Wang v State of New South Wales

Supreme Court of NSW|2013-04-19|Before: Garling J

Judgment 1On 3 July 2012, Lee Wang, as first plaintiff, and Yu Liu, as second plaintiff, commenced proceedings against the State of New South Wales by the filing of a Statement of Claim. 2In the Statement of Claim, the plaintiffs claimed damages from the defendant, said to have arisen from: "... multiple times instances of intentional torts by the defendant, that twice caused the failure of appeal by the plaintiffs ..." 3On 18 July 2012, the State filed a Notice of Motion seeking to have the proceedings summarily dismissed and, in the alternative, other relief. 4The hearing of the defendant's Notice of Motion took place on 21 September 2012, at which time two Notices of Motion filed by the plaintiffs, one of 12 July 2012 seeking to have the proceedings heard by a jury, and the second of 7 August 2012, seeking procedural orders and a review of a Registrar's decision, were also heard. 5For the reasons which appear in this judgment, I have decided that the whole of the proceedings filed by the plaintiffs ought be summarily dismissed. It follows that both of the Notices of Motion filed by the plaintiffs are also to be dismissed.

History of Previous Litigation 6The Statement of Claim, the subject of this judgment, and which was filed on 3 July 2012, is not the first proceedings that the plaintiffs have commenced. 7In order to understand the present proceedings, it is necessary to trace the background of the previous litigation. 8The first attempt by Ms Wang to commence proceedings was by way of the filing of a summons in the District Court of NSW on 25 January 2008. Those proceedings were dismissed on 17 December 2008, by the District Court (Balla DCJ) in accordance with r 12.7 and r 29.7 of the Uniform Civil Procedure Rules 2005. 9On 29 December 2008, the plaintiffs commenced proceedings in this Court against the State. It will be convenient to refer to these proceedings as the 2008 proceedings. These proceedings claimed damages which were described as "aggravated damages" arising out of the conduct of named police officers in the period between January 2004 and April 2007. 10In short, the Statement of Claim pleaded that as a consequence of an assault on Ms Wang by her landlord, a complaint was made to police officers stationed at the Parramatta Police Station. It appears that the police undertook an investigation, and that charges were laid against the alleged perpetrator. But Ms Wang did not receive what she claimed was the appropriate information from, and treatment by, the police officers. 11It transpires from that Statement of Claim, that Ms Wang's complaint of criminal conduct which she took to the police, and which resulted in charges being laid, was dismissed by the Court. Ms Wang blames the police and their conduct for that dismissal. 12She claimed ultimately, that as a consequence of their conduct, which she described as misconduct, she had suffered psychological injury. 13The final two substantive paragraphs of her Statement of Claim were in the following terms: "13. In the past four year, NSW police officers actions continuously harmed the plaintiff, causing the plaintiff psychological conditions to gradually worsen. The analysis of the plaintiff's condition in the medical report issued in October 2007, in contrast with the report issued September 2005, clearly demonstrated deterioration of the plaintiff's condition by 50%. The plaintiff has suffered a complete loss of the ability to work, and a major portion of the ability to care for herself. The party responsible for the plaintiff's personal injury is the defendant. 14. Following a series of abusive treatment, the plaintiff has incurred serious injuries, loss and damage which were caused by the defendant." 14The State, in the 2008 proceedings, filed a Notice of Motion seeking to have them summarily dismissed because the Statement of Claim disclosed no reasonable cause of action. 15On 2 July 2009, R S Hulme J, for the reasons which he gave, dismissed the Statement of Claim. 16In his judgment he said: "Accordingly, it is to my mind clear, that however much the plaintiffs may feel they were unfairly treated in the respects detailed in the statement of claim, they have not acquired thereby any cause of action for which the remedy of damages sought is available." His Honour ordered that the Statement of Claim be dismissed, and ordered the plaintiffs to pay the State's costs. 17The plaintiffs sought leave to appeal and appealed, against the decision of R S Hulme J. 18On 14 October 2009, the Court of Appeal granted the plaintiffs leave to appeal, and made other consequential orders: Wang v State of New South Wales [2009] NSWCA 340. 19Ultimately, the appeal was heard on 10 August 2010. During the course of the appeal, at least one proposed Amended Statement of Claim was handed up to the Court. It was dated 9 August 2010. Mr Liu described it as the "Sixth Amended Statement of Claim" in a written outline of his submissions. 20On 24 August 2010, for the reasons contained in the judgment, the Court of Appeal allowed the appeal and set aside the orders made by R S Hulme J, dismissing the Statement of Claim. In lieu of that order, the Court of Appeal struck out the Statement of Claim, but granted Ms 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 alleged assault on the plaintiff by her landlord." This grant of leave specifically excluded " ... any claim ... in respect of the present proceedings." 