Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan

Supreme Court of NSW|2014-02-24|Before: Schmidt J

Judgment 1These proceedings concern an allegation that Mr Chan was in contempt of the Local Court, when he refused to comply with an examination order the subject of proceedings before Atkinson LCM on 6 December 2011. 2The hearing was adjourned in September 2013, so that Mr Chan could be referred for pro bono legal assistance which he later received. In October 2013 the matter was listed for hearing in February 2014. That hearing proceeded with difficulty and disruption and has now adjourned to May 2014. 3On Friday 21 February 2014, Mr Chan did not appear but made a further adjournment application which was opposed and refused (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 4) [2014] NSWSC 114). The plaintiff then sought an adjournment, so that contact could be made with Mr Chan, to advise him that the hearing would proceed later that day. An attempt at contacting Mr Chan failed. Mr Chan himself did not approach to enquire as to whether his application had been granted. The hearing later proceeded in his absence. 4The plaintiff's witness Mr Oom, who was in cross examination, was then excused and the plaintiff's evidentiary case closed. A further adjournment was then sought and granted, so that Mr Chan could be informed that the hearing would proceed on Monday 24 February, when submissions would be heard. That advice, together with the plaintiff's outline of submissions were served on Mr Chan that evening. 5On 24 February, Mr Chan made an application to have the refusal of his adjournment application reversed. I refused that application (see Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan (No 5) [2014] NSWSC 119). Mr Chan then sought leave to amend a motion by which he had sought orders that the hearing be aborted. That leave was not opposed and Mr Chan then pressed the amended motion, in which he sought orders that: "1. This motion be returnable instanter. 2. The prosecution of this case 2012/350266 be transferred to the Court of Appeal. 3. If order 2 above is not granted, a declaration that this prosecution is an abuse of process and an order that this prosecution be stayed. 4. If order 3 above is not granted, the hearing of this case be aborted. 5. In the alternative, the hearing of this case be adjourned." 6The balance of the day, the last day of the four day hearing fixed, was then spent hearing that motion. Mr Chan tendered documents, gave oral evidence on which he was cross examined and made extensive submissions to support his application, which was opposed, other than as to an adjournment. The plaintiff finally did not oppose the adjournment of the hearing to May on the basis that Mr Chan would then have three days to put his evidentiary case, before the parties' submissions were heard. 7The consent was forthcoming after Mr Chan clarified that while he would prefer an indefinite adjournment, what he was pressing for was a relatively short adjournment in light of his assessment that the hearing would complete in four further days. I refused Mr Chan's application that the further hearing be conducted either one day a week, or with a day between each hearing day, because, Mr Chan explained, of his tiredness and his difficulties in organising himself, but granted the adjournment. I also refused to refer the matter to the Court of Appeal, to stay the proceedings or to abort the hearing. 8The further hearing is listed on the basis that Mr Chan will put his evidence on 12 to 14 May and that the submissions will be heard on 16 May. 9I finally refused Mr Chan's application that he be given 10 further days to file further written submission in support of his motion, which was made only after I had already announced my decision in relation to the matters over which the parties had joined issue. 10These are the reasons for the decisions which I reached.

Referral to the Court of Appeal 11This and the other applications which Mr Chan pressed were supported on various grounds, none of which were articulated in his motion or the supporting affidavit on which he relied, but were revealed only in his submissions. Mr Chan also relied on what he had advanced in support of earlier adjournment applications. 12Mr Chan contended that the Court had power to transfer these proceedings to the Court of Appeal, notwithstanding that s 53(4) of the Supreme Court Act 1970 (NSW) assigns to the Common Law Division "proceedings for contempt of the Court or of any other court". What is assigned to the Court of Appeal is dealt with in s 48(2)(i), namely proceedings: "(i) for the punishment of contempt of the Court, but only if the contempt consists of: (i) contempt in the face of, or in the hearing of, the Court of Appeal, or (ii) disobedience of a judgment or order of the Court of Appeal, or (iii) breach of an undertaking given to the Court of Appeal, including proceedings in which the Court of Appeal is constituted by an associate Judge." 13On Mr Chan's approach the Court had the inherent power to make the referral he pressed, which would be exercised in this case for reasons which included that he preferred these proceedings to be dealt with by three judges, given their seriousness; that he preferred the Court of Appeal's procedures; that he considered that conclusions of law reached in cases decided by the Court of Appeal were clearer and less ambiguous than those reached in trials before single judges of the Court; and that he wished to have these proceedings decided by three judges experienced in criminal law, which would make him feel safer, given concerns which he had reached as to the conduct of these proceedings. 14While s 54 of the Supreme Court Act provides a transfer power, justice would not permit its exercise in this case, even were it to be concluded that s 48 and s 53 did not require that proceedings such as this be heard and determined at first instance at a trial conducted before a single judge of this Division. The proceedings were commenced in this Division by summons, in accordance with the requirements of the Supreme Court Act and Supreme Court Rules. What is alleged against Mr Chan is contempt of the Local Court. The matter is part heard. Justice plainly requires that it now be dealt with to finality, notwithstanding that Mr Chan has a preference for having the matter dealt with by the Court of Appeal, for the reasons which he explained. 15Mr Chan also supported his application on the basis of his perception that I was not competent to deal with the matter, given my reference to the provisions of the Civil Procedure Act 2005 (NSW) and Uniform Civil Procedure Rules 2005 in my refusal of one of his adjournment applications. Mr Chan submitted that all applications which he makes in these proceedings must be determined by reference to what justice demands and that the other considerations provided for in s 56 of the Civil Procedure Act are irrelevant. 16On Mr Chan's approach not only was I in error in taking into account considerations which apply to civil proceedings which are imposed by s 56 of the Civil Procedure Act, namely the just, quick and cheap resolution of the real issues in the proceedings, but that this had revealed an unfamiliarity with the criminal law, which in his experience was commonplace amongst judicial officers. In the result, he preferred that this matter be dealt with by three judges experienced in criminal law. 17In my view, my error in relation to this procedural matter, if it was one, is not a proper basis for referring the matter to the Court of Appeal, or for acceding to any of Mr Chan's other applications. It is clear that the overriding purpose specified in s 56, the just, quick and cheap resolution of the real issues in the proceedings, does not guide the exercise of the discretion to grant an adjournment, if the Civil Procedure Act does not apply to these proceedings. It does not follow, however, that justice does not permit any consideration to be given to the way in which the proceedings are being conducted by the applicant for an adjournment application. To the contrary, justice requires that all relevant matters be considered, including the subject matter of the proceedings, how they are being conducted, the attitude of the parties to the application and the consequences of the application, including the cost and delay which might result if the application is granted. 18While it is well settled that the Crimes (Sentencing Procedure) Act 1999 (NSW) applies to sentencing for any contempt which is to be punished by a custodial sentence, whether alleged contempt is civil or criminal in nature can be difficult to properly characterise, as White J discussed in ASIC v Sigalla (No. 4) [2011] NSWSC 62; (2011) 80 NSWLR 113 . The nature of the contempt alleged in a particular case can have an impact, however, on the procedures which apply to the proceedings. 19Whether the contempt alleged against Mr Chan is civil or criminal has arisen for consideration in the context of whether the provisions of the Civil Procedure Act apply to these proceedings. 20The plaintiff has submitted from the outset that the contempt alleged against Mr Chan must be proven to the criminal standard, in accordance with long settled principle (see Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; (2001) 122 A Crim R 166 at [32] - [33]). 21Part 55 of the Supreme Court Rules, which deals with procedure generally, applies to all contempt proceedings brought in this Court. It does not distinguish between civil or criminal contempt, nor does it specify that either the Civil Procedure Act or the Criminal Procedure Act 1986 (NSW) applies to such proceedings. It provides that proceedings for contempt not committed in connection with proceedings in this Court be brought by summons (Rule 55.6); that there be a statement of charge filed (Rule 55.7); that evidence in support of the charge be given by affidavit (Rule 55.8) and that the summons and affidavit be served personally (Rule 55.9). 22In John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351 it was observed at [10] that: "It is necessary, as Sir John Fox says, to begin by distinguishing between different kinds of contempt of court. A party disobedient to the order or process of a court is often said to be "in contempt". In these cases each court has its own appropriate means of enforcement, and such "contempts" are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes - contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (i.e. without conviction by a jury) by the court before which the contempt is committed." 23Whether the contempt alleged against Mr Chan is civil or criminal contempt also depends on whether the orders sought by the plaintiff are punitive or remedial (see Hearne v Street [2008] HCA 36; (2008) 235 CLR 135). Proof of criminal contempt requires the plaintiff to establish that the conduct in question involves deliberate contumacious disregard or defiance of a court's order (see Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525). 24In this case, it appears, given the nature of the conduct alleged to amount to Mr Chan's contempt in the face of the Local Court, that he faces an allegation of criminal contempt, notwithstanding that this conduct occurred in civil proceedings. From the submissions which Mr Chan advanced in support of his various applications, even though he defends the contempt charge, it does not appear that the conduct alleged is in issue. His case rests on other matters. 25In ASIC v Sigalla (No. 4) White J concluded that the necessary implication of Rule 1.7 of the Uniform Civil Procedure Rules was that those Rules would apply to at least some charges of contempt (at [43]), but that they did not apply to allegations of criminal contempt. His Honour reached that conclusion taking account of the conclusion which Howie J reached in Director of Public Prosecutions (Commonwealth) v Sexton [2008] NSWSC 352 (at [8] - [12]), that proceedings for contempt are governed by the Supreme Court Act and the Supreme Court Rules and that even a prosecution for criminal contempt, although dealt with summarily, does not fall within the summary jurisdiction of this Court, to which Chapter 4 of the Criminal Procedure Act or Pt 75 of the Supreme Court Rules apply. 26The Criminal Procedure Act defines an offence to be "an offence against the laws of the State" (s 3). Section 28(1) provides: "28 Application of Part and definition (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with." 27If the Criminal Procedure Act did apply to these proceedings, as to adjournments, it also provides for a discretion in the widest terms: "40 Adjournments generally (1) A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so. (2) An adjournment may be in such terms as the court thinks fit." 28In reaching his conclusions White J observed that Howie J's reasons for his conclusion in relation to the Criminal Procedure Act were compelling (at [46]). Howie J's conclusion is also supported by the view taken in Athens v Randwick City Council [2005] NSWCA 317 at [89] where Hodgson JA observed: " In my opinion, Witham v Holloway makes it clear that the procedure in contempt proceedings is not the same as in a criminal trial." 29White J also referred to other authorities which shed some light on the procedures to be followed in contempt proceedings to which these statutory procedural regimes do not apply. 30In Re Colina; Ex parte Torney [1999] HCA 57;(1999) 200 CLR 386, Hayne J observed: "[109] Although I accept that it is right to speak of an "offence" of contempt, the use of that term should not be permitted to obscure the significant differences between the powers that are invoked against an alleged contemnor and those that are set in train under the criminal law. As was said in Hinch v Attorney-General (Vict) [(1987) 164 CLR 15 at 89]: "Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event." The power to punish for contempt is an inherent power of courts charged with "the function of superintending the administration of justice" [Porter v The King; Ex parte Yee (1926) 37 CLR 432 at 443] per Isaacs J. It is a power that is invoked sparingly but in a very wide variety of circumstances. There are, in that sense, many forms of contempt; there is no single "offence" of the kind that the criminal law knows. [110] What must be proved before a court punishes for contempt will vary from case to case. In particular, what must be shown about the alleged contemnor's intention can vary greatly. Although it may be that all forms of contempt are rooted in the need to protect the due administration of justice, some forms of contempt (like wilful disobedience of an order) are concerned more with the administration of justice in a particular case than other forms of contempt (like scandalising the court) which may be seen as more concerned with the general