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[2011] NSWSC 609
Supreme Court of NSW
2011-03-15
Schmidt J
Original judgment source is linked above.
Judgment 1These proceedings were commenced by statement of claim filed in December 2010 by which the first plaintiff, Ms Wang and her husband Mr Liu, the second plaintiff, seek to recover damages for personal injury and economic loss in respect of intentional torts. The proceedings are said to be brought under the Crown Proceedings Act 1988, the Law Reform (Vicarious Liability) Act 1983, the Victims Rights Act 1996, the Police Act 1990 and at common law, intentional torts and vicarious liability . 2The claims advanced are concerned with events which began in January 2004, when Ms Wang was assaulted by her landlord. It is alleged that her 000 call was responded to, but a Senior Constable Kennedy failed to attend. He forged records that showed that he had responded and spoken to Ms Wang. When the plaintiffs later reported the assault at the Parramatta Police Station, Senior Constable Kennedy dealt with them in such a way, that they made a complaint to his supervisor. He was the officer in charge of the matter, but took various steps to have the criminal charges brought against the landlord in respect of the assault in the Local Court, dismissed. 3The charges came before the Local Court in June 2004, when they were dismissed because Ms Wang did not appear; Senior Constable Kennedy having wrongly instructed that she had been served with a subpoena to give evidence. The plaintiffs lodged a complaint with the NSW Police. There was an internal investigation. The plaintiffs then lodged a complaint with the Ombudsman about that investigation. 4Damages in respect of physical and psychological injuries are claimed by Ms Wang, as well as damages for economic losses claimed to have been suffered by the plaintiffs. Punitive damages are also sought. 5Numerous motions have been filed in the proceedings. This judgment deals with four motions which were listed for hearing in March 2011 and two further motions filed in April. Three were filed by the plaintiffs: one in January, one in February and a third in March 2011. A number of affidavits supporting those motions were sworn by Mr Liu. The orders sought in the 17 January motion were directed to the defendant's failure to file a defence to the statement of claim. The motion also makes allegations as to the Court's alleged failure to take specified steps in previous proceedings between the parties. In the February motion, orders were sought that Mr Liu file an affidavit he had sworn in February 2011, in relation to complaints about the defendant's legal representatives' conduct in relation to the earlier proceedings and seeking that its solicitor and counsel be disciplined. In the March motion, orders were sought that Mr Liu's consent to act as Ms Wang's tutor and a further affidavit, be filed. 6By a motion filed in January 2011, the defendant sought orders dismissing the proceedings, or in the alternative, striking out the plaintiffs' statement of claim, or staying the proceedings. The motion was supported by an affidavit sworn by Ms Favaloro dated 17 January 2011. 7Mr Liu represented himself and appeared as Ms Wang's tutor at the hearing in March. It was initially the case that both Mr Liu and his daughter Ms Yan Liu sought to act as Ms Wang's tutor. That was opposed by the defendant. It was explained by Mr Liu that the purpose of them acting as joint tutors, was so that Ms Yan Liu could assist her father with interpretation. English is not his first language and at a later hearing he had the assistance of an interpreter. 8I explained that it was not necessary for Mr Liu to have the Court's leave for Ms Yan Liu to provide him with such assistance, or for Ms Yan Liu to act as her mother's tutor, in order for her to so assist him at the hearing. I also said that I doubted that more than one tutor could act at a time. The application that they act as joint tutors was then not pursued. 9Later during the course of the hearing it became apparent that Mr Liu, who had filed a notice consenting to act as Ms Wang's tutor, had not served that document on the defendant. The consent which had been filed did not comply with the requirements of Part 7.16 of the Uniform Civil Procedure Rules 2005. There it is provided that a tutor is not to commence or carry on proceedings, unless certain documents are filed. They include: "(b) a certificate, signed by the tutor's solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity." 10Before that difficulty emerged, it was revealed by the defendant's submissions that in the police investigation conducted in relation to the plaintiff's complaints about Senior Constable Kennedy, adverse findings were made. It was recommended that he be charged with perverting the course of justice. The Director of Public Prosecutions later directed, however, that there was insufficient evidence to proceed with such a charge. Disciplinary action was, however, pursued against Senior Constable Kennedy. In 2006, before that action was completed, his resignation from the police force was accepted. Mr Liu and Ms Wang were dissatisfied with these developments. 11In 2008, they brought proceedings in the Supreme Court (matter no 20604 of 2008), seeking damages in respect of the matters now the subject of these proceedings. The consent to act as Ms Wang's tutor which Mr Liu filed in these proceedings, was a copy of the consent which he had filed in the earlier proceedings, amended by the deletion of the earlier matter number and the handwritten insertion of the matter number of these proceedings. The result was that the only solicitor's certificate which had ever been provided, was that sworn by a solicitor in respect of the 2008 proceedings, in which Mr Liu had acted as his wife's tutor. That certificate had been sworn in April 2009. Ms Wang was not represented by a solicitor in these proceedings, which were commenced in December 2010. 12The consent Mr Liu filed was not served on the defendant, who only became aware of its contents at the hearing of the motions. Once the difficulty with the certificate was identified, the hearing was adjourned, in order that a fresh solicitor's certificate could be obtained by the plaintiffs in relation to these proceedings and that a motion seeking leave in accordance with Rule 7.14 could be filed by Mr Liu. That Rule provides: "7.14 Proceedings to be commenced or carried on by tutor (cf SCR Part 63, rules 2 and 3 (2); DCR Part 45, rules 2 and 3; LCR Part 34, rules 3 and 4) (1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor. (2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor." 13In April 2011 a further motion was filed by the plaintiffs, seeking leave for Mr Liu to commence and carry on the proceedings as his wife's tutor, without a solicitor. A solicitor's certificate was also provided, in which it was certified that Mr Liu did not have an interest in the proceedings, adverse to Ms Wang's interests. 14For its part, the defendant opposed this application and also filed a second motion, in which orders were sought pursuant to part 7.18(1) of the Rules, that Mr Liu be removed as his wife's tutor, on the condition that he remained liable in respect of everything done in the proceedings and the costs incurred to the date of his removal. A further order that the proceedings be stayed until a tutor is appointed in Mr Liu's place was also sought. Rule 7.18 provides: 7.18 Court may appoint and remove tutors (cf SCR Part 63, rules 5, 7 and 8; DCR Part 45, rules 7 and 8; LCR Part 34, rules 8 and 9) (1) In any proceedings in which a party is or becomes a person under legal incapacity: (a) if the person does not have a tutor, the court may appoint a tutor, or (b) if the person has a tutor, the court may remove the party's tutor and appoint another tutor. (2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings. (3) If the court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor. (4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person's tutor, on the tutor. (5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include: (a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and (b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. (6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor. 15For his part Mr Liu opposed the orders sought by the plaintiff. 16This judgment deals with the question of whether Mr Liu should have leave to carry on these proceedings as Ms Wang's tutor without a solicitor; with the question of whether he ought to be removed as her tutor; and with the question of the defendant's first motion, particularly so far as Mr Liu is concerned. It also deals with the plaintiffs' motions, particularly so far as Mr Liu is concerned. 17Before turning to deal with those matters, it should be observed that Ms Wang, who was not present in Court when I heard the original motions which the parties had filed, was present when the further motions were mentioned and later heard. From what she said at the mention, without objection, and from how she acted then and at the later hearing, it was very apparent that she was agitated and upset by the orders which the defendant seeks. At the hearing she wished to speak in support of her husband not being removed as her tutor, an application which was opposed by the defendant. 18I did not permit Ms Wang to speak further on her own behalf, taking the view that it was Mr Liu who should be heard on the motions given her undisputed incapacity, but I assured Ms Wang that I understood from what she had said earlier and from what Mr Liu had submitted, that she opposed the course which the defendant pursued by its motion.