21Other consequential orders were made: Wang v State of New South Wales [2010] NSWCA 209. I note that these orders did not include the granting of leave to the plaintiffs to file the proposed Amended Statement of Claim which was dated 9 August 2010. 22The Court of Appeal's judgment found, with respect to the complaints of the plaintiffs about the 2008 proceedings, that the complaints were without foundation. It said at [37]: "There then follow paragraphs 24-36 [of the proposed amended statement of claim], which contain a litany of complaints about the administration of justice and the course of proceedings in the Supreme Court. The management of litigation for a lay person seeking to conduct proceedings in a language which is not his first language must be stressful. The stresses of the litigation have no doubt compounded the domestic difficulties to which Mr Liu referred. However, the complaints about the course of the litigation do not suggest any legitimate basis for any fresh cause of action. Whether the additional stress can form a head of damages in relation to a pre-existing cause of action is another question, which need not be addressed at this stage." 23On 11 November 2010, for the reasons which it gave, the High Court of Australia dismissed an application by the plaintiffs for special leave to appeal against the decision of the Court of Appeal: Wang & Anor v State of New South Wales [2010] HCASL 273. 24On 6 December 2010, the plaintiffs filed a Notice of Discontinuance of the 2008 proceedings, which had been the subject of the decisions of R S Hulme J, the Court of Appeal, and the High Court of Australia. 25A little over two weeks later, on 22 December 2010, Ms Wang and Mr Liu commenced a further set of proceedings against the State of New South Wales. It will be convenient to refer to these proceedings as the 2010 proceedings. In these proceedings, Ms Wang claimed damages for psychiatric injury arising from intentional torts alleged to have been committed by a number of named police officers. The Statement of Claim also claimed "punitive damages". Together with the Statement of Claim, a statement of particulars of the damages claimed was also filed. 26Speaking generally, the subject matter of this claim was similar to the subject matter of the previous claim which had been discontinued, although it was not limited to the conduct of Senior Constable Kennedy, in the way contemplated by the orders made by the Court of Appeal on 24 August to which I have referred in [20]. 27On 17 January 2011, the State of New South Wales filed a Notice of Motion seeking to have the proceedings summarily dismissed, or, alternatively, for the Statement of Claim to be struck out. 28The State's Notice of Motion, together with other Notices of Motion filed by the plaintiffs, were heard by Schmidt J in March and May 2011. On 23 June 2011, Schmidt J published a judgment which made a series of findings which would, upon the entry of orders in due course, have the effect of dismissing each of the plaintiffs Notices of Motion so far as Mr Liu was concerned, and also dismissing the Statement of Claim insofar as Mr Liu was concerned. Schmidt J refused Mr Liu's application that he be allowed to commence and carry on proceedings as tutor for Ms Wang without a solicitor. Her Honour published her reasons: Wang v State of New South Wales [2011] NSWSC 609. Her Honour stood the proceedings over for the formulation, and entry, of formal orders. 29After a further hearing, which took place on 5 August 2011, for the reasons which her Honour published on 18 August 2011, her Honour dismissed the Statement of Claim filed 22 December 2010: Wang v State of New South Wales [2011] NSWSC 882. She made other consequential orders. 30The plaintiffs sought leave to appeal against Schmidt J's findings in her first judgment of 23 June 2011. This application came on for hearing on 29 September 2011, before the Court of Appeal (Campbell JA and Handley AJA). 31Having heard the plaintiff's argument, the Court of Appeal dismissed the application for leave to appeal, for the reasons which Campbell JA expressed, and with which Handley AJA agreed: Wang & Liu v State of New South Wales [2011] NSWCA 321. 32On 9 February 2012, the High Court of Australia dismissed an application for special leave to appeal against that decision of the Court of Appeal: Wang & Anor v State of New South Wales [2012] HCA SL10. 33As is apparent from the transcript in the Court of Appeal on 29 September 2011, and from the reasons which the Court of Appeal gave in dismissing the application for leave to appeal, that application only dealt with the first judgment of Schmidt J, being that delivered on 23 June 2011, and did not deal with the second judgment of Schmidt J delivered on 18 August 2011. That second judgment has not been the subject of any application for leave to appeal, or of any other proceedings seeking to challenge it. 34It is against that background that the present proceedings, filed on 3 July 2012, come to be before the Court.

Present Proceedings 35The Statement of Claim presently before the Court does not make any claim for damages arising from the conduct of the police officers in respect of the original complaint to NSW Police, which was the subject of the 2008 and 2010 proceedings. Rather, it seeks to make a claim for damages for intentional torts arising out of various events which occurred in the course of the litigation, which I have outlined above. 36So far as I can discern from the Statement of Claim, it appears that the following features of the 2008 and 2010 proceedings in the Supreme Court are relied upon: (a)2008 proceedings: the State unlawfully filed a defence, thereby depriving the plaintiff, Ms Wang, of her legal rights in the litigation; on 2 July 2009, the plaintiffs were not heard by the Court, and the Court was misled by the counsel for the State; the reasons for judgment of R S Hulme J of 2 July 2009 "... cannot be legally used for the purpose of an appeal pursuant to the UCPR 2005 r 51.27(1)(c)"; and the Court of Appeal made its judgment "... based on the unlawful judgment from the Court below that the plaintiff's statement of claim is to be struck out". (b)2010 proceedings: the copy of the judgment of Schmidt J of 18 August 2011 sent to the plaintiffs was not certified "... and therefore cannot be legally used by the plaintiffs for the purpose of appeal pursuant to UCPR 2005 r 51.12(2)(c)"; and on 15 September 2011, in the appeal books, the lawyers for the State included, without the plaintiffs' authority, a falsely certified copy of the judgment of Schmidt J of 18 August 2011. It is alleged that the inclusion of this falsely certified judgment had the effect of causing the application for leave to appeal to be dismissed. 37In light of these matters to which attention is drawn and which I have just summarised, the Statement of Claim then pleads: "15. With regard to the multiple times, instances and intentional torts by the defendant that twice cause the failure of appeal by the plaintiffs, the defendant is liable for the damages and costs of the plaintiffs based on Statement of Particulars dated 22 December 2010." 38The Statement of Particulars dated 22 December 2010, which is specifically referred to, is the one filed in the 2010 proceedings in which a claim was made for psychological injury as a consequence of the intentional torts of the various named police officers. Axiomatically, this Statement of Particulars could not claim damages for anything which occurred during the 2010 proceedings.

The Arguments of the State 39The State submits that the present proceedings ought be summarily dismissed because: (a)the Statement of Claim consists of a litany of complaints which do not give rise to any cause of action known to the law; (b)the complaints are misconceived, have been dealt with in the earlier proceedings, and that the nature of this Statement of Claim is such that it constitutes effectively an appeal from those determinations which is impermissible, and therefore discloses no arguable cause of action; (c)the issue concerning the "illegality" of the judgment of Schmidt J of 18 August 2011, has been determined by the Court of Appeal in its judgment of 29 September 2011; and (d)the proceedings, having regard to their content and the earlier decisions of the Court of Appeal, constitute an abuse of process because, it is argued, the plaintiffs having exhausted their rights of appeal in both of the earlier proceedings, are attempting to run a further appeal against those determinations in these proceedings. 40In the presentation of their oral submissions to the Court, the plaintiffs were assisted, with the leave of the Court, by their daughter speaking on their behalf. Their daughter was fluent in English and was able from time to time, to assist the plaintiffs in putting their argument to the Court. 41The plaintiffs sought to oppose the summary dismissal of their proceedings by pointing to features which, they submitted, justified the factual assertions for which they contended. They disputed that they did not have a reasonable cause of action. Indeed by their, often shouted, oral submissions, they passionately asserted the substantial nature of their cause of action. They opposed any finding that the proceedings were an abuse of process.

Discernment 42It will be appropriate to discuss each of the matters pleaded by the plaintiffs to see if they correctly reflect the facts, and then to consider whether, if they do, and insofar as they do, the plaintiffs have pleaded a recognised cause of action.

Unlawful Filing of Defence in 2008 Proceedings 43The pleaded allegation is that the defence to these proceedings was unlawfully filed. No particulars of the unlawfulness are given, and none were provided in submission. 44The defence was filed on 20 March 2009, and has the seal of the Court upon it. A reading of it does not disclose any apparent defect. When the matter was heard before R S Hulme J on 2 July 2009, the plaintiffs made no submission to his Honour that the defence was unlawfully filed. When the matter was before the Court of Appeal on 14 October 2009, to deal with the application for leave to appeal, no complaint was advanced that the defence was unlawfully filed. The Court of Appeal, when giving its decision on that application, referred to the defence and made no criticism of it. When the appeal was heard, no issue was raised about the defence being unlawfully filed. 45There is no basis in fact for any allegation that the defence in the proceedings was "unlawfully filed", nor that it deprived the plaintiff, Mrs Wang, of her legal rights in the litigation. 46However, having regard to the orders made by the Court of Appeal on 24 August 2010, in which the plaintiff, Ms Wang, was granted leave to file a fresh statement of claim by 8 October 2010, it necessarily followed that a further defence would need to be filed to that fresh statement of claim. Accordingly, the original defence, about which the complaint of unlawful filing is made, would not thereafter have had any function to play in the pleadings. 47This allegation is groundless in fact. 48Further, if there was any basis for it, then the proper place for the complaint to be dealt with was in the 2008 proceedings, during which an application ought to have been made to strike out the defence, or else seek some other order, the justification for which was that the defence had the defects now alleged. The allegation is not open to be made in these proceedings.

Proceedings on 2 July 2009 49It is pleaded that when the 2008 proceedings came before R S Hulme J for hearing of the State's motion for summary dismissal, the plaintiffs were not heard by the Court, and that the Court was misled by counsel for the State because counsel "... concealed the Law Reform (Vicarious Liabilities) Act 1988, SS8 and 9B which been previously agreed upon by the defendant as a viable cause of action put forward by the plaintiff". 50The transcript of the hearing on 2 July 2009, was tendered before me as part of Exhibit CW1. It was the only evidence of what occurred on that day. 51It is clear that when the proceedings were called on for hearing, the plaintiffs, and an interpreter who had been arranged, were not in attendance. The Court took a short adjournment while attempts were made by the lawyers for the State to contact the plaintiffs. Those attempts were unsuccessful and, in the absence of any appearance, his Honour proceeded to hear the motion brought by the State. 52At the end of the State's submissions, his Honour commenced to deliver an ex tempore judgment. As he was doing so, the transcript reveals that the plaintiffs arrived with their interpreter. 53His Honour ceased delivering his judgment. He had not, at that stage, concluded the judgment, nor had he made any orders. His Honour identified the plaintiffs and their interpreter and sought, and received, an explanation as to why they were late. 54His Honour then asked counsel for the State to recommence his argument and to put it in full again, so that the plaintiffs could hear it and then respond. His Honour took considerable effort to ensure that what was being put by counsel for the State was being adequately translated to the plaintiffs. 55In the course of the submissions of counsel for the State, there was an interruption. The transcript records that counsel for the State said to his Honour that both plaintiffs had left the Court. The transcript goes on: "His Honour: The transcript should record that the female plaintiff commenced to sob at the bar table and her husband took her outside. (Mr Liu returned to the bar table) Mr Liu, after 18 years in Australia, do you understand any English? Interpreter: Do you mean me? Second plaintiff: Yes I can. His Honour: Does your wife understand any English? Second Plaintiff: A little. His Honour: I'm going to adjourn for 20 minutes now and then we'll resume." 56Prior to adjourning his Honour arranged for copies of two legal authorities upon which counsel for the State was relying, to be provided to the plaintiffs. His Honour also took steps to ensure that the plaintiffs understood what, in substance, the argument was that the State was putting before the Court. 57After the adjournment, R S Hulme J asked the plaintiffs what they wished to put by way of submission or argument. He said "Well now, Mr Liu, what do you want to say?". Thereafter, Mr Liu on behalf of himself and his wife, the first named plaintiff, made a series of submissions or else put a series of arguments, seeking to resist the State's motion. His Honour specifically drew Mr Liu's attention to a paragraph in one of the decisions relied upon by the State, and asked what submission, if any, Mr Liu wished to make about that paragraph. Shortly put, Mr Liu submitted that the case did not present any bar to his proceeding. Mr Liu's submissions concluded when he announced to the Court "I'm finished". 58After that, his Honour proceeded to deliver an ex tempore judgment. 59There is no basis, in fact, for the allegation that the plaintiffs, on 2 July 2009, were deprived "of a voice in the proceedings and their right to full participation in litigation". Whilst the hearing of the motion properly commenced in the absence of the plaintiffs, after they arrived, R S Hulme J recommenced the hearing of the motion, ensured that the plaintiffs had been provided with copies of the authorities upon which the State relied, and, after an adjournment to enable the plaintiffs to read those documents and gather their thoughts, his Honour gave the plaintiffs every opportunity to put whatever submissions they wished in opposition to the State's arguments. 60There is no doubt that these allegations by the plaintiffs in this Statement of Claim, are factually wrong and there is no factual basis for the allegations which have been made. 61As well, substantially similar allegations about the conduct of the proceedings before RS Hulme J on 2 July 2009 were made in paragraph 24 of the proposed Amended Statement of Claim dated 9 August 2010, which was handed up to the Court of Appeal on 10 August 2010. The Court of Appeal, as I have noted above, did not, by its orders, permit the plaintiffs to proceed upon that proposed pleading, but rather confined the grant of leave to replead to matters of primary fact relating to the conduct of Senior Constable Kennedy, as I have set out in [20]. The grant of leave specifically excluded any matter concerned with the 2008 proceedings. The judgment at [37] clearly indicates that the Court of Appeal did not regard those matters as having any merit at all. 62The inclusion of this allegation in these proceedings amounts to an attempt to do that which the Court of Appeal in its judgment and orders of 24 August 2010, specifically prohibited. This attempt at re-litigation of this allegation is an abuse of the process of the Court and cannot be permitted.

Reasons for judgment of R S Hulme J of 2 July 2009 63The third and fourth complaints of the plaintiffs about the 2009 proceedings, are appropriately considered together as they raise similar issues. 64As previously indicated, R S Hulme J delivered ex tempore reasons for judgment immediately after the conclusion of the argument. The current Statement of Claim asserts that the judgment of R S Hulme J, which is set out in the Court Reporting Branch prepared transcript form, "... cannot legally be used for the purpose of an appeal". The plaintiffs rely upon the provisions of r 51.27(1)(c) of the UCPR. That rule provides that the Red Book filed with respect to an appeal must contain a sealed or certified copy of the judgment or order. Rule 51.27(1)(d) provides that the Red Book must also contain the reasons for judgment of the Court below. 65Although the Red Book, which is required to contain the relevant documents, was not tendered before me, a copy of the reasons for judgment of R S Hulme J was tendered. The copy tendered demonstrates that it was certified by his Honour's Associate on 2 July 2009. It is not readily apparent what the basis of the allegation is that the reasons for judgment could not legally be used. 66In the course of the oral argument on 10 August 2010, before the Court of Appeal, Mr Liu, who was presenting the arguments on behalf of himself and his wife, asserted that, whilst he understood that the Court of Appeal would review the judgment of R S Hulme J, he wished to "put accusations to you before Court, the judgment was fake". 67Later on, during the course of the argument, the following exchange occurred between the presiding Judge and Mr Liu: "Basten JA: No. Your statement of claim was dismissed by the primary Judge, Justice Hulme. All we are concerned about was whether his Honour was correct to do that or not. We are not going to decide the answers to your questions. Liu: What, here to discuss the reason for judgment? Basten JA: Yes. Liu: Is it a legal document? Basten JA: Yes. Liu: So we can discuss now. I have not opposed it. We can discuss now. Basten JA: Yes, yes." 68In the judgment of the Court of Appeal of 24 August 2010, the Court noted the decision of R S Hulme J of 2 July 2009, and the effect of it. There was no finding that it was not legally able to be used as a judgment for the purpose of the appeal. 69The Court went on to consider the matters raised on appeal by the plaintiffs. In its judgment, the Court of Appeal concluded as follows: "38. Because the primary Judge dealt with the matter purely as a possible claim in negligence or breach of statutory duty, without addressing the factual allegations which might have given rise to an intentional tort, the basis upon which his Honour dismissed the proceedings was flawed. It would have been appropriate for his Honour to strike out the whole of the statement of claim and give leave to replead, whether conditionally or otherwise. That did not occur and the appeal should be allowed." 70It follows from this conclusion, and the orders which were subsequently made by the Court of Appeal, that they did not regard the reasons for judgment or the judgment itself of R S Hulme J, which had been provided to the Court, as being unable to be legally used for the purpose of the appeal. On the contrary, the Court of Appeal regarded the judgment as being the basis for the appeal, and proceeded to deal with the appeal on the basis of that judgment. 71The plaintiffs enjoyed a measure of success on their appeal, against the judgment which they now plead as being one which could not be used for the purpose of an appeal. 72Accordingly, there is no basis for any allegation that the judgment of R S Hulme J was illegal or unlawful, nor that it could not be legally used for the purpose of the appeal, nor that any of the other like allegations in the Statement of Claim is capable of being proved. 73It needs to be kept clearly in mind, that it was the plaintiffs who brought on the grant of leave to appeal, and then proceeded with their appeal through to judgment in the Court of Appeal. That appeal was against the judgment of R S Hulme J, which it is now said was unlawful and unable to be used for the purpose of the appeal. It was the plaintiffs who sought to rely on the judgment, and there is no reason to think that anything that they now plead could possibly succeed. 74As well, the plaintiffs included in paragraphs 25 and 32 of their proposed amended statement of claim, complaints, variously expressed using the terms "untrue" and "falsified" about the lawfulness of the judgment of RS Hulme J, and, in particular, the copy of it provided to the Court of Appeal. As I have indicated above in [61] above, all of these complaints were dealt with by the Court of Appeal in [37] of its judgment. The conclusion which I have expressed in [62] above is equally applicable to this allegation. 75In short, I am satisfied that the inclusion of this allegation is an abuse of the process of the Court.

Judgment of Schmidt J of 18 August 2011 76It is convenient to address together, the complaints made by the plaintiffs in the present proceedings about the 2010 proceedings. 77In substance, the complaints concern the lack of certification on the initial copy of the judgment of Schmidt J of 18 August 2011, provided to the plaintiffs, and a form of certificate on a later copy of a judgment provided by the State to the Court of Appeal. It is said that these erroneous certifications meant that the plaintiffs could not appeal against that judgment, and the orders that were made by her Honour at the conclusion of it. 78It is to be recalled that in the 2010 proceedings, Schmidt J delivered two judgments. The first on 23 June 2011, in which she set out her findings and the general nature of the orders that might be made, but directed the parties to bring in short minutes of order so that the orders could be formally made. It was against this judgment that the plaintiffs unsuccessfully sought leave to appeal. 79On 18 August 2011, her Honour delivered a second judgment, at the conclusion of which, she made formal orders to the effect that the Notices of Motion filed respectively by the plaintiffs, and by the defendant on 5 April 2011, be dismissed, and further, that the Statement of Claim filed on 22 December 2010, be dismissed. She ordered the plaintiffs to pay the State's costs. 80As I have previously noted, there has been no appeal filed against this judgment. No application for leave to appeal has been filed against this judgment. Thus, it is clear that there has been no challenge of any kind to this judgment. 81A copy of this second judgment of Schmidt J which has been tendered to this Court in these proceedings, which is apparently said to be a copy of her Honour's reasons which was provided to the plaintiffs, does not have any form of certification upon it. As best as could be determined from the material put before the Court on the hearing of the present proceedings, by the time the appeal was heard there was a certification contained on a copy of the judgment of Schmidt J. 82As the second plaintiff, Mr Liu, put it to me: "At least proceedings 23 June 2011, the judgment is perfect. They have entry number. They have Associate Judge signature. That we believe legal judgment. We use this for the appeal until somebody tell us this one does not have any legal sense. You have to use the other one which was 18 August 2011. That one without any signature. No one knows true or not. They say you have to base this to appeal. In the Court of Appeal, his Honour Judge Campbell, ask me, his Honour ask me 'which on you depend on?' I say 'This one'. He say 'No, if this one I will dismiss you. If you use other one, you have a chance'. I say 'Other one without a signature' and suddenly they have one which is signed by lawyer for defendant. That is why I say