administration of justice. Traditionally this was taken to suggest a distinction between civil and criminal contempt. But the difficulty of distinguishing between proceedings for contempt that are proceedings intended to have a remedial, rather than coercive, effect was noted by the Court in Witham v Holloway [(1995) 183 CLR 525]. The Court concluded in Witham that all forms of contempt required proof beyond reasonable doubt, and four members of the Court concluded that the distinction between civil and criminal contempt was based upon differences that are "in significant respects, illusory" [Witham v Holloway (1995) 183 CLR 525 at 534] per Brennan, Deane, Toohey and Gaudron JJ.). But this conclusion does not deny that the kinds of conduct constituting contempt are many and varied and does not deny that the elements to be established to prove an alleged contempt differ according to the nature of the allegation." 31In Hearne v Street, Gleeson CJ (at 130 - 131) said that: "The second issue goes to jurisdiction. It turns upon the meaning and effect of s 101(5) and (6) of the Supreme Court Act. Those provisions came into effect in 1997. The evident purpose of sub-s (6) was to reflect, in the area of contempt, the general reluctance of the law to permit prosecution appeals against acquittals in criminal proceedings [See R v Hillier (2007) 228 CLR 618 ; [2007] HCA 13.]. The distinction between civil and criminal contempt is in some respects unsatisfactory, but the Supreme Court Act adopts the distinction for jurisdictional purposes, and therefore it must be applied. The question is whether, on the true construction of s 101 of the Act, the present case falls on the civil or the criminal side of the line. I agree with Hayne, Heydon and Crennan JJ, for the reasons they give, that this is a case of civil contempt, and that the second issue should be decided in favour of the respondents [See also Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 310 per Lord Scarman.]." 32This is a distinction no longer drawn in s 101(5) of the Supreme Court Act, which now provides: "(5) An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court." 33A distinction is still, however, drawn in s 101, which permits the Attorney General to submit questions of law to the Court of Appeal only in cases of criminal contempt. 34In Witham v Holloway it was observed (at 534): "Moreover and, perhaps, of more importance, nothing is achieved by describing some proceedings as 'punitive' and others as 'remedial or coercive'. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking. The differences upon which the distinction between civil and criminal contempt is based are, in significant respects, illusory. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch , that all proceedings for contempt 'must realistically be seen as criminal in nature'. The consequence is that all charges of contempt must be proved beyond reasonable doubt." 35In Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15, it was observed (at 89-90): "... Notwithstanding that a contempt may be described as a criminal offence, the proceedings do not attract the criminal jurisdiction of the court to which the application is made. On the contrary, they proceed in the civil jurisdiction and attract the rule that ordinarily applies in that jurisdiction, namely, that costs follow the event. There are many instances of the application of this rule to cases of contempt of court in this Court, including Consolidated Press Ltd. v. McRae (1955) 93 CLR 325, John Fairfax & Sons Pty Ltd v McRae (1955) 93 CLR 351, James v Robinson (1963) 109 CLR 593 and Doyle v The Commonwealth (1985) 156 CLR 510: see also R v Taylor; Ex parte Roach (1951) 82 CLR 587." 36In the result the plaintiff submitted that the Civil Procedure Act and the Uniform Civil Procedure Rules did not apply to these proceedings, but that the principles which governed Mr Chan's adjournment applications were similar. I accepted that submission, taking the view that in the event that I did err in the account I had taken of requirements of the Uniform Civil Procedure Act and Rules, Mr Chan had suffered no prejudice, because the result would have been the same, had the applicable principles been applied. 37That followed because if neither the statutory regulation of criminal nor civil procedures regulates the conduct of contempt proceedings such as this, then some principled approach must still be adopted to their conduct, in accordance with applicable common law principles. That must necessarily involve the applicant bearing the onus of establishing an evidentiary basis for contested applications which he or she makes in the proceedings and demonstrating that justice demands that the application be granted in the circumstances prevailing. 38That requiring Mr Chan to meet such an onus in the case of a contested adjournment application or having fallen into the error of which Mr Chan complains involves incompetence on my part, which would warrant any of the orders he sought being granted, cannot in the circumstances be accepted. 39Mr Chan certainly did not seek to establish that a different conclusion would have resulted, had the correct principles been applied to his adjournment application. Had he advanced such a submission, it would have had to have been rejected, given the circumstances in which his adjournment application was made and rejected. 40In the result his application for transfer of the proceedings to the Court of Appeal had to be refused.

