HER HONOUR: These are proceedings purportedly commencing an appeal to this Court. Rule 50.4 of the Uniform Civil Procedure Rules 2005 (NSW) contemplates that such proceedings will be commenced by summons. The plaintiff, Mr Yun Fu Wang, has in fact filed four summonses in the same proceedings. However, a review of the court file reveals that only the last of those was served on the defendant. That is a summons filed 30 January 2017 naming Purpose Pty Ltd trading as Botany View Hotel as defendant.
The defendant appears in response to that summons and has filed a notice of motion seeking to have the summons dismissed, presumably invoking r 13.4 of the UCPR.
The notice of motion is supported by an affidavit sworn by Mr Camille Dezarnaulds on 13 April 2017. The affidavit is succinct, reflecting the simplicity of the basis for the application. In short, Mr Dezarnaulds respectfully submits that the summons seeking leave to appeal filed by Mr Wang is meaningless and incomprehensible and that the material contained therein makes no sense.
Mr Wang has responded to the defendant's motion by filing his own notice of motion, dated 9 May 2017. Shorn of any context, the relief sought by Mr Wang is incomprehensible. It is in the following terms:
(1) UCPR r 12.7 Debtor fail they proceeding pay $404,000, weekly, incur cost, medical expenses.
(2) Section 83A Criminal Act QBE copy false document pay 3B. They substantial paid. Bankruptcy pay.
It is convenient to deal with the defendant's motion first.
Rule 13.4 provides that, in any proceedings, if "it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings, the proceedings are frivolous or vexatious, or that no reasonable cause of action is disclosed, or that the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim".
As already noted, the simple basis for the application is that the summons is incomprehensible. It is. The document is expressed in obscure language, with unclear references to statutory provisions and common law decisions and purported quotes collected together with other words which make no sense but which have a broad theme suggesting an underlying grievance about the failure of a claim for compensation as an employee. The only sense that can be made of the summons must be gleaned from earlier decisions in other proceedings commenced by Mr Wang, a number of which or parts of which are annexed to Mr Wang's affidavit filed 4 May 2017, which he read in support of his application.
Considerable detail about the history of Mr Wang's various attempts to recover compensation as an injured employee is provided in the judgment of Judge Emmett in Wang v Botany View Hotel [2014] FCCA 850. Her Honour's judgment in turn sets out a lengthy passage from an earlier decision of Hislop J in Wang v Botany View Hotel [2011] NSWSC 1487. Those two judgments reveal that Mr Wang had a claim for damages arising out of an alleged workplace injury. The decision of Hislop J records that Mr Wang's claim for workers compensation was dismissed essentially on the basis that, although it was accepted that Mr Wang had suffered an injury in the workplace on 9 August 2000, the cause of that injury was the fact that he had sustained a severe assault the evening before which caused him to suffer a "grand mal" seizure, as a result of which he fell to the ground during the course of his employment.
So far as the material before me reveals, it appears that Mr Wang does not accept that initial determination and has persisted in commencing many proceedings endeavouring to pursue a claim for workers compensation since that time, all of which have been unsuccessful. The material also reveals a strong basis for apprehending that, since the original determination, Mr Wang's cognitive function has deteriorated and his grasp on reality has become tenuous.
Mr Wang submitted that, contrary to the defendant's submission, the grounds of his present application are clear. Pressed as to the decision against which he seeks to appeal to this Court, he ultimately identified a decision of the Local Court made 11 August 2016 dismissing proceedings brought in that Court pursuant to r 13.4. No reasons given on that occasion are before this Court. There is only a copy of the court's order in the following terms:
Pursuant to rule 13.4 proceedings are dismissed. Costs of $300 for today to be paid by plaintiff to defendant within 14 days.
Mr Dezarnaulds, who appears for the defendant today, informed me that he also appeared on that application and that Mr Wang was present. Mr Dezarnaulds informed me that the basis on which the magistrate was persuaded to dismiss the proceedings was that the statement of claim was incomprehensible. It is. A copy of the statement of claim (filed in the Local Court on 18 February 2016) is annexed to Mr Wang's affidavit dated 4 May 2017; it is one of the documents pointed to by Mr Wang to show that his grounds of appeal in these proceedings have been stated clearly.
Apart from being handwritten and difficult to read, the statement of claim, like the summons before this Court, is a collection of obscure references to unidentified statutes and common law decisions, purported quotes and other words attempting to string those pieces of information together. Notwithstanding the absence before this Court of the published reasons of the magistrate, I am confident in concluding that it was entirely open to the magistrate to dismiss those proceedings pursuant to r 13.4.
At the hearing this morning, I informed Mr Wang that I found his statement of claim filed in the Local Court difficult to understand. He responded that another judge of this Court has told him that his affidavit is well written and easily understood and that there is a decision of the duty judge which shows that his statement of claim can be well understood. Mr Wang handed up two pages of a judgment of Beech-Jones J dated 9 September 2016. Contrary to Mr Wang's understanding of that judgment, it is a decision in which his Honour described a different summons filed by Mr Wang seeking leave to appeal as being an "entirely unclear" document. His Honour said, "Not surprisingly, the defendant sought to have the proceedings dismissed as vexatious and frivolous on their first return date, being today."
Justice Beech-Jones also recorded that Mr Wang's command of English was very poor and that neither he nor the court reporter could understand what Mr Wang was saying. Ultimately, it appears his Honour was persuaded to grant an adjournment of the application on the sole basis that Mr Wang had not had notice that an application to have the summons dismissed was to be heard that day.
Mr Wang put forward a series of other reasons, apart from the alleged clarity of his document, why the defendant's application should not succeed today. He asserted that the defendant owes him a debt and that it has not filed notice of a change of address for service. He alleged, apparently entirely without foundation, that the defendant's solicitor had assaulted him by punching him on the shoulder. He asserted that Judge Emmett had told him the defence he used was reasonable and appropriate. In fact, her Honour dismissed Mr Wang's proceedings under an analogue of r 13.4 in the judgment to which I have already referred.
Mr Wang asserted that Judge Emmett had told him that whereas three magistrates had previously dismissed proceedings brought by him, according to her Honour, their reasons were wrong and "that's why my case should be approved". He asserted that the defendant's solicitor himself had confirmed in his affidavit that Mr Wang had replied to all requests of him according to "the subject law". He concluded his submissions by asserting that he is not at fault according to the rule.
In summary, Mr Wang's submissions amounted to a series of recitations of instances when he thinks he was successful, whereas the court records show that he was not; where he understood the court to have been telling him that his position was clear or reasonable, where the records show that the court said the opposite; and where he thinks arguments set out in documents provided by him have been understood by the court, whereas in fact it is clear that they were not.
In any event, the principal relief sought in the summons appears to be to seek leave to appeal against a judgment of a magistrate dismissing proceedings under r 13.4 where, in my assessment, that judgment was not only open but manifestly right. The defendant's submissions have persuaded me that no reasonable cause of action is disclosed by Mr Wang's summons. Further, having regard to the form of the summons, the proceedings are vexatious, in my view. It follows that the relief sought by the defendant should be granted.
The proceedings are dismissed. I order Mr Wang to pay the defendant's costs. For abundance of caution, each of the following summonses is dismissed: the summons filed 5 September 2016, the summons filed 4 October 2016, the summons filed 31 October 2016 and the summons filed 30 January 2017, all of which have the same proceedings number. I order the plaintiff to pay the defendant's costs quantified in the sum of $850.
[3]
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: 24 May 2017