Wang v State of New South Wales

Judgment 1On 23 June 2011, I gave judgment in this matter (see Wang v State of New South Wales [2011] NSWSC 609), in relation to various motions which the parties had filed. I concluded that so far as Mr Liu, the second plaintiff was concerned, the proceedings had to be dismissed. So far as Ms Wang, the first plaintiff was concerned, I concluded the proceedings should not be dismissed, but that consideration of her position should be deferred, so that legal assistance could be obtained for her. I said that, if necessary, I would hear the parties on costs and directed them to bring in short minutes of order, which it appeared to me should provide: "1. The plaintiff's January, February and March 2011 motions be dismissed so far as Mr Liu is concerned. 2. The statement of claim be dismissed, in so far as Mr Liu is concerned. 3. Mr Liu's application that he be allowed to commence and carry on the proceedings as tutor for Ms Wang, without a solicitor, be refused. 4. The defendant's application that Mr Liu be removed as Ms Wang's tutor be refused. 5. Refer Ms Wang 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 advice as to her position and assistance in drafting a statement of claim. 6. The matter be adjourned to 14 July 2010 at 9.30 am for further directions." 2While giving that judgment, the proceedings were disrupted, when Ms Wang became distressed. Mr Liu sought a short adjournment, but as events unfolded, neither he nor Ms Wang returned to Court. In the circumstances, the steps which I took were to adjourn the matter until 21 July for further consideration and in the interim, to refer Ms Wang to the Registrar for referral to a barrister on the Pro Bono Panel. 3I understand that this referral led to such assistance being made available to Ms Wang, but that it was refused. When the matter came on before me on 21 July, there was no appearance from either Mr Liu, nor Ms Wang. It was reported that the defendant understood that they had decided to appeal the June judgment, but that they did not intend to appear further in the proceedings. 4The matter was adjourned for further hearing on 5 August, on the basis that Mr Liu and Ms Wang would be informed that if they did not appear on that occasion, the matter would be dealt with in their absence. 5There was then no appearance for either Mr Liu or Ms Wang. The defendant pressed for orders dismissing the proceedings and sought costs. The evidence established that Mr Liu and Ms Wang had been given notice of the orders which would be sought. In evidence was a letter from Mr Liu in which he advised that they would not attend the hearing. 6In the circumstances outlined in the June judgment, and the decisions which the plaintiffs have apparently made, not to accept any pro bono legal assistance for Ms Wang and not to further participate in the proceedings, the defendant's application for orders must be dealt with in the plaintiffs' absence. 7The orders sought were: "1 The Notices of Motion filed by the plaintiffs on 24 January 2011, 14 February 2011, 9 March 2011, 22 March 2011 and 23 May 2011 be dismissed. 2 The plaintiffs pay the defendant's costs of the Notices of Motion filed by the plaintiffs on 24 January 2011, 14 February 2011, 9 March 2011, 22 March 2011 and 23 May 2011. 3 The costs payable in relation to the Notices of Motion filed by the plaintiffs on 24 January 2011, 14 February 2011 and 23 May 2011 be paid on the indemnity basis. 4 The plaintiffs pay the defendant's costs thrown away by reason of the adjournment on 11 May 2011. 5 The Statement of Claim filed on 22 December 2010 be dismissed. 6 The plaintiffs pay the defendant's costs of the Notice on(sic) Motion filed by it on 17 January 2011 on the indemnity basis. 7 The defendant's Notice of Motion filed 5 April 2011 be dismissed with no order as to costs." 8The plaintiffs' motion of 23 May 2011 was not dealt with in the June judgment, having been filed only after judgment was reserved in respect of the other motions earlier filed. 9In the circumstances, it seems to me that the orders sought dismissing the various motions and the statement of claim must be made, given the conclusions reached in the June judgment and the plaintiffs' apparent decision not to press Ms Wang's application any further. 10As to costs, the usual order is that costs should follow the event. The defendant's motion of 5 April, where it sought Mr Liu's removal as Ms Wang's tutor, failed. The defendant sought, however, that no order as to costs should be made in the plaintiffs' favour in respect of that motion. Mr Liu and Ms Wang were unrepresented. They did not appear to seek any costs order in their favour. 11The usual rule is that litigants in person may recover actual disbursements and witness expenses, but not an amount representing their time and efforts in the preparation and conduct of the proceedings (see Cachia v Hanes (1991) 23 NSWLR 304 and Lawrence v MD Nikolaidis & Co [2003] NSWCA 129; (2003) 57 NSWLR 355). In this case the plaintiff sought no such order. Accordingly, it follows that the defendant's approach to the question of costs in respect of this motion must be accepted. 12The defendant also sought indemnity costs in its favour in respect of the plaintiffs' motions of 24 January, 14 February and 23 May and in respect of the defendant's motion of 17 January. The Court has power to make such an order under s 98 of the Civil Procedure Act 2005. 13Those orders were pressed in circumstances where the plaintiffs' case was one which the Court of Appeal had already dealt with in earlier proceedings between the parties and where, despite having been refused special leave by the High Court, the plaintiffs sought to agitate the same relief in these fresh proceedings. They were also pressed on the basis that various of the orders which were sought in the plaintiffs' motions had already been unsuccessfully pursued in the earlier proceedings; the defendant had drawn this to the plaintiffs' attention and had indicated that it would consent to the motions being dismissed, with no order as to costs being made in its favour. That was rejected by the plaintiffs, who pursued their motions. Mr Liu's application failed and Ms Wang's is now no longer pressed. 14In order for a departure from the ordinary costs rule to be ordered, some relevant misconduct must be established. Here that was submitted to be the plaintiffs' admitted endeavour to 'get around' the Court of Appeal's earlier judgment (see the June judgment at [56]). 15It is also settled that a party who has maintained proceedings which they should have known had no real prospects, may have an indemnity costs order made against them (see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401). 16It was accepted for the defendant that in exercising the costs discretion in this case, the Court would take account of the unfortunate circumstances which gave rise to the proceedings; the fact that the plaintiffs were not legally advised; and that they clearly misunderstood the way in which the legal system operated (see the June judgment at [10] and [25]). 17It seems to me that the circumstances which have arisen are not such that justice permits that an indemnity costs order be made against the plaintiffs. Nor am I able to come to the view that there should be any order in respect of the costs thrown away by reason of the adjournment on 11 May 2010. There was evidence of service of material which Mr Liu said he had not received or considered. Nevertheless, his general approach to the litigation must also be considered. He was clearly then anxious to have the matter proceed and he endeavoured to deal with the matters which had arisen, as best he could in the circumstances he found himself in. In the circumstances, I am not able to conclude that the adjournment resulted from anything other than some misadventure in relation to the documents which had been served. I am certainly not of the view that Mr Liu was being dishonest when he said he had not received the material in question. 18The circumstances which have arisen are unquestionably very difficult. Ms Wang's situation, in particular, is to be pitied. The difficultly of the position which Mr Liu is in, must also be accepted. It was not submitted that there was actual knowledge on the plaintiffs' part that these proceedings had no real prospect of success. The approach which they have adopted has certainly proceeded on a misunderstanding of the Court's Rules and their rights. In my view, it must be taken into account that this is a misunderstanding which has arisen in circumstances where the experiences which have again brought the plaintiffs to the Court, are of such a kind that a real distrust has arisen of various organisations of the State, including the police force, the defendant and indeed the Court itself. 19While there may be no sound basis for that mistrust, that it is sincerely held, must be accepted. In all of these difficult circumstances, I am unable to conclude that justice permits an indemnity costs order to be made against these unfortunate people.