[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: On 12 October 2018 Pembroke J, sitting in the Equity Division of the Court, made the following orders in Supreme Court proceedings 2016/96823 ("the 2016 Proceedings") between the present applicant for leave, Ms Biru Huang, and Mr Bernard Drumm ([2018] NSWSC 1556 at [68]):
"(a) I order that this proceeding be stayed pursuant to the inherent jurisdiction of the Court;
(b) I order that this proceeding be stayed pursuant to Section 67 of the Civil Procedure Act 2005 (NSW);
(c) I order that this proceeding be stayed pursuant to Section 17 of the Trans-Tasman Proceedings Act 2010 (Cth)."
His Honour's reasons for judgment indicate that he made Orders (a) and (b) because he concluded that the 2016 Proceedings (as well as other proceedings between the parties) were an abuse of process (see [43]). In reaching this conclusion, his Honour appears however to have relied almost wholly on his characterisation of Ms Huang's conduct, and that of a Mr Gibson, with whom she is associated, in relation to those other proceedings, rather than the 2016 Proceedings themselves.
Thus, in paragraphs [13] to [28] of his judgment, his Honour referred extensively to their conduct in other proceedings that he described as "the 2010 Proceeding", the "2015 Local Court Proceeding" and "wasteful interlocutory appeals" arising out of the 2015 Local Court Proceeding. When his Honour came to refer to the 2016 Proceedings he said that they had been "marred by wasteful interlocutory applications, including multiple contempt applications and allegations of criminal conduct by Ms Huang" (at [29]). However, none of the steps to which his Honour there referred appear to have been taken in the 2016 Proceedings. Rather, according to his Honour's description of them, they were taken in other proceedings, in the District Court, this Court and the Federal Court. One possible exception is encompassed by his Honour's statement that "on 4 October 2018 [Ms Huang] filed a notice of motion in the Common Law Division of this Court seeking to set aside the judgments and orders which were the subject of the bankruptcy notice [served on Ms Huang on 14 September 2018] in the sum of $84,644.82". The papers before us do not enable us to determine whether this notice of motion was purportedly filed in the 2016 Proceedings even though they were in the Equity, not Common Law, Division.
In these circumstances, it is strongly arguable that the evidence upon which his Honour relied did not establish that Ms Huang (or Mr Gibson) conducted the 2016 Proceedings in such a way as to render them an abuse of process.
As to the substantive aspects of the 2016 Proceedings, his Honour's conclusions included the following reference (at [41]) to the complaint which is the focus of those proceedings, namely that Mr Drumm, as trustee of a trust of which Ms Huang now claims to be trustee, negligently settled the 2010 Proceedings (at [41]):
"The wreckage that this ceaseless litigious warfare has caused is compounded because no reliable evidence is apparent to suggest that the foundational challenge by Ms Huang to the propriety of the settlement of the 2010 proceedings, to which Mr Drumm agreed at the court ordered mediation conference in Auckland, New Zealand in December 2014, is anything other than completely illusory - a fantasy, a chimera and a delusion. And the shameful procedural history of the litigation suggests that the prospect of ever reaching a final hearing on this issue is distant and remote."
On the present application, this Court is hampered by not having, at least in full, the material that was before his Honour. It does however appear to us to be at least strongly arguable that there was no, or insufficient, material before his Honour to have enabled him to reach his implicit conclusion that the 2016 Proceedings lacked an arguable foundation. Certainly, his Honour did not examine that question beyond making the observations quoted in [5] above. Moreover, it is arguable that, in the event that his Honour was correct in finding that there was no apparent "reliable evidence" of such a foundation, the occasion for Ms Huang to have produced that evidence to the Court had not arisen. The hearing before his Honour was not a final hearing, nor was it one of an application to strike out the statement of claim because it did not disclose a reasonable cause of action, nor was it one for summary judgment.
For these reasons, it is strongly arguable that his Honour's Orders (a) and (b), which were based on an abuse of process finding, were not properly made. If they were not properly made, the stay that his Honour granted under s 17 of the Trans-Tasman Proceedings Act would probably stand but if they were properly made, it would arguably not have been appropriate to grant such a statutory stay in respect of proceedings that had already been permanently stayed as an abuse of process.
In support of her application for leave to appeal, Ms Huang relied upon a 49 page draft notice of appeal. In it she raised a wide variety of other points to which, with one exception, we do not need to refer save to observe that they are not arguable and should not be the subject of a grant of leave to appeal.
We also observe that no persuasive argument has been put to us to suggest that the stay under the Trans-Tasman Proceedings Act, if considered on its own (that is, without considering that the proceedings had already been stayed as an abuse of process), was not within his Honour's discretion to grant. In particular, we reject Ms Huang's argument that if a party takes a step in proceedings (such as seeking further and better particulars), it is automatically precluded from obtaining a stay under the Trans-Tasman Proceedings Act. In these circumstances it is not appropriate to grant leave to appeal in respect of his Honour's order under that Act (Order (c)) save to the extent referred in Order 1(b) below.
For the reasons we have given, we make the following orders:
1. Grant Ms Huang leave to appeal against the judgment of Pembroke J of 12 October 2018, limited to the following grounds:
1. whether there was any proper foundation for his Honour to make orders under the inherent jurisdiction and s 67 of the Civil Procedure Act staying the proceedings before him on the ground that they were an abuse of process; and
2. whether, if his Honour's abuse of process orders were well founded, there was any proper basis upon which he could have granted a stay under s 17 of the Trans-Tasman Proceedings Act in relation to proceedings which were ex hypothesei an abuse of process.
1. Direct Ms Huang to file and serve within 14 days a notice of appeal limited to the precise issues identified in Order 1 above.
2. Direct that Ms Huang's appeal be listed at 9.30am on Monday 6 May 2019 before Payne JA for directions concerning the conduct of the appeal. The parties should expect that a date for hearing the appeal will be fixed at that directions hearing and orders made in preparation for that hearing.
3. Order that the costs of the application for leave to appeal be costs in the appeal.
[3]
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Decision last updated: 17 April 2019