Should Mr Liu be given the leave sought to commence and continue to act as his wife's tutor in these proceedings, without a solicitor? 19It is convenient to deal first with this issue. There is no issue that Ms Wang requires a tutor, given her incapacity. Rule 7.1 permits a natural person to commence or carry on proceedings, by a solicitor or in person. Rule 7.15(2) provides that any person is eligible to be a person's tutor, with certain exceptions which it is not here relevant to consider. There was no suggestion that Mr Liu's interest in the proceedings was adverse to that of Ms Wang. The tutor must file a consent and the certificate specified in Rule 7.16. While that was omitted originally, it has now been supplied and Mr Liu seeks leave to commence and carry on the proceedings without a solicitor. That leave is opposed. 20In determining what is in dispute between the parties, it is necessary to refer in a little further detail to the history of the earlier litigation between the parties, before these proceedings were commenced; to the course which Mr Liu now seeks to pursue on his wife's behalf; and to his own interests in these proceedings. 21In 2004, the plaintiffs received legal advice from a firm, Dexter Healey Solicitors (subsequently Moroney Betts Solicitors) and commenced a victims compensation claim before this Court in matter number 20604 of 2008. Another firm, Zhang Shijing Lawyers, acted for Ms Wang in proceedings brought before the District Court in matter number 226 of 2008. 22In 2008 the plaintiffs also brought proceedings in this Court, in relation to the injuries Ms Wang suffered and economic losses they claimed to have suffered as the result of the actions taken by the police in relation to the altercation between Ms Wang and her landlord in 2004, which are also the subject of these proceedings. The defendant filed a notice of motion seeking to have the statement of claim dismissed on three bases: (i) it disclosed no reasonable cause of action; (ii) it had a tendency to cause prejudice, embarrassment or delay in the proceedings; (iii) any causes of action were statute-barred under the Limitation Act 1969. The plaintiffs filed a motion seeking leave to amend the statement of claim. 23Hulme J dismissed the plaintiffs' amended statement of claim in the 2008 proceedings on 2 July 2009. His Honour took the view that the original statement of claim and a proposed amended statement of claim did not identify a cause of action known to law, for which damages might be obtained. On appeal, the Court of Appeal refused the leave sought by Mr Liu, that the appellants be permitted to file a sixth amended statement of claim (see Wang v State of New South Wales [2010] NSWCA 209). The appeal was, however, upheld, so far as Ms Wang was concerned, the Court of Appeal ordering: "(1) Allow the appeal. (2) Set aside the order made in the Common Law Division on 2 July 2009 dismissing the statement of claim and ordering the plaintiffs to pay the defendant's costs. (3) In place thereof make the following orders: (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 Krawczyk; (iii) against Commanders G McCarthy, L Freudenstein and G Beresford; (iv) against Police Prosecutor Mr Ian Casha; (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 the 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. (4) Order that the respondent pay the appellant's costs, assessed as an unrepresented party, in this Court. (5) Refer 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." 24The Court of Appeal observed: 39 Leave to replead should be limited to the conduct of Senior Constable Kennedy, following the complaint of assault on the plaintiff. 40 A pleading in relation to an intentional tort on the part of the police is not without its difficulties, even for lawyers. In Webster v Lampard [1993] HCA 57; 177 CLR 598, the appellants were the lessees of premises, from which they were being evicted when the respondent and another police officer arrived at the premises. When the matter reached the High Court, the questions in issue turned upon statutory protection available to the respondent. The cause of action relied upon was in the following terms (p 614): "The (respondent) in: (a) wrongfully threatening the Plaintiffs with arrest; (b) wrongfully requiring the Plaintiffs to give up possession of the premises; (c) wrongfully trespassing on the premises occupied by the Plaintiffs has acted in contumelious disregard of the rights of the Plaintiffs." 41 Toohey J noted (at 615): "The cause of action pleaded against the respondent and the nature of the relief claimed invite a number of questions but they are not the subject of this appeal." 42 The same comment may be made in the present case. To the extent that the first paragraph of the proposed new statement of claim seeks to pick up the comments with respect to intentional tort made by this Court in giving judgment on the leave application, it suggests that Mr Liu is not averse to acting on suggestions from those who are legally qualified. Needless to say, it is not the role of this Court to provide guidance to litigants, but to rule upon the issues brought before it for determination. The complaint of counsel for the State that there must be a limit to the number of opportunities which the plaintiff may have to put her claim into proper form is not without merit. Whether Mr Liu is prepared to accept free legal advice through the scheme organised by the Court with the Bar Association is by no means clear. However, it seems unlikely that an adequate pleading will be prepared without legal assistance. Accordingly, it is appropriate to refer the plaintiff (and her tutor Mr Liu) to the Registrar for referral to a barrister having experience in tort claims against statutory authorities for assistance in drafting a further amended statement of claim. Whether Mr Liu avails himself of that assistance is entirely a matter for him. However, the facility is free and should be made available to him. 25The plaintiffs sought special leave of the High Court in relation to the Court of Appeal's judgment. That leave was refused on 11 November 2010 (see Wang v State of New South Wales [2010] HCASL 273.) Then, instead of taking advantage of the leave granted to Ms Wang by the Court of Appeal to amend the claims which she had brought in 2008, the proceedings were discontinued. These proceedings were later commenced. 