The vexatious proceedings order 41Mr Chan was declared a vexatious litigant by order made by Adamson J in Attorney General v Chan [2011] NSWSC 1315. He submitted that the consequence of this order had been to prevent him from pursuing his ordinary approach to litigation in which he has been involved in the past, which was to issue many subpoenas. In the result he could never have a fair opportunity to defend these proceedings, unless that order was set aside or stayed. He wished to pursue such an application before the Court of Appeal. 42Mr Chan foreshadowed making such an application last year. He did not do so for various reasons which he explained included the injury he suffered to his knee in November 2013; the time of year; being distracted by actions taken by the conspirators who had been targeting him for many years, to which I will return; and having other priorities which he had to attend to, including his pursuit of freedom of information applications in relation to the reasons for the refusal of his legal aid application. 43None of these matters provide any basis for any of the orders which he seeks. Mr Chan has not pursued steps he foreshadowed to have the orders he complains about stayed or set aside. Unless that occurs, those orders bind him. Their impact is not a basis upon which any of the orders which he sought in these proceedings could be made.

Aborting the hearing 44This application was supported by the grounds I have already dealt with, together with allegations of bias and denial of natural justice. 45It seems that Mr Chan was alleging apprehended bias, given his various explanations, which included that my refusal of his various adjournment applications and the way I had refused to allow him to conduct his case uninterrupted as he desired, had given rise to a concern on his part that he was not being given a fair opportunity to defend himself, that I was biased against him and was making decisions for convenience, rather than justice. 46He also submitted that my approach had been inconsistent, given the attention I had paid to the fate of the various applications which he had made in these proceedings, but that I had not paid similar regard to the fate of other proceedings in which he had been involved since 2005.

Natural justice 47While Mr Chan accepted that the power to grant an adjournment is discretionary, he complained that he had been denied natural justice and that the adjournment which had been refused on 21 February 2014 had worked a manifest injustice, relying on Director of Public Prosecutions (NSW) v Yeo and Anor [2008] NSWSC 953, where Johnson J observed at [53] - [54]: "53 In Nitiva v Director of Public Prosecutions [1999] NSWCA 332, the Court of Appeal (Sheller and Beazley JJA, Cole AJA) observed at [64], in the context of a claim of denial of procedural fairness by a refusal to adjourn criminal proceedings: "The principles upon which an adjournment ought to be granted are well established. The court has a discretion to grant or refuse an adjournment. However, a refusal to grant an adjournment can, in certain circumstances, constitute a denial of procedural fairness: see Sullivan v Department of Transport (1978) 20 ALR 323. As Deane J said in that case at ALR 343 'it is important to remember that the relevant duty of [the court] is to ensure that a party is given a reasonable opportunity to present his case'. In our opinion, the claimant was not given that reasonable opportunity." 54 In Blazevski v Judges of the District Court, Kirby P (as his Honour then was) said at 200: "Courts providing judicial review to rectify departures from the requirements of procedural fairness will likewise give relief for departures from such requirements which will have been taken by the trial court outside the proper exercise of its jurisdiction. In criminal cases, they will do so where the injustice has been done to the prosecution as well as to the accused." 48Natural justice requires in broad terms that Mr Chan be given a reasonable opportunity to understand the case brought against him and to present his own case, while being afforded procedural fairness and being heard by an impartial judge. It does not require that he make best use of the opportunities which he is given to advance his case, or that he be permitted to present his case unhindered, in whatever way he wishes, or that every application which he makes be granted. As Johnson J observed, the plaintiff must also be afforded justice. A great part of the time allocated for this hearing has been spent in dealing with Mr Chan's repeated adjournment and other applications, some, but not all of which were refused for reasons given. 