HER HONOUR: Michael Vaughan is a solicitor and sole practitioner trading under the name Johnston Vaughan. On about 20 December 2010, Johnston Vaughan was retained by Yun Fu Wang to represent him in proceedings in the Federal Magistrates Court of Australia. Mr Vaughan formed the view that the proceedings were misconceived. In early 2011, he sought instructions from Mr Wang to discontinue the proceedings. On 16 February 2011, the proceedings were dismissed by consent.
Since then, Mr Wang has brought multiple proceedings against Johnston Vaughan, without success. By these proceedings, Mr Vaughan seeks vexatious proceedings orders under the Vexatious Proceedings Act 2008 (NSW) to restrain Mr Wang from commencing further proceedings against him or Johnston Vaughan.
The summons sought orders staying any proceedings in New South Wales already instituted by Mr Wang and prohibiting him from instituting any proceedings in New South Wales or the Commonwealth of Australia. However, Mr Vaughan's written submissions indicated that, rather than seeking a general order, he sought only an order in relation to himself and persons associated with Johnston Vaughan. Accordingly, while the many other proceedings instituted by Mr Wang provide relevant background, in considering the test under the Act it is appropriate to confine attention to those proceedings instituted against Mr Vaughan and other people associated with Johnston Vaughan.
The question of standing to bring an application under the Vexatious Proceedings Act is addressed in s 8(4) of the Act. Section 8(4)(d) provides that vexatious proceedings orders may be made on the application of a person against or in relation to whom another person has instituted or conducted vexatious proceedings within the meaning of the Act. For the reasons explained below in respect of the substantive application, I am satisfied that Mr Vaughan is such a person.
Section 8(1) of the Vexatious Proceedings Act confers power on this Court to make a vexatious proceedings order in relation to a person if the Court is satisfied that the person "has frequently instituted or conducted vexatious proceedings in Australia". The term "vexatious proceedings" is defined to include:
(a) proceedings that are an abuse of the process of the court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause or delay or detriment, or achieve another wrongful purpose.
It has been noted that the term "frequently" is a relative term which must be considered in the context of the proceedings in question: Jones v Cusack [1992] HCA 40 at [14] (Toohey J); Attorney General in and for the State of New South Wales v Gargan [2010] NSWSC 1192 at [7] (Davies J). The importance of considering the question of frequency in context is nicely explained in the judgment of Ball J in Siteberg Pty Limited v Maples [2010] NSWSC 1344 at [31], as follows:
For example, it might be said of someone who goes overseas four times a year that the person does so frequently. The same could not be said of someone who walks to work four times a year. It is uncommon for most individuals to be involved in court proceedings. Consequently, it is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently.
I am satisfied that Mr Wang has frequently instituted vexatious proceedings against Mr Vaughan and other persons associated with Johnston Vaughan. My reasons for reaching that conclusion are stated below.
[2]
Circumstances in which Mr Wang retained Johnston Vaughan
Mr Wang's experience as a frequent litigant began with a workers' compensation claim. By the time he engaged Johnston Vaughan, he had been unsuccessful in that claim and had exhausted all rights of appeal (twice). In May 2007 he applied to the Workers Compensation Commission in relation to injuries he sustained on or about 9 August 2000 at a time when he was employed as a cleaner at the Botany View Hotel. He claimed to have suffered an injury in the form of subarachnoid concussion and injuries to the neck, shoulder and ankle, saying that, in the course of his duties as a cleaner at the hotel, he was carrying a heavy bag when he "ran into" a banana peel and slipped, hitting his head.
It was not disputed that Mr Wang had suffered those injuries but their cause was in dispute. It was common ground that he had been the victim of an assault the previous day. The respondent claimed that his injuries were caused by that assault and were not due to any work related incident. The arbitrator found that, whilst Mr Wang suffered the injuries in the workplace, the cause of the injuries was the fact that he had sustained a severe assault the evening before, which caused him to suffer "a grand mal seizure", causing him to fall to the ground. There was accordingly an award for the respondent.
Mr Wang brought many applications to have that determination reversed, all without success. An application for leave to appeal against the decision of the arbitrator was refused: see Yun Fu Wang v Botany View Hotel Ltd [2008] NSWWCCPD 25. An application to the Court of Appeal for leave to appeal from that decision was refused: Yun Fu Wang v Botany View Hotel [2008] NSWCA 229. An application to the High Court for special leave to appeal against the decision of the Court of Appeal was also refused: Yun Fu Wang v Botany View Hotel [2009] HCASL 68.
Mr Wang then returned to the Commission seeking a reconsideration of the matter initially dealt with by the arbitrator, invoking the Commission's authority under s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). That application was refused: see Yun Fu Wang v Botany View Hotel Ltd [2009] NSWWCCPD 63. An application for leave to appeal to the Court of Appeal against the reconsideration decision was refused: Wang v Botany View Hotel [2009] NSWCA 384. An application to the High Court for special leave to appeal against the Court of Appeal's decision was also refused: Yun Fu Wang v Botany View Hotel [2010] HCASL 116.
The second refusal of special leave was determined on 26 May 2010. It was against that background, on about 20 December 2010, that Mr Wang engaged Johnston Vaughan. At that time, Johnston Vaughan was wholly owned by Mr Dlakic. Mr Vaughan was an employed solicitor of the practice, having previously sold it to Mr Dlakic. On 21 December 2010, Mr Wang filed an amended application in the Fair Work Division of the Federal Magistrates Court against Botany View Hotel. Mr Vaughan had no hand in the preparation of that application. He formed the view that it was misconceived. As already noted, he sought Mr Wang's instructions to discontinue the proceedings. The proceedings were ultimately dismissed by consent on 16 February 2011.
Mr Vaughan's appearance on that occasion was pro bono. However, Johnston Vaughan had in the meantime performed legal services for Mr Wang which resulted in his being invoiced in the amount of $6,864. He paid $4,000 towards those fees in January, leaving an amount outstanding in the order of $2,864.
Mr Wang applied to the Federal Court of Australia for leave to appeal against the decision of the Federal Magistrates Court on 16 February 2011 dismissing his claim by consent. The application to the Federal Court was dismissed: Wang v Purpose Pty Limited [2011] FCA 381. The Court noted that the proceedings before the Federal Magistrate had been dismissed by consent, adding at [12]:
It is obvious enough why the applicant's solicitor consented to the dismissal. The proceeding was doomed to fail.
Mr Wang then commenced proceedings in this Court against Botany View Hotel, again seeking workers compensation from his employer. The summons was dismissed by Registrar Bradford. An application for review of that decision was refused: see Wang v Botany View Hotel [2011] NSWSC 1487 (Hislop J). Further proceedings against Botany View Hotel in the Federal Circuit Court and the Federal Court seeking to re-agitate the workers' compensation claim were dismissed: see Wang v Botany View Hotel [2014] FCCA 850 and Wang v Botany View Hotel [2014] FCA 730.
A further application to this Court, again evidently seeking to re-agitate the underlying grievance concerning the workers' compensation claim, was dismissed by me in May 2017: see Wang v Purpose Pty Ltd trading as Botany View Hotel [2017] NSWSC 644. On 9 October 2017, the Court of Appeal dismissed Mr Wang's application for leave to appeal against my decision: see Wang v Botany View Hotel [2017] NSWCA 249.
In the meantime, Mr Wang had also turned his attention to suing Johnston Vaughan. In May 2011, he commenced proceedings in the Local Court against Johnston Vaughan in relation to their representation of him in the workers compensation proceedings. The statement of claim was incomprehensible. On 1 September 2011, the proceedings were summarily dismissed. Mr Wang was ordered to pay Johnston Vaughan's costs fixed in the sum of $4,000.
In April 2012, Mr Wang lodged an application for assessment of costs. The application was determined to be out of time and was dismissed. An application was then made for an extension of time. The affidavit in support of the application is extremely difficult to understand; it appears to be directed to a claim by Mr Wang for payment by Johnston Vaughan of his costs of the many proceedings summarised above. The application came before Campbell J in March 2013 when the parties informed the Court that they had reached a settlement of the application but the settlement fell through and ultimately the application was heard by Campbell J. His Honour extended the time for Mr Wang to apply for a costs assessment, evidently understanding the application to be confined to an assessment of the outstanding costs payable to Johnston Vaughan: Wang v Vaughan [2013] NSWSC 1016. However, it is not clear whether Mr Wang pursued the assessment.
In November 2013, Mr Wang commenced proceedings in the District Court against Mr Vaughan and Mr Dlakic trading as Johnston Vaughan. The summons was incomprehensible. On 28 February 2014, it was summarily dismissed and Mr Wang was ordered to pay the defendants' costs fixed in the sum of $2,000.
Throughout 2014, following the dismissal of the proceedings in the District Court, Mr Wang commenced three separate proceedings in the Court of Appeal naming Mr Vaughan and Mr Dlakic as defendants. Those proceedings rehearsed many of the issues addressed in previous litigation. The Court determined all three appeals together: Wang v Johnston Vaughan [2015] NSWCA 35. In a detailed judgment, the Court concluded (at [41] per Emmett JA; McColl and Macfarlan JJA agreeing at [1] and [2]):
Mr Wang has been unable to advance any basis upon which any relief should be granted in any of the three proceedings that he has commenced in this Court. In the circumstances, each of the proceedings should be dismissed. Mr Wang should be ordered to pay Johnston Vaughan's costs of each of the proceedings.