26The defendant's position was that even though the 2008 proceedings had been discontinued and these new proceedings brought, the plaintiffs were still bound by the Court of Appeal's judgment in respect of the 2008 proceedings. The plaintiffs had given no explanation as to the course which had been taken, which could permit of any other view. 27Given the Court of Appeal's orders, these proceedings had to be dismissed, so far as Mr Liu was concerned. The leave granted to bring a claim in respect of an intentional tort had excluded him. As for Ms Wang, having failed to take advantage of the orders made in her favour by the Court of Appeal within the time granted and having discontinued the proceedings, these proceedings also ought to be dismissed, so far as she was concerned. Even if she was permitted to proceed, her claim had to be confined to the matters in respect of which she had received leave from the Court of Appeal. If that course were to be pursued, a strict timetable should be imposed, in relation to the amendment of the statement of claim and preparation of the matter for hearing. 28At the March hearing, Mr Liu explained that what he wanted was an order for summary judgment, the defendant having failed to file a defence to the statement of claim, as the Rules required. He explained that the Court of Appeal had confined the relief which the plaintiffs could pursue in the earlier proceedings. He described the judgment to have been 'illegal and embarrassing', being inconsistent with the Uniform Civil Procedure Rules and the Law Reform (Vicarious Liability) Act . The plaintiffs had accordingly given up the leave that Ms Wang had been granted in the 2008 proceedings and had elected instead, to commence new proceedings, as the Rules permitted them to do. They understood that by taking that course, they were not restricted by the Court of Appeal's judgment, as to the claims which they brought in these proceedings. 29As to legal assistance in relation to reframing the claim and the order in relation to Ms Wang's referral to pro bono legal assistance, Mr Liu said a number of conflicting things. At one point he said, for example: "Further, regarding the solicitor. Honestly, plaintiff has to say so far no solicitors have made those conditions again: first one, working pro bono. Second one, willing to be in the proceeding against the government, especially the New South Wales Police. Third one, able to file cause of action. I fear I will not be able to file find such legal professionals to satisfy all three conditions. Furthermore, I have to tell the court, your Honour, in my experience, I still keep the telephone record at previous proceeding. I made over 200 phone calls within New South Wales, try to find a lawyer. Suddenly, just simply tell me we even can fight the government but not police because we have no chance to win. I have still keep the record, four or five pages from Law Society. They introduced some law firm, but no one successful. Suddenly, they even did not see you, they already ask like 600, 800 dollars for the first appointment. Whether all the solicitor, they have ability I'm talking even including the ... sorry. I'm not going further. That's my experience. And we have a record at the court regarding the justice gave leave to me appeal. Basten JA said at the court - I'm sorry I haven't kept the record; I just in my memory say this can be understanding, why some people they refuse find lawyer or they are not able to find lawyer. That's talking about my case specifically, my experience. That's regarding the solicitors. And his Honour just clearly tell me, "We just supply some pro bono and help you, let you decision you use or not. You are completely entitled to make your own decision." And last time the court date, his Honour just told me, "Mr Liu, thank you. You are doing perfect job regarding the appeal because in my experience so far have no any legal representatives can reach so far." 30Later he said: "Yes, and I appreciate the Court of Appeal supplying such help, but in fact I don't need anybody help me to amend the statement of claim. I believe that it's good enough. I have legislation. I have cause of action. I have the materials, evidence. I have fact. So far, the case already over two years, the defendant did not supply any refute evidence against me." 31The statement of claim filed in these proceedings and that pressed in the 2008 proceedings, deal with the same factual matters, albeit the claims are pressed on differing bases. The solicitor's certificate which Mr Liu has filed, does not identify the name of the solicitor who signed the certificate. At the hearing he identified the solicitor to be a Mr Zhang, who had previously acted for the plaintiffs in the earlier District Court proceedings. The certificate is inaccurate, in so far as it asserts that the solicitor is on the record in these proceedings. 32There is no question that the Court has power to grant the leave sought by Mr Liu, that he be permitted to act in the proceedings for his wife, without a solicitor. That, however, is an order not lightly to be made. In Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149, the established principles were discussed. 