[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
PAYNE JA: By summons dated 8 March 2016 the applicant, Mr Pi, sought an extension of time to appeal from a decision of the primary judge, Adamson J, made on 9 November 2015 dismissing his claim for damages for assault and various other torts against the respondents, Mr Zhou and Mrs Zhao: Pi v Zhou [2015] NSWSC 1644.
Following a series of aborted applications for judicial review, the present proceedings were commenced by Mr Pi. The respondents sought security for costs and Gleeson JA ordered the applicant to provide security for the respondents' costs in the sum of $12,000: Pi v Zhou [2016] NSWCA 148.
On 15 February 2017, this Court delivered its principal judgment, following a review of Gleeson JA's orders: Pi v Zhou (No 2) [2017] NSWCA 16. The Court ordered, relevantly, that the applicant provide security for the respondents' costs by paying into court the sum of $12,000, or by otherwise providing security for that amount in a manner satisfactory to the respondents. Pending that security being provided, the stay of the proceedings which had been ordered by Gleeson JA was continued. The Court ordered security to be provided on or before 5 April 2017.
The orders of the Court provided that the matter was listed before a judge of the Court on 10 April 2017 for consequential orders, or, in the event that the security had not been provided, an order for the dismissal of the proceedings.
On 10 April 2017, the matter was listed before me. Security for costs had not been provided. There was no appearance by either party. Rather than order the dismissal of the proceedings as had been contemplated by the orders, the parties were given a further specific opportunity to address whether the Court should dismiss the proceedings for failure to pay the security for costs which had been ordered. On 11 April 2017, the parties were notified by the Registrar and invited to make written submissions as follows:
"(1) By 5pm on 2 May 2017 Mr Pi to file and serve written submissions as to why, as security has not been provided as ordered on 15 February 2017, the proceedings should not be dismissed under UCPR r 51.50 or in the Court's inherent jurisdiction.
(2) By 5pm on 23 May 2017 Mr Zhou to file and serve any written submissions in reply."
There is no issue before me that each party complied in substance with the procedural directions I made. On 3 May 2017 the applicant filed his submissions. On 23 May 2017 the respondents filed submissions in reply.
At the hearing on 24 August 2017 I gave leave to Mr Pi to rely as submissions upon two additional documents which he handed up entitled 'Security for costs - Error of law Error of facts Particulars' and 'List of AFFIDAVIT 3 May 2017 Written Submissions annexed evidence docs'.
It is common ground that Mr Pi has not provided the security for costs which was ordered.
[3]
The applicant's submissions
English is not Mr Pi's native language and he appeared before me with the assistance of an English interpreter. It is unclear the degree to which he had the assistance of a qualified interpreter in preparing his written submissions.
In written submissions dated 3 May 2017, Mr Pi made submissions which were essentially addressed to the underlying assault allegations he made against the respondents. No submissions were made which directly addressed the question of why, as security for costs had not been provided as ordered on 15 February 2017, the proceedings should not be dismissed.
Although the submissions were lengthy, the part of the submissions said to be directed to security for costs can be set out verbatim:
"Written Submissions
1. stops running an error of fact appear on the face of the court proceedings record in Civil 2013/389177 with subsequent related error decisions;
2. struck out defendants' 20 Apr 2016 Notion of Motion Security for Costs frivolous vexatious abuse of the process of proceedings pursuant r13.4 Uniform Civil Procedure Rules 2005;
3. that Security for Costs "special circumstances" are non-existent;
4. no security for costs is to be required in this case;
defendants
5. Making Judicial chaos giving false report to Supreme Court of NSW
Civil case 2013/389177 defendants reproduced 2011 false report to police's false statements, Solicitors Orford John Laurence (John Orford & Associates as representative acts defendants from 2014 to 9 Nov 2015) oaths false statements, is knowingly the false evidence intended perjury mislead, that is false materials was dismissed from Judgments by CTT Tribunal Hurstville rental case, by local court Burwood Judgments Not guilty and District Court Sydney Downing Centre revoked AVO-Judgments Certificates, defendants only oaths by empty mouth but is facts perjury.
6. defendants Making Judicial chaos fiving false report Security for Costs NOTICE of MOTION proceedings
From 2 Dec 2015 to May 2016 WANG Lawyers acting defendants; and at 20 April 2016 were fabricated false facts intended reversed debt, misleading judicial, wilfully distortion making case confusing on court of proceedings.
above defendants' falsely, that plaintiff have been filed and served evidence provided facts to court, that already prove defendants' real offender facts.
