify himself and then against the final decision.  The appeals were ultimately dismissed (after various collateral issues were raised by Chan) by Justice Katzmann on 11 April 2011.  Chan instituted a fresh appeal which was dismissed by Justice Rares in May 2011.

By then, steps were underway to have Chan declared a vexatious litigant.  That will be the subject of the next post in this series.