33Power to conduct a case on behalf of an incapacitated person, without the assistance of legal representation, will only be exercised if it is concluded that it is desirable to do so in the interests of the administration of justice. At [45] of Damjanovic, it was observed that : "45 Cooke J touched upon the argument that the rule achieves no useful purpose other than to protect the monopoly of lawyers. He quoted Hardie Boys J in Mihaka v Police [1981] 1 NZLR 54 at 58: The denial of recognition to other than suitably qualified persons should not be regarded as protection of any privilege or monopoly. It surely gives effect to the fact that an unqualified and inexperienced person may do more harm than good to the person he assists: if only because of his ignorance of the law which may support that person's cause. In this age of complexity in the law and specialisation in its practice, this reason is perhaps more cogent that it has ever been." 34Such leave has been granted where the parties have a common interest in the litigation and a relationship, such as that of brothers and sisters, particularly where legal representation has ceased in mid-stream in the trial due to lack of funds (see Galladin Pty Ltd v Aimnorth Pty Ltd (1993) 60 SASR 145 and Stergiou v Citibank Savings Ltd (1988) 148 FLR 244 at 247). Here, that the parties have a close personal relationship, is apparent. They plainly both have an interest in the claim which they seek to advance, but their legal interests are not the same. 35Mr Liu did not put on evidence which explained the difficulties he referred to in obtaining legal representation. He reiterated at some points that there had been such difficulties; at others that he was not interested in pursing legal advice, even on a pro bono basis and at other points, that he believed he was well capable of representing Ms Wang's interests himself. The evidence which he finally put on, sheds little further light on the problems which may have been encountered. 36While the Rules contemplate the possibility of the leave sought being granted, in my view, the exercise of the discretion must be limited to cases where it may positively be concluded that grant of the leave will not be to the disadvantage of the person under legal incapacity who requires a tutor to act on their behalf. In exercising the discretion the requirements of the Civil Procedure Act 2005, must also be born in mind. Thus, it follows that the discretion will be exercised, if it is shown that to do so will not be inconsistent with the achievement of the overriding purpose of that Act and the Rules, namely to 'facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings'. 37In this case, I am of the view that it would not be in Ms Wang's interests, nor consistent with the provisions of s 56, for the leave sought to be granted. 38Mr Liu's difficulties with English can obviously be addressed by resort to an interpreter. It is apparent, however, that contrary to his own belief, he is not in a position where he can competently represent Ms Wang's interests. His lack of understanding of the legal process was revealed in various ways. For example, by the various motions which he has filed; by the approach which he sought to pursue to this litigation and the earlier 2008 proceedings; and by the approach which he adopted during these proceedings, when, for example he sought to insist at some points that he could proceed, without even reading material which had been put in written form by the defendant. While he was justly critical of the defendant on some occasions, for example when he complained that the defendant had not earlier served the written outline of its submissions its counsel had prepared for the March hearing, then seeking to proceed without even reading the submissions, was not an adequate way by which to represent Ms Wang's interests. Nor could the approach so adopted ensure that the obligations which fell on the plaintiffs to assist the Court achieve the just, quick and cheap resolution of the real issues in the proceedings, were met. 39The steps which Mr Liu took by discontinuing the 2008 proceedings, his submissions in these proceedings and his steadfast refusal to allow Ms Wang to avail herself of the free legal advice made available to her by the Court of Appeal, has had the result that instead of her claim being redrawn with the assistance of such legal advice, so that the hearing of her claim could proceed, it has been unnecessarily delayed, if not derailed entirely, by the course which Mr Liu has embarked on. 40Had legal advice been taken, it is evident that Ms Wang would have been advised to take advantage of the leave granted by the Court of Appeal, rather than discontinuing the proceedings. The course taken has been to her obvious disadvantage. Had that not occurred, it is unlikely that the difficulties and delays which have arisen in these proceedings, which resulted from Mr Liu's failure to comply with the Court's Rules, would have occurred. Costs have been unnecessarily incurred as a result. 41I accept that Mr Liu is entirely well meaning and intent on doing his best, in his wife's interests and his own, as he perceives those interests. In the circumstances, I am nevertheless of the view that the leave which he has sought must be refused. To order otherwise would appear to risk further unnecessary detriment to Ms Wang, albeit I accept entirely, that would not ever be Mr Liu's intention. 42Mr Liu's inadequate understanding of the legal process is such that no matter how genuinely it might be accepted that he is motivated to assist his wife, that he is in a position to do so in a way consistent with the purpose for which the tutor system is established under the Rules, if not assisted by a solicitor, may not be accepted. 43For these reasons, his application for leave to carry on the proceedings other than by a solicitor, is refused.