Five months after the publication of that judgment, Mr Wang filed a summons for judicial review in this Court against Mr Dlakic and Mr Vaughan. The summons is incomprehensible. The application was heard by Button J who construed it as an attempt to re-litigate the matters dealt with in the judgment of the Court of Appeal referred to above. His Honour dismissed the proceedings and ordered Mr Wang to pay the defendants' costs: Wang v Dlakic [2015] NSWSC 1590.
On 10 March 2016, Mr Wang commenced proceedings in the Local Court against Mr Vaughan and Mr Dlakic trading as Johnston Vaughan. The statement of claim is incomprehensible. It was dismissed summarily by the Local Court on 16 June 2016.
On 7 July 2016, Mr Wang filed a summons in the District Court, perhaps seeking leave to appeal against the decision of the Magistrate summarily dismissing the proceedings in the Local Court on 16 June 2016. The defendants were Mr Vaughan and Mr Dlakic trading as Johnston Vaughan. The summons is incomprehensible. Those proceedings were summarily dismissed upon the first return of the proceedings on 4 August 2016.
On 30 August 2016, Mr Wang commenced proceedings in this Court evidently seeking to appeal against the decision of the District Court referred to in the previous paragraph. The summons was heard by Adamson J on 26 September 2016. Her Honour noted that the summons was difficult to understand, ultimately concluding that the basis of this Court's jurisdiction had not been identified. The summons was dismissed and Mr Wang was ordered to pay the defendants' costs: Wang v Vaughan [2016] NSWSC 1430.
On 19 October 2016, Mr Wang filed a summons in the District Court against Mr Vaughan trading as Johnston Vaughan. On the face of the summons, it sought leave to appeal against a decision of the Supreme Court, apparently the decision of Adamson J referred to above. The summons was dismissed "due to lack of jurisdiction" on 16 November 2016.
Finally, on 13 December 2016, Mr Wang filed yet another summons in this Court against Mr Vaughan trading as Johnston Vaughan. The summons was lengthy and incomprehensible. Those proceedings were dismissed by Beech-Jones J pursuant to rule 13.4 on 3 February 2017.
[3]
Conclusion
Mr Wang has commenced many proceedings against Mr Vaughan, Mr Dlakic and Johnston Vaughan. Apart from obtaining an extension of time to file an application to have costs assessed, he has been unsuccessful on every occasion. I am satisfied that all of the substantive proceedings instituted against persons associated with Johnston Vaughan have been instituted without reasonable ground and on that basis are vexatious within the meaning of the Act.
Interestingly, Mr Wang labours under the misapprehension that, on some occasions when he lost in court, he in fact won. At the hearing of the present application, I endeavoured (without success) to press Mr Wang on that issue, asking him to take me to the judgments in which he thinks he enjoyed some measure of success. To the extent that I was able to identify the judgments he was referring to, he was wrong. Some explanation for Mr Wang's misapprehension as to the outcome of his various proceedings may be gleaned from a medical report annexed to Mr Wang's own affidavit. The report records that, as a result of being assaulted, Mr Wang sustained traumatic head injury which has been causing him "a lot of headache and post-concussional syndrome with anxiety, depression, lack of concentration and cognitive impairment with short term memory loss and sleep disturbance".
In any event, I am satisfied that Mr Vaughan is a person against whom Mr Wang has instituted or conducted vexatious proceedings within the meaning of s 8(4)(d) of the Act and that he has standing on that basis. I am further satisfied that Mr Wang has frequently instituted vexatious proceedings against Mr Vaughan. I am not persuaded that there is any reason to decline to grant the relief sought. To the extent that Mr Wang may be cognitively impaired, if anything, that is a factor in favour of making orders prohibiting the institution of further misconceived proceedings. Such an order will protect Mr Vaughan against the need to incur further costs defending unmeritorious claims but will also protect Mr Wang against additional liability for needless costs.
For those reasons, I am satisfied that it is appropriate to make the orders sought by Mr Vaughan. I make the following orders:
1. that any proceedings already instituted by Mr Wang against Mr Vaughan be stayed;
2. that Mr Wang be prohibited from instituting proceedings naming Michael Vaughan, Amil Dlakic or Johnston Vaughan as a party.
[4]
Vaughan v Wang Mandarin translation (1.29 MB, pdf)
[5]
Amendments
15 January 2018 - Judgment translated into Mandarin language attached.
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Decision last updated: 15 January 2018