49Mr Chan complained that the refusal of his adjournment application on 21 February and the refusal to reverse that decision on 24 February had denied him the opportunity to continue his cross-examination of Mr Oom and that justice required that he have that opportunity. I have given reasons for the refusal of both applications, not accepting that the evidence on which he relied established that he had sought the adjournment because of a medical emergency. That Mr Chan was thereby denied natural justice has not been established. Mr Chan took a risk of which he was well aware, that if he did not attend Court on 21 February because his knee was sore and the further adjournment application which he made by written request sent by facsimile was refused, his failure to attend for the hearing would have the result about which he now again complains. That this risk has materialised does not demonstrate either a denial of natural justice or bias. 50Mr Chan has been given every reasonable opportunity to present his case. The desirability of him remaining while the case proceeds and the risk which he would run if he did not appear, were explained to him. The refusal to grant one of his applications had the result that he lost the opportunity to conclude his cross-examination of Mr Oom, on whose evidence the plaintiff's case rests. In the circumstances, that Mr Chan was thereby denied procedural fairness or a reasonable opportunity to present his case, was not established. 51Mr Chan also relied on In the Marriage of David John and Mei Yu Collins (1990) 14 Fam LR 162, to submit that limits imposed upon him in the presentation of his case were arbitrary, so as to deny him natural justice and to require a retrial. This was a civil case where a time limit had been imposed on certain evidence. It was observed in that case at 175: "In ordinary circumstances the imposition of an arbitrary limit upon the presentation of a party's case would amount to such a fundamental denial of natural justice as to lead inevitably to an order for a retrial. The general supervisory jurisdiction of this Court of Appeal in respect of proceedings in its court would normally require it to intervene in such a case." 52There it was also observed at 174, however, that: "A judge in the conduct of a civil proceeding has a wide range of powers open to him or her to ensure that the conduct of the case by the parties and their representatives remains relevant to the matters in issue and that a party does not, for whatever reason misuse the proceeding by repetitious questioning, the unnecessary calling or challenging of evidence or other conduct which falls outside a proper ambit of the presentation of that party's case so that it becomes, for whatever cause, unreasonable and burdensome. In ordinary circumstances that would be achieved by the disallowance of particular questions or a line of questioning, the disallowance of proffered evidence and in extreme circumstances a clear intimation that a party will be stopped from persisting in such conduct, and the enforcement of that intimation if it becomes in the final resort necessary to do so. The power to order costs, including costs on a solicitor/client basis, may provide a useful deterrent in many cases." 53In this case no arbitrary time limits were imposed on Mr Chan, although his repetitive evidence and submissions in relation to various applications were sometimes brought to an end, in some cases eventually by reference to time which had been taken in the pursuit of his submissions and by giving him further time to put any different points which he wished to advance. 54In some instances Mr Chan sought to give oral evidence about matters about which he could certainly make submissions, as was explained to him, but which he could not advance by way of evidence. For example, I refused to allow Mr Chan to give evidence by way of a running commentary on parts of judgments which had been given, which he considered to be either factually correct, or misleading. He was, however, permitted to give evidence about matters which he thought were factually incorrect and to make submissions about those judgments and how they supported the case which he advanced. 55The necessity to so control these proceedings arose from the way in which Mr Chan conducted them. No arbitrary limits were imposed upon him. To the contrary, he has been given a fair opportunity to advance his case and the various applications he has made.

Bias 56In 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. 57In 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." 58In 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." 59In 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. 60Mr 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. 61Other 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. 62Mr 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. 63Initially 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. 64In 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. 65That 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.