Should Mr Liu be removed as his wife's tutor in these proceedings? 44Whether Mr Liu continuing to act as his wife's tutor in these proceedings, would also not be conducive to their just, quick or cheap resolution, particularly having in mind their different positions, is a matter to which it will be necessary to return. Rule 7.18(1)(b) permits the Court to remove a tutor. This is a discretionary matter. In South v Northern Sydney Area Health Service [2003] NSWSC 479, for instance, the discretion was exercised in circumstances where a conflict of interest had arisen. It seems to me a tutor who refuses to proceed with an action may, for example, be removed. That is not exactly this case. 45I have accepted that Mr Liu has his wife's best interests at heart. While not competently conducted, I am not of the view that the proceedings have been conducted improperly, notwithstanding the discontinuance of the 2008 proceedings. Rather, that appears to have been a decision made as the result of Mr Liu's imperfect understanding of the legal process. 46Given the orders which I propose to make in respect of Mr Liu's interests in these proceedings; the nature of Ms Wang's disabilities; what is claimed to be their cause; what is sought to be pursued in these proceedings in respect of her; that the proceedings are brought against the State; and the obvious and significant anxiety caused to Ms Wang by the prospect of her husband's removal as her tutor, I am not satisfied that this aspect of the relief sought by the defendant may justly be granted. 47On the evidence, I am not able to conclude that Mr Liu continuing to act as Ms Wang's tutor would be inconsistent with her own best interests, given the other orders which I have made. The assistance of a solicitor should address the difficulties which have arisen, to this point, so that the overriding purpose of s 56 may be achieved. If they are not resolved, no doubt a further application may be made.
The plaintiffs' motion for summary judgment 48The plaintiffs sought an order for summary judgment, because the defendant had not put on a defence to the proceedings. The explanation for the course which the proceedings have taken, lies in the earlier litigation between the parties, and the defendant's case that in commencing these proceedings, Mr Liu has impermissibly sought to circumvent the orders made by the Court of Appeal in the 2008 proceedings. 49I am well satisfied that the circumstances are not such that Mr Liu may have an order for summary judgment made in his favour. The position of Ms Wang appears to be no different, but so far as she is concerned, I propose not to make any orders at this stage.