This is a extreme wilfully;
Intentionally tort case
Maliciously Inflicting Grievous Bodily Harm
Intentionally abuses the legal system injury innocent"
The applicant, in paragraphs 7 to 10.1 of his written submissions, repeated and amplified complaints about the conduct of the respondents and repeated his underlying allegations of assault. In paragraph 10.2, the applicant returned to the subject of security for costs and stated:
"10.2 security for costs- defendants giving false report to judicial proceeding making Judicial chaos
a) giving false report mislead Sheriff Judicial action 27-28 Jan 2016
defendants untruths misleading Sheriff Judicial, intent distorting the facts inverts the costs debt; but actually defendants own me costs $14599.78 unpaid overdue a year, contempt deny court order 22 Apr 2015;
b) 20 April 2016 Defendants notice of motion giving false report Security for Costs to proceedings, were frivolous vexatious abuse of the process of this Supreme Court-without reasonable purpose or probably cause;
1) defendants with lawyer Gang WANG and Jason NEO on 20 Apr 2016 fabricated costs matter inverts the costs debt misleads court process, making Judicial chaos
2) unreasonable contempt and full deny court costs order 22 Apr 2015 unreasonable full deny the costs matters should cross claims;
3) fabricated costs debt $15,000 no evidence grounds
4) making confusions enlarge security of costs reason misleading plaintiff need pay defendants owes lawyer money $35,000
5) fabricated debt evidence misleads Sheriff Judicial action, the purpose for fabricated Security for Costs, oppressive stifle case proceedings 2013/389177, evade charges, wilfully making Judicial chaos;
- Evidences 16Nov2016CostsAssessmentOrder has been filed court and served
c) defendants making Judicial chaos false swearing Affidavit, false evidence materials giving false report security for costs to Supreme Court Gleeson JA hearings 17June 2016
1) false evidence misleading security for costs
fabricated costs debt $15,000
2) fabricated enlarged costs matters, inverts the costs debt misleads Sheriff Judicial action, fabricated debt evidence, making Judicial chaos misleads court process:
3) inverts the costs debt full deny court costs order 22 Apr 2015 unreasonable deny this costs matter should both cross claims
4) misleads imposed costs debt plaintiff need pay defendants owes lawyer money $35,000
the defendants conduct of misleading, purpose for oppressive stifle the court case proceedings 2013 / 389177, evade charges, wilfully making Judicial chaos;
- Evidences 16Nov2016CostsAssessmentOrder has been filed court and served"
Paragraphs 11 to 13, which occupy over five pages, include a number of allegations about what are described as "untruths" told by the respondents, but do not address the question of security for costs or the dismissal of the proceedings.
On 24 August 2017, the applicant handed up the documents identified at paragraph 7 above. Doing the best I can, the submissions may be summarised as follows:
1. an "error of law error" appears on the "face of the court proceedings record" in the decision of Adamson J because:
1. there was no evidence justifying the orders that Adamson J made; and
2. her Honour's consideration of "2011 police false witness materials" was a contravention of s 134 of the Evidence Act 1995 (NSW);
1. this Court erred in taking Adamson J's decision into account when it ordered the applicant to lodge security for costs, as the decision made on 15 February 2017 was "built on" her Honour's erroneous decision;
2. the decisions of Gleeson JA of 2 March 2016 and 24 June 2016 were erroneous because:
1. his Honour "fabricated evidence" and "enlarged" the security for costs payable by the applicant. The respondents claimed before Gleeson JA that in the proceedings before the primary judge they had incurred costs of $35,000, but his Honour ordered $12,000 to be paid as security, a figure for which, it was submitted, "reason [did] not exist";
2. his Honour had no evidence before him about the applicant's prospects of success;
3. his Honour erred in finding "special circumstances" existed (at [55] of Pi v Zhou [2016] NSWCA 148), therefore the discretion to order security for costs under UCPR r 51.50 was never enlivened, and/or his Honour fabricated the "special circumstances";
4. the respondents' grounds for seeking security for costs were therefore "non-existent";
5. when describing the applicant as a disability pensioner in his reasons, his Honour made a factual error as that description effectively characterised the applicant's disability as "like a natural disability" when in fact it was the result of the assault by the respondents;
6. his Honour failed to consider that over 60 documents had been filed by the applicant in Court, as is clear from his Honour's reasons noting that the applicant had not pointed to evidence which supported various assertions he made before him;
7. his Honour was "extremely biased" and attempted to "cover up" the primary judge's erroneous decision in which her Honour improperly took into consideration false witness statements; and
8. his Honour caused the "disappearance" of 21 documents the applicant filed with the Court;
1. Adamson J and Gleeson JA were each guilty of unsatisfactory professional conduct and professional misconduct by acting to "damage" the name of the applicant, certain unnamedConsumer Trader & Tenancy Tribunal "judicial" officers, Stone LCM and Solomon DCJ; and
