[1982] HCA 51.
University of Wollongong v Metwally (No 2) [1985] HCA 28
(1985) 59 ALJR 481
Source
Original judgment source is linked above.
Catchwords
[1982] HCA 51.
University of Wollongong v Metwally (No 2) [1985] HCA 28(1985) 59 ALJR 481
Judgment (9 paragraphs)
[1]
Background
The background to the application is as follows. The applicant suffers from schizophrenia. From 2005 the respondent was her treating psychiatrist. In October 2010 the applicant suffered personal injury when she fell or jumped from a balcony. In 2013 she commenced proceedings in the District Court against the respondent asserting that her injury was attributable to negligence in the treatment he had afforded her. A trial took place in the District Court in 2016. The applicant appeared unrepresented, assisted by her mother. Both have only limited facility in the English language.
The applicant's claim was dismissed (Chao (Isabel) Huang v Dr Kam S Wong, District Court of NSW, unreported, 3 November 2016). She filed a notice of appeal in this Court. The grounds of appeal on which she proposed to rely were set out in an accompanying affidavit sworn by the applicant that extended over 66 closely typed pages. She also relied on an affidavit sworn by Ms Liao on 5 January 2018 that, with annexures, extended over more than 200 pages. Among her many contentions on the appeal were allegations of serious misconduct on the part of the primary judge, her staff, and the legal representatives of the respondent. She asserted that the primary judge and her associate had connived with the legal representatives of the respondent who had fraudulently tampered with documents produced on subpoena for the trial.
The appeal was fixed for hearing on 18 April 2018. On 9 April 2018 the applicant filed a notice of motion, seeking three orders to the following effect (to paraphrase):
(i) that the respondent's legal representatives withdraw from further representing him;
(ii) that the date fixed for hearing of the appeal be vacated; and
(iii) that the Registrar of the court arrange pro bono legal representation for her to conduct the appeal.
In relation to the first order sought, the disqualification of the respondent's legal representatives, the applicant relied on rules of professional conduct relating to solicitors and barristers made under the Legal Profession Uniform Law (NSW). She specifically referred to rules concerning conflicts of interest. In relation to the third order sought the respondent relied on a referral for pro-bono legal assistance made by the President on 13 February 2017. The second order sought, adjournment of the hearing of the appeal, depended upon one or both of orders (1) and (3).
The notice of motion was listed for hearing on 18 April, the date fixed for the hearing of the appeal. The appellant again appeared unrepresented, but assisted by her mother, Ms Liao. The court spent some time identifying the evidentiary material upon which the applicant wished to rely in support of the orders sought in the notice of motion. After considering that material, and the argument advanced on behalf of the applicant by her mother, it determined unanimously that the notice of motion should be dismissed in all respects and that the appeal should proceed. The President advised the applicant of that decision, and said that reasons would be given in conjunction with the determination of the appeal.
Ms Liao then presented to the court a further notice of motion and affidavit, also dated 9 April, but which had not previously been filed or served. By the notice of motion, she sought leave to withdraw the notice of appeal. The President advised the applicant that if she withdrew the notice of appeal the appeal would be concluded and the District Court judgment remain in effect. Ms Liao confirmed that the applicant understood that position. Ms Liao then read aloud from the applicant's affidavit, protesting at what she called the "unfairness, injustice, abuse of judicial power and criminal offences" she claimed to have witnessed in the District Court, and the "unfairness and [in] justice and abuse of power" she claimed to have suffered in this Court. Ms Liao then made a further statement to the court in which she again asserted that the primary judge and her associate and the respondent's legal representatives had tampered with the documents produced on subpoena in the District Court.
Rule 51.56 of the Uniform Civil Procedure Rules deals with discontinuance of proceedings in this Court. Relevantly, it provides:
"(1) The initiating party in any appeal proceedings may discontinue the proceedings by filing a notice of discontinuance and serving it on each respondent who has been served with the relevant notice of appeal or summons seeking leave to appeal.
…
(6) This rule does not limit the operation of rule 12.1 in relation to proceedings in the Court.
(7) The discontinuance of appeal proceedings does not require the consent of any respondent or the leave of the court.
(8) Rule 42.19 applies to the discontinuance of appeal proceedings under this rule in the same way as it applies to the discontinuance of proceedings under rule 12.1."
Rule 12.1 deals with discontinuance of claims in the Supreme Court. Rule 42.19 deals with the costs of discontinued proceedings in the Supreme Court. By rules 51.1(3) and (4) both apply, with appropriate modifications, to proceedings in this Court. Specifically, the effect of rule 42.19(2) is that, unless the court orders otherwise or the parties agree, the plaintiff (here, the applicant) must pay such of the defendant's (here, the respondent's) costs as have been incurred to the date of discontinuance.
As rule 42.19(2) gives a prima facie right to the respondent to an order for costs on discontinuance of the appeal, the question of costs was raised. Counsel for the respondent initially sought an order for costs in his favour but, after discussion and taking instructions, he withdrew that application. Notwithstanding the discontinuance of the appeal, the applicant sought reasons for the determination on the notice of motion. The court then announced the following orders:
"1. Note that appeal proceedings number. 2016/351845 are discontinued;
2. Dispense with the requirements of the rules that the appellant file a notice of discontinuance;
3. Order otherwise for the purposes of UCPR 42.19 in relation to costs to the effect that the appellant is not liable for any costs of the respondent on the appeal;
4. The appellant's notice of motion filed on 9 April 2018 is dismissed;
5. The court reserves its reasons on the dismissal of the notice of motion."
The reasons for the orders dealing with the 9 April 2018 notice of motion were given on 7 May 2018, by the judgment referred to above. The court held, in brief, that no proper basis for the disqualification of the respondent's legal representatives had been made out and the applicant had misconstrued the purpose of the rules of professional conduct for solicitors and barristers concerning conflict of interest made under the Legal Profession Uniform Law, on which she relied. It held, further, that the possibilities of obtaining pro bono legal representation had been exhausted and that no basis existed for making an order of the sort claimed as order 3. That being the case, there was no reason to make the second order sought, vacating the date fixed for the appeal.
[2]
The evidence relied on by the applicant
The applicant's evidence on the notice of motion was presented in an affidavit affirmed by her on 18 May 2018.
[3]
(i) the application to set aside the "judgment"
The content of the applicant's affidavit was, in substance, an attack on the reasoning in the reasons for judgment of 7 May 2018. She maintained her allegations concerning tampering documents in the District Court. She complained that this Court ignored evidence before it in relation to the allegations of tampering. (This was a matter that had been raised in the notice of appeal, but had been abandoned with the discontinuance of the appeal.)
The applicant challenged the finding that the professional conduct rules had no application. She asserted that the dismissal of the notice of motion:
"…was not only serious abuse of judicial power but also violation of human rights, including equality under the law, rights to fair hearings and natural justice"
and that the Court was biased against her.
[4]
(ii) the application for release of the sound recordings
The applicant in her affidavit gave some explanation for seeking what she called "duplicate sound recordings" of proceedings in this Court. It seems that she wishes to have access to the audio tapes for the purpose of making complaints about the Court to the Judicial Commission of NSW, the Independent Commission Against Corruption, and the Legal Services Commission. She asserted (incorrectly, as the transcript discloses) that:
"The contemporaneous recording for 18/04/2018 is the evidence to prove that, after the appellant's protest (orally and in writing), Justice M Beazley President immediately discontinued the appeal proceedings."
[5]
(i) Respondent
It is convenient to commence with the respondent's submissions. The written submissions filed on his behalf were succinct. As indicated, he did not take a position in respect of the second order sought. In respect of the first, he argued against an order setting aside the 7 May judgment (or the 18 April orders) on the basis that such an order would lack utility, since the applicant would remain bound by the discontinuance of the appeal. Further, the respondent argued, no basis had been demonstrated for setting aside the orders, and the applicant had not established any relevant irregularity, illegality or want of good faith, on which an order under UCPR 36.15 depends. The respondent relied on authorities concerning the public interest in maintaining the finality of litigation; see University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; State Rail Authority of NSW v Condelfa Construction Pty Ltd (1982) 150 CLR 29 (at 38); [1982] HCA 51.
[6]
(ii) Applicant
The submissions filed on behalf of the applicant had been prepared by Ms Liao. She invoked various authoritative texts concerning judicial conduct and procedural fairness. She argued that judgment on the notice of motion ought to have been given prior to the date fixed for the hearing of the appeal "because it was of decisive importance" about whether the appeal hearing should proceed on 18 April. She again raised the issue of tampering with documents.
[7]
(i) the application to set aside the judgment
To begin with, it may be observed that it would have been preferable for the application for disqualification of the respondent's legal advisers to have been determined prior to the date fixed for hearing of the appeal. Since the application was filed only 9 days (7 working days) prior to the hearing date that could not be achieved. Administrative arrangements in the court are such that it may be assumed that all hearing time during that period had been fully allocated. It was the lateness of the filing of the notice of motion that precluded an earlier determination. Had there been any basis for such an order, it would inevitably have resulted in vacating the hearing date of the appeal. However, as no such basis was established, no harm was done by the hearing of the application on the same date as the date fixed for hearing of the appeal.