Stay of the proceedings for abuse of process 66Mr Chan has given quite extensive oral evidence and has repeatedly explained in his various submissions that he believes that he is the victim of a longstanding, wide-ranging conspiracy involving neighbours who are drug dealers, corrupt officers of various Government Departments, including the Department of Housing, his landlord, as well as persons employed in the Court's Registry, and by the Crown Solicitor. He considers that this conspiracy continues, despite the many complaints he has made to many persons and authorities over many years about activities which the conspirators pursue to harass him and advance their conspiracy. He claimed that this was evidenced, for example, by a settlement of various proceedings in which he had been involved. He also claimed that these conspirators had sought to distract him from preparing for this hearing, by taking steps in 2008 proceedings which had been stayed. 67Mr Chan also believes that these contempt proceedings are being pursued for an ulterior motive, which he explained to be to ensure that his public housing tenancy is terminated, so that corrupt persons employed by the Department of Housing and the drug dealers with whom they are involved can use his home for the drug dealing being pursued in his neighbourhood unchecked. 68The abuse of process which he alleged was also explained by reference to the submissions which he had advanced in the Local Court in February 2011, which were annexed to Mr Oom's affidavit. In February 2011 he explained why the examination order which he later refused to comply with was improper and unlawful. His case rested on arguments that the TAFE Commission had never had the costs it pursued assessed according to law; that the cost assessment process which it had pursued was also unlawful and invalid, having been fraudulently undertaken by the costs assessor Mr Lancken, which he intended to prove by pursuit of subpoenas yet to be issued; that the costs assessment relied on had not been properly served, service having been deliberately affected at an address at which he did not reside; that he had not yet exhausted his appeal rights in relation to the 2005 proceedings to which the costs assessment related; that the TAFE Commission's pursuit of the invalid costs assessment involved an abuse of process; that the examination order had been fraudulently obtained; and that the TAFE Commission's case rested on affidavits which were not truthful. 69In the result, Mr Chan considers that these proceedings are not valid and involve an abuse of process. 70None of these matters establish that these proceedings are an abuse of process. 71The plaintiff accepts that if Mr Chan can establish that the examination order is invalid, then its summons must be dismissed. As the plaintiff submitted however, it does not follow that because Mr Chan claims that the examination order is invalid that the pursuit of these proceedings is an abuse of process. That is in issue and will be determined on the evidence. 72Nor can Mr Chan's claim that the abuse of process which the plaintiff is pursuing is evidenced by attempts made to ensure that he does not obtain legal aid, be accepted. 73Mr Chan explained that his pursuit of legal aid, he envisaged, would require him to institute legal proceedings to pursue freedom of information applications which he has already made, but were hampered by his lack of financial resources, which included only a $20 monthly photocopying budget. Thereby he has been seeking to pursue an explanation of the reasons for the refusal of his legal aid application. He considered that ideally, these proceedings would be stayed until he had exhausted those avenues. 74That these matters have anything to do with the plaintiff, was not established, as Mr Chan himself finally accepted. 75When pressed to explain what adjournment he was seeking, Mr Chan said while he would prefer an indefinite adjournment while he pursued the litigation he had foreshadowed he would pursue as to the reasons for the refusal of his legal aid application, he would accept a short adjournment so that he could put on his evidence and make his submissions. 76When this is considered together with the plaintiff's support last year for Mr Chan's referral for pro bono legal assistance and the adjournment of the hearing while that was pursued, assistance which he later received, but rejected, that the plaintiff has sought to prevent him obtaining legal assistance in relation to these proceedings, can not be accepted. 77The abuse of process which Mr Chan alleged is also not evidenced by his view that it is an abuse to seek to enforce what he perceives to be an ongoing, longstanding injustice. That submission rested variously on the injustice he perceived he had suffered from being prevented from appealing the 2005 judgment in which the claim he first brought against the TAFE Commission was dismissed. He considers that decision was wrong and that it has never been the subject of any proper examination. That, he explained, was the result both of having been refused an application for fee waiver and as the result of the consequences of the vexatious proceeding order made against him. This has ultimately resulted in the TAFE Commission's pursuit of a costs order and the examination order pursued in the Local Court, which was the genesis of these proceedings. 78Mr Chan contends that while recovery of the costs ordered against him is ostensibly legal in the circumstances, the pursuit of costs which he is not liable for, is not. In the result it was an abuse of process to enforce the injustice which has been visited upon him. 79These opinions, variously explained, also do not establish the abuse of process for which Mr Chan contends and did not establish a just basis upon which the stay contended for could be granted. 80In the result the hearing was adjourned so that Mr Chan could lead the evidence on which he wishes to rely at the adjourned hearing in May, in order to establish an evidentiary basis for the case he has explained he wishes to advance, to resist the orders which the plaintiff seeks.

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(1990) 14 Fam LR 162

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