Should the proceedings be stayed or dismissed, so far as Mr Liu is concerned? 50As to Mr Liu, as I have said, it is apparent from his submissions, the Court of Appeal's orders in the 2008 proceedings, as well as from a comparison of the pleadings in the 2008 proceedings, with those brought in these proceedings, that Mr Liu has sought to circumvent the impact of the orders made by the Court of Appeal in those earlier proceedings, by the new proceedings which he has brought. 51That course may not be permitted, notwithstanding the provision made in Rule 12.3, on which Mr Liu relied. It provides: "12.3 Effect of discontinuance (cf SCR Part 21, rule 7; DCR Part 18, rule 7; LCR Part 17, rule 8) (1) A discontinuance of proceedings with respect to a plaintiff's claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings. (2) Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue." 52A notice of discontinuance filed in proceedings, does not alter rights already accrued in the litigation, nor does it bar an application to revive the proceedings. Discontinuance does not operate to overcome the effect of judgments already given by the Court in respect of matters over which the parties have joined issue in the proceeding. As Lord Halsbury LC said in Reichel v Magrath (1889) 14 App Cas 665 at 668, it has long been accepted that: "... it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again ... there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure ..." 53That was an observation made in the context of a defence which was not barred by res judicata estoppel, but which was nevertheless struck out as an abuse of process. The result can be no different, where a defendant has succeeded in having a claim struck out. While the 2008 proceedings were discontinued after the Court of Appeal's judgment, that discontinuance must be understood as having been filed after Ms Wang was given leave to replead her claim, but Mr Liu was not. Despite the discontinuance, they are bound by the conclusions which the Court of Appeal reached. 54Rule 14.28 permits the Court to strike out pleadings which are an abuse of process. This is a power which should not be exercised except in plain and obvious cases, when it is proper in the interests of both parties to dismiss the action, instead of allowing them to incur useless expense (see Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62). This is such a case. Mr Liu is bound by the orders which the Court of Appeal made in the 2008 proceedings. He is not entitled to circumvent the result of the Court's orders by bringing fresh proceedings in relation to matters he was refused leave to pursue. He is clearly seeking to re-litigate claims which the Court of Appeal has already determined he has no right to bring. That may not be permitted 55In Cleary v Jeans [2006] NSWCA 9; (2006) 65 NSWLR 355 it was observed by Young CJ in Eq: "61 The history of the principle of abuse of process by a collateral attack on a judicial decision was traced by the English Court of Appeal in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1. 62 At pp 16-17 in paragraph [38], Morritt VC laid down the following propositions from the cases, which, so far as they are relevant in NSW are as follows: "(a) a collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of process of the court; ... (c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings; (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to the later proceedings that the same issues should be re-litigated or (ii) to permit such re-litigation would bring the administration of justice into disrepute." 56In this case Mr Liu is of the view that by discontinuing the 2008 proceedings and bringing these proceedings, he was not bound by the Court of Appeal's judgment. That understanding is wrong. The orders which the Court made resolved the controversy which had arisen between he and the defendant, over the claim which he sought to advance in relation to the events which are now the subject of these proceedings. He is not entitled to agitate those claims in these proceedings. His failure to obtain special leave of the High Court to appeal against the Court of Appeal's judgment leaves him in the position that he is bound by that judgment. 57The orders sought against him, must therefore be granted.
Ms Wang 58The defendant's case was that the proceedings brought by Ms Wang should be dismissed and in the alternative, that they should be confined to the relief which the Court of Appeal permitted her to pursue in the 2008 proceedings. If that course were adopted, it was urged that a tight timetable be fixed, to permit her to amend the pleadings and to prepare her case for hearing. 59Ms Wang is in a different position to that of Mr Liu, although she, too, is bound by the matters decided by the Court of Appeal in the 2008 proceedings. The orders which were there made were relevantly: "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; " 60Mr Liu has not been granted leave to represent Ms Wang as tutor, without a solicitor. I propose to adjourn consideration of the orders and directions which ought to be made in relation to her claims in these proceedings, so that such assistance may be obtained, before further consideration is given in relation to Ms Wang's position. 61As the Court of Appeal observed, there is difficulty with the pleading of an intentional tort. While Mr Liu earlier refused to avail himself of the opportunity given to Ms Wang to obtain free legal advice through the scheme organised by the Court with the Bar Association, that is an opportunity which would be in Ms Wang's obvious interest to pursue. Accordingly, I again refer Ms Wang to the Registrar for referral to a barrister having experience in tort claims against statutory authorities, for advice as to the position she is in and assistance in relation to the drafting of her statement of claim.
Costs 62The usual order as to costs is that they should follow the event. So far as Mr Liu is concerned, it would seem that a costs order must be made against him, other than in relation to the defendant's motion to have him removed as Ms Wang's tutor, which he has successfully resisted. The position so far as Ms Wang is concerned may not yet be determined.
Orders 63The 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:
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: 23 June 2011
Wang
State of New South Wales
[2010] NSWCA 209
(2006) 65 NSWLR 355
(2002) 55 NSWLR 149
(1949) 78 CLR 62
(1993) 60 SASR 145
(1988) 148 FLR 244