Leeming JA, White JA, Payne JA, Gleeson JA, Basten JA
Source
Original judgment source is linked above.
Judgment (3 paragraphs)
[1]
[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 9 November 2015, a judge sitting in the Common Law Division following a hearing in which all parties were cross-examined dismissed the claim brought by the applicant, Mr Guang Hua Pi, against the respondents, Mr Jian Cheng Zhou and Ms Christine Zhao, for assault and various other torts: Pi v Zhou [2015] NSWSC 1644. The dispute arose in circumstances where the respondents had leased a flat to the applicant and there had been an altercation between them.
Following a series of applications for judicial review none of which has been pursued, the present proceedings were commenced by Mr Pi in 2015. In the following year, Gleeson JA ordered Mr Pi to provide security for the respondents' costs including security in the sum of $12,000: Pi v Zhou [2016] NSWCA 148. On 15 February 2017, this Court constituted by Basten JA, Payne JA and Sackville AJA dismissed Mr Pi's application to review that part of the orders made by Gleeson JA: Pi v Zhou [2017] NSWCA 16. This Court ordered that the security was to be provided on or before 5 April 2017, with the proceeding stayed in the meantime. The orders also provided that the matter was to be listed before a single Judge of Appeal for consequential orders, or, in the event that the security had not been provided, an order for the dismissal of the proceedings.
The matter came before Payne JA on 10 April 2017. There was no appearance by any party. Rather than dismissing the proceedings, Payne JA directed the parties to provide submissions and to be heard as to why the proceedings should not be dismissed. Submissions were supplied, and on 24 August 2017 there was a hearing. Mr Pi appeared with the assistance of a translator. He maintained that "this security for costs is abuse of legal system" and that he was not obliged to provide it. He said:
"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."
It was common ground that Mr Pi had not provided the security for costs which had been ordered.
On 22 September 2017, Payne JA applied the principles referred to in Porter v Gordian Runoff Ltd (No 3) [2005] NSWCA 377 at [23]-[26], and dismissed the proceedings: Pi v Zhou (No 3) [2017] NSWCA 224. His Honour relied upon (a) the time that had elapsed since security had been ordered, (b) the fact that Mr Pi had been on notice for many months that the respondents had applied to dismiss the proceedings, (c) the fact that Mr Pi had "made it clear in his submissions that he did not intend to lodge the security for costs which had been ordered", and (d) the prejudice to the respondents and the position of the courts.
The process now before this Court is a notice of motion filed two months later on 22 November 2017 by Mr Pi. No differently from the entirety of the proceedings to date in this Court, it appears to have been drafted without the assistance of a legal practitioner. It seeks the following orders:
"1. additional order - Extension of time
Plaintiff praying the court to Extension of time on 13 Aug 2018 filed the evidence Affidavit in support of the Notice of Motion, pursuant r 51.58, r 1.12 UCPR 2005 or any of about related legislation if need apply to, because plaintiff he too sick;
2 Setting aside 22 Sep 2017 his Honour Payne JA (Anthony Payne) whole Decision on 2015/355864, pursuant r46(4) Supreme Court Act 1970, or any of related legislation if need apply to, because irrationality prejudiced judgments error of law error of fact, have no evidence to justify the making of the decision;
3 Allowing plaintiff direct appeal;
4 The defendants to pay the plaintiff's SUMMONS SEEKING LEAVE TO APPEAL proceeding costs until now-on an indemnity basis;
5 Any other order the court deems fit" [sic].
It is appropriate to treat the motion as seeking an extension of time within which to review the decision of Payne JA dismissing the appeal.
The notice of motion is supported by an affidavit which refers to Mr Pi having been hospitalised in Bankstown from 31 August 2017 until 18 October 2017 with a variety of physical ailments including Parkinson's disease and Bell's palsy. The affidavit also contains serious allegations against the respondents ("false swearing on Court untruths misleading administration of justice intentionally abuses the legal system" [sic]), their solicitors ("because are false statements false swearing untruths misleading administration of justice … professional misconduct/misleading or dishonest conduct in or outside court" [sic]) and the primary judge.
Mr Pi has also filed further affidavits and some documentation corroborating his medical history and renewing his complaints about the decision of Payne JA and the conduct of the respondents and their lawyers.
Most recently, by affidavit made on 16 April 2018, Mr Pi gave notice that he would be too unwell to attend court today. The affidavit attached a number of medical certificates, the most recent of which was dated 7 March 2018. That letter, from Dr Donald Lin, referred to Mr Pi being brought to the emergency department by ambulance and being admitted to St Vincent's Hospital from 7-15 December 2017 and referred to his "multiple chronic medical conditions", the "most troublesome" of which were confirmed Parkinson's disease, Bell's palsy and severe spondylosis. It also states that "He is receiving community services CACP, and then approved home care services seven days a week", and that he "is to be followed up by GPs and [specialists] for ongoing management". Other documents in evidence establish that Dr Lin has treated Mr Pi since 2002.
It may be accepted that Mr Pi has been very unwell. He did not appear at Court when the matter was called this morning. However, contrary to Mr Pi's assertion, the medical evidence adduced by him does not demonstrate that he is unfit to attend court today. He adduces no evidence that he would probably be in a better state of health on an adjourned date.
It may also be accepted that Mr Pi had the right to apply to this Court to review the decision made by Payne JA dismissing his appeal pursuant to s 46 of the Supreme Court Act 1970 (NSW). That right is to be exercised within 14 days, in accordance with UCPR r 51.58, or within such extended time as the Court may fix. As noted above, Mr Pi's application should be treated as seeking an extension of time to seek to review the decision of Payne JA.
However, there is nothing in the voluminous material supplied by Mr Pi to date which comes close to identifying any error by Payne JA in dismissing the appeal following a lengthy delay and the failure to provide the security which had been ordered, confirmed on review and which could not be challenged before his Honour. There is no reason to think that there is anything which Mr Pi could add were he to address this Court orally, which would cast any doubt upon the correctness of the exercise of discretion by Payne JA.
Further, even if there were an extension of time, and reviewable error were found in the decision of Payne JA, the result would be that the original application for an extension of time to appeal from the orders made in 2015 would continue to be stayed pending the provision of the security which was ordered in 2016 and confirmed in 2017. There is nothing to suggest that the security will be provided, while in the meantime the costs incurred by the respondents will have increased.
The third order sought by Mr Pi ("allowing plaintiff direct appeal") and the submissions provided by Mr Pi demonstrate that he still has no intention of providing the security ordered. He did not seek special leave to appeal from the orders of this Court of 5 April 2017. Instead he seeks to reventilate an issue which has been decided against him. He points to no material change of circumstances since security for costs was ordered and no error on the part of Payne JA. No basis has been made out to interfere with the order for security for costs made by this Court in 2017.
Accordingly, the appropriate orders are:
1. Dismiss the application for an adjournment.
2. Dismiss the notice of motion filed 22 November 2017, with costs.
[3]
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Decision last updated: 24 April 2018