The same may be said of the application for the Court to make arrangements for pro bono representation of the applicant. Had there been any basis for that, again, it would have been appropriate to have vacated the hearing date. There being no such basis, again, no injustice was caused by the course taken.
The notice of motion having been dismissed, there was no obstacle to the appeal proceeding. The appeal books had been prepared and the parties had filed submissions.
The statutory basis for the present application is, as noted above, UCPR 36.15(1). That rule requires, before an order can be made, that "sufficient cause [be] shown" by reason of irregularity, illegality or want of good faith. The irregularity, illegality or want of good faith must necessarily be in the procuring of the judgment or order sought to be set aside.
The primary conduct of which the applicant now complains occurred, she asserts, in the District Court. The allegation gave rise to one of the grounds of appeal, but, because the appeal was discontinued, the allegations were never examined.
Much of the remainder of the applicant's submissions is directed to assertions of error in the reasons for judgment of 7 May. It is inappropriate to ask this Court to sit, in effect, on an appeal from itself. The application is, in this respect, an attempt to relitigate issues that were decided on 18 April, for which reasons were given on 7 May. Moreover, there are some suggestions in the affidavit and the written submissions that this Court itself was engaged in some form of misconduct. It is, of course, wholly inappropriate for this Court to be asked to determine serious allegations about itself.
No irregularity, illegality or want of good faith has been demonstrated either in the making of the orders of 18 April or in the reasons for judgment of 7 May.
The applicant has demonstrated no basis for setting aside either those orders or the reasons for judgment. The first order sought should be refused.
Moreover, the respondent is correct in his contention that setting aside the judgment or the orders would lack any rational purpose. To do so would not reinstate the discontinued appeal.
Examination of the orders sought by the applicant in the 9 April notice of motion reveals the futility of the present application. This Court dismissed the application for disqualification of the respondent's legal representatives, for orders that would effect pro-bono legal representation of the applicant, and for vacation of the date fixed for hearing of the appeal. On the discontinuance of the appeal there were no relevant proceedings in which the respondent was represented by his legal representatives; there was no appeal in which the applicant required pro-bono representation; and there was no appeal that could be adjourned.
[8]
(ii) the sound recording
The second order sought by the applicant is for the release of sound recordings of various proceedings in this Court between 14 February 2018 and 18 April 2018. The applicant stated that she has had access to some of those recordings. Court records show that the Registrar had already authorised the release of the sound recordings of 14 February 2018 and 16 April 2018, and of a directions hearing on 19 July 2018.
Release of transcripts and sound recordings is an administrative function of the Court. Information concerning applications for access is to be found on the Supreme Court's website. The applicant should make whatever application she chooses. It will be dealt administratively, in accordance with established policies. The second order sought should be refused.
The applicant has demonstrated no basis for either of the orders she seeks. The notice of motion should be dismissed.
The orders of the Court are:
The applicant's notice of motion filed on 5 July 2018 is dismissed;
The applicant is to pay the respondent's costs of the notice of motion.
[9]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 February 2019
Parties
Applicant/Plaintiff:
Huang
Respondent/Defendant:
Wong
Cases Cited (5)
Judgment
THE COURT: By notice of motion filed on 5 July 2018 the applicant, Ms Chao (Isabel) Huang, seeks orders formulated as follows:
"1. Set aside the Judgement handed down by Justice M Beazley President in the President's court room on 7 May 2018, pursuant to the Uniform Civil Procedure Rules 2005 - REG 36.15.
2. Release all the duplicate sound recordings relating to the case at the Court of Appeal for the period 14 February 2018 and 18 April 2018."
Rule 36.15(1) of the Uniform Civil Procedure Rules 2005 provides:
"36.15 General power to set aside judgment or order
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith."
In support of her application the applicant relied upon an affidavit affirmed by her on 18 May 2018; in that affidavit she made reference to, and purported to incorporate, two affidavits sworn in previous proceedings by Ms Hong (Hope) Liao (who is the applicant's mother). The applicant also filed written submissions.
Precisely what the applicant seeks by order 1 is open to some doubt. On 7 May 2018 this Court gave reasons for orders it had previously made, on 18 April 2018: Huang v Wong [2018] NSWCA 94. It may be that the applicant seeks to set aside the orders made on 18 April (although, if that is so, it has not been clearly articulated). Alternatively, it may be that she seeks to set aside the reasons given on 7 May, although for what purpose is not apparent.
The respondent, Dr Wong, opposes the first order sought, but has adopted a neutral position in relation to the second. He has provided a short written submission.