2. McCallum J made a costs order for $5,500 in the applicant's favour which the respondents have still not paid.
[4]
The respondents' submissions
The respondents' submissions filed on 23 May 2017 also failed to address any potentially relevant legal issue. It is fair to say that the respondents' essential submission was that the "true aims" of the applicant's action was "to waste our money and … resources". Mr Zhou did not seek to add to his written submissions by oral address.
[5]
Consideration
The applicant's central complaint, that security for costs should never have been ordered by the Court, is not a matter that can be challenged before me. Special leave to appeal was not sought nor was any application made to vary or discharge those orders.
None of the submissions advanced by the applicant in writing or orally address the only question presently before the Court, namely, whether these proceedings should be dismissed by reason of the failure of the applicant to pay the security for costs ordered by the Court. In particular, no submission was made about whether the power in the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) Pt 51 r 51.50(2A) or the inherent jurisdiction of the Court was engaged such that the Court had jurisdiction to dismiss the summons by reason of the failure of the applicant to pay the security for costs ordered by the Court.
There may be an issue about the Court's power in r 51.50(2A) to dismiss the proceedings by reason of the definition of "appellant" in UCPR r 51.2 which arguably does not include Mr Pi who is formally an applicant for an extension of time to appeal. In my view r 51.50(2A) provides power to dismiss this proceeding where an order for security for costs has been made under r 51.50(1). Even assuming that r 51.50(2A) does not apply, the Court has inherent jurisdiction to dismiss the summons for failure to comply with an order to provide security for costs: Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 at [98] per Ward JA.
In the present case, the Court ordered that security for costs be paid in the amount of $12,000 by 5 April 2017. That security has not been paid and there is no realistic prospect that it will be paid. Certainly, the applicant advanced no submission that any additional period of time would enable him to lodge the security for costs which has been ordered. His position is that by reason of errors allegedly made in the judgments of Adamson J, which were repeated by Gleeson JA, the ultimate order for security for costs made by this Court should not have been made. As the applicant submitted, "I just want to emphasise that for security of cost, I didn't owe defendant any money."
In Porter v Gordian Runoff (No 3) [2005] NSWCA 377, Tobias JA said at [23]-[26]:
[23] The principles the Court should apply in exercising its discretion to dismiss proceedings under Pt 51 r 24 of the SCR were considered by the Court of Appeal in Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271. It was submitted that those principles were equally applicable to Pt 42.21(3) of the UCPR.
[24] In Idoport at first instance ([2002] NSWSC 18), Einstein J (at [24]) accepted as correct the defendant's submission in that case that the following five factors were required to be taken into account in determining whether the Court should exercise its discretion to dismiss proceedings (at first instance) for failure to comply with an order for the payment of security for costs. Those factors were:
(a) The period that has elapsed since the security was ordered;
(b) The fact that the plaintiff has been on notice of the application for dismissal;
(c) The seeming inability of the plaintiff to further fund the proceedings;
(d) The prejudice to the defendant; and
(e) The position of the Court.
[25] His Honour (at [24]) accepted that those five matters were appropriate to be taken into consideration in the exercise of the relevant discretion. Nevertheless, he also acknowledged that that list was by no means exhaustive and that all the relevant circumstances were required to be taken into account including the Court's straining wherever practicable consistently with the interests of justice to avoid taking the radical step of denying a plaintiff its day in Court. The proper exercise of the Court's discretion required all relevant factors to be weighed in balance, the ultimate decision reflecting the interests of justice.
[26] On appeal from the decision of Einstein J, Mason P, with the agreement of Stein and Giles JJA, rejected a submission that Einstein J had erred in the exercise of his discretion in giving weight or undue weight to the first four of the factors identified above. The President then observed (at [51]):
"There is no minimum period established by legislation, rules or practice within which an application for dismissal might be made following default in compliance with an order for payment of security. No judicial discretion is uncontrolled, but it is common ground that the discretion to dismiss conferred by rule 4 is a broad one, unfettered by any express limitations … There is no written or unwritten minimum time, although I would accept that something more than a technical reduction or accidental default is required."
I accept that this list of factors identified in Idoport is by no means exhaustive and that all the relevant circumstances are required to be taken into account, including the Court's straining, consistently with the interests of justice, to avoid taking the step of denying Mr Pi his day in Court.
In considering these factors I make the following findings:
1. The period that has elapsed since the security was ordered - the order for security for costs was made by this Court on 15 February 2017. Over seven months have elapsed since that time. A sufficient period of time has elapsed for the applicant to have complied with the order to provide security if he was willing and able to do so;
2. The fact that the plaintiff has been on notice of the application for dismissal - it is clear that Mr Pi has been on notice for a significant period of time that the proceedings may be dismissed in the event that there was non-compliance with the order to provide security for costs. It was made clear in the Court's decision delivered on 15 February 2017 that consideration would be given to dismissal of the proceedings if the security for costs which had been ordered was not provided. That conclusion was amplified by the Court's directions on 11 April 2017 and at the hearing of the oral submissions on 24 August 2017;
3. The seeming inability of the plaintiff to further fund the proceedings - although no evidence was advanced on this topic, Mr Pi made it clear in his submissions that he did not intend to lodge the security for costs which had been ordered;
4. The prejudice to the respondents - the events that gave rise to the proceedings before the primary judge occurred in January 2011. The respondents have had two judgments in their favour after lengthy and expensive litigation. First, in succeeding in 2015 on the substantive claim before the primary judge and, secondly, in obtaining in 2016 and then defending in 2017 an order for the payment by Mr Pi of security for costs. In this respect, there is a clear public interest in the final determination of the litigation; and
5. The position of the Court - the position of the Court is that this appeal has been stayed since 24 June 2016 when Gleeson JA made his initial order. The potential impact on Mr Pi's ability to conduct the appeal once the security was ordered was recognised by the Court at paragraphs [33]-[34]. Notwithstanding a similar issue in Gordian, the Court of Appeal in that case dismissed the opponent's motion to discharge Hodgson JA's order.
That still leaves the question of whether the Court should exercise its discretion summarily to dismiss the appeal for failing to lodge security for costs. As has been pointed out on numerous occasions, summary dismissal of proceedings is an extreme measure. I take into account that even if Mr Pi is able to commence fresh proceedings against these respondents (a matter about which I express no view) he may face a successful Limitation Act defence. However, this is a case where Mr Pi's default in complying with the order of the Court for the provision of security for costs is continuing and, on the evidence, that order is highly unlikely to be complied with.
As Mason P pointed out in Fairey v Fairey (No 2) [2000] NSWCA 173 at [52]:
"The power to dismiss proceedings summarily serves the dual purposes of ensuring fairness to litigants in preserving the integrity of the judicial system. The former purpose aims essentially to protect the litigant, in this case the respondent, from the consequences of delay, be those consequences financial, impacts on litigation, psychological or otherwise. The latter purpose, namely the integrity of the judicial system, promotes the expedient resolution of cases and has some regard to the interests of litigants generally in the Court. I hasten to say that regard cannot over-reach the rights of the individual litigants to justice in their own case."
Taking into account all the relevant circumstances here, and straining, consistently with the interests of justice, to avoid taking the radical step of dismissing the proceedings, this is an appropriate case to dismiss the proceedings for failing to lodge security for costs.
[6]
Orders
I make the following orders:
1. The summons filed on 8 March 2016 is dismissed;
2. Mr Pi to pay the respondents' costs as agreed or assessed.
[7]
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: 22 September 2017
It was submitted that the following were "incontrovertible" facts:
1. the respondents intentionally assaulted and inflicted grievous bodily harm upon the applicant, causing him permanent disability;
2. the respondents' notice of motion for security for costs was frivolous, vexatious and an abuse of process; and
3. the respondents have "no evidence" that the applicant's case has no prosects of success.
So far as the other document was concerned, being the submission described as "List of AFFIDAVIT 3 May 2017 Written Submissions annexed evidence docs", the documents referred to in this submission were not in evidence before me.
The applicant's oral submissions were almost wholly repetitive of the written submissions. Despite a number of invitations to address any specific submission to why this matter should not be dismissed for failure to provide security for costs, the applicant repeated matters about complaints concerning the earlier decisions of Adamson J and Gleeson JA.
The only oral submissions which directly addressed the decision of this Court was as follows:
"The - there is no base or no grounds for the motion of security for costs. There is no grounds for the Court wanting me to pay the 12,000. The Court should make more wise decision. It's a wrong judgment made by the Court."