Wang & Liu v State of New South Wales

Judgment 1CAMPBELL JA : Ms Wang is the wife of Mr Liu. They both brought an action against the State of New South Wales. That action and various other proceedings that have sprung from it have all proceeded on the basis that Ms Wang is incapable and must bring any legal proceedings by her tutor. Mr Liu has acted as her tutor in all the proceedings so far. 2The litigation against the State arose from an incident on 10 January 2004 in which Ms Wang claims to have been assaulted by her landlord. She complained to the police about the assault and was dissatisfied with the manner in which her complaint was dealt with. In particular, she was dissatisfied with the way in which a Senior Constable Kennedy had acted. All the litigation that Ms Wang and Mr Liu have brought is brought on the basis that the State is vicariously liable for the actions and inactions of the police officers. 3On 29 December 2008, both Ms Wang and Mr Liu commenced proceedings against the State alleging that inadequacy in the police handling of the complaint had caused psychological injury. It seems that the contention was that Ms Wang had suffered the psychological injury, although both Ms Wang and Mr Liu were named as plaintiffs. 4Ms Wang and Mr Liu have acted for themselves in all this litigation apart from at one stage obtaining the certificates from a solicitor that were needed for Mr Liu to act as Ms Wang's tutor. 5In July 2009, R S Hulme J heard a notice of motion that was filed by the State seeking that the proceedings be dismissed or, alternatively, that the statement of claim be struck out. There had been amendments to the statement of claim such that the current version at the time of the hearing before R S Hulme J was the fifth amended statement of claim. R S Hulme J ordered that the proceedings be dismissed with costs. 6Leave to appeal against that decision was granted. 7On 24 August 2010, this Court allowed the appeal in part: Wang v State of New South Wales [2010] NSWCA 209. The order dismissing the statement of claim with costs was set aside and in its place the following orders were made: "(a) strike out the statement of claim filed 29 December 2008 but grant the plaintiff, Li Wang, leave to file a fresh statement of claim by 8 October 2010, such leave being limited to: a claim against the State of New South Wales with respect to the conduct of Richard Kennedy, then a senior constable of police, during the period from 10 January to 27 July 2004, following a complaint of an alleged assault on the plaintiff by her landlord; (b) such leave excludes any claim - (i) by the plaintiff's husband; (ii) against Inspectors Melton and Cracoar; (iii) against Commanders G McCarthy, L Freudenstein and G Beresford; (iv) against Police Prosecutor Mr Ian Casher; (v) against the Director of Public Prosecutions; (vi) against Mr B Searson of the New South Wales Police Legal Services, and (vii) in respect of the present proceedings. (c) no order as to costs of the motions determined on 2 July 2009; (d) grant the plaintiff leave to apply to a judge in the Common Law Division to vary these conditions, if so advised, but only on the basis of an affidavit provided by a legal practitioner that there is a cause of action which would otherwise be precluded, which has reasonable prospects of success." 8The Court of Appeal declined to rule on an application to permit the filing of a sixth amended statement of claim that made allegations of misconduct against many people other than Senior Constable Kennedy. The Court of Appeal also made an order referring the appellant to the registrar for referral to a barrister having experience in relation to claims in tort against public authorities on the pro bono panel for assistance in drafting a statement of claim. 9Ms Wang and Mr Liu sought special leave to appeal to the High Court from that decision. However, that application was unsuccessful: Wang v State of New South Wales [2010] HCASL 273. 10At no time did Ms Wang and Mr Liu seek to avail themselves of the opportunity given them by the Court of Appeal to obtain pro bono assistance in drafting a statement of claim that could survive striking out. Instead, they discontinued the proceedings that they had started in December 2008 and on 22 December 2010 they filed fresh proceedings. The 2010 proceedings sought to make a wider range of allegations than those that had been permitted by the order of the Court of Appeal. In particular, they made claims against police officers other than Kennedy, including some against police officers who were specifically excluded from the leave to re-plead that the Court of Appeal had granted. Again, in this new 2010 proceeding, Mr Liu acted as the tutor for Ms Wang. 11On 15 March, 11 May and 16 May 2011, Schmidt J heard four different notices of motion in the 2010 proceedings. Her Honour delivered judgment concerning the notices of motion on 23 June 2011: Wang v State of New South Wales [2011] NSWSC 609. As appears from her Honour's judgment at [5], those notices of motion were: (1) By the plaintiffs concerning a failure of the defendant to file a defence to the statement of claim and concerning the court's failure to take specified steps in previous proceedings between the parties. Mr Liu in submissions to Schmidt J explained that that notice of motion sought an order for summary judgment in favour of the plaintiffs because the defendant had failed to file a defence to the statement of claim within the time the rules required: [28]. (2) By the plaintiffs seeking an order that Mr Liu file an affidavit that he had sworn in February 2011 in relation to a complaint against the defendant's legal representative's conduct in relation to certain earlier proceedings and seeking that its solicitor and counsel be disciplined. (3) By the plaintiffs that Mr Liu "consent to act as Ms Wang's tutor" and that a further affidavit be filed. It appears that this notice of motion was in substance an application that Mr Liu be permitted to act in the proceedings as tutor for his wife and that leave be granted to him pursuant to UCPR 7.14(2) to act as a tutor without a solicitor. (4) By the defendant seeking an order dismissing the proceedings or, in the alternative, striking out the plaintiff's statement of claim, or staying the proceedings. As well, the defendant contended that Mr Liu should not be permitted to continue to act as his wife's tutor. 12In her judgment Schmidt J made decisions in principle: (1) That Mr Liu should not be given leave to commence and continue the proceedings as his wife's tutor without a solicitor (at [41]-[43]). (2) That Mr Liu should not be prevented from acting as his wife's tutor (at [47]). (3) That summary judgment in favour of Mr Liu and Ms Wang should not be ordered (at [49]). (4) That insofar as the 2010 proceedings asserted rights of Mr Liu that were outside the scope of the leave granted by the orders of the Court of Appeal, they were an abuse of process and should be dismissed (at [56]-[57]). (5) That insofar as the statement of claim in the 2010 proceedings asserted rights of Ms Wang that were outside the scope of the leave granted by the Court of Appeal, Schmidt J made a fresh referral to the Registrar for referral to a barrister having experience in tort claims against statutory authorities for advice as to the position that she was in and assistance in relation to the drafting of a statement of claim (at [61]). 13Schmidt J declined to make any final decision concerning dismissal or striking out of Ms Wang's action in whole or part until such time as such advice had been obtained. 14Importantly for present purposes, Schmidt J's judgment of 23 June 2011 only gave a direction and did not make orders. Her judgment concluded at [63] by saying: "The parties should bring in short minutes of order to reflect this judgment. If necessary, I will hear the parties on the question of costs. It appears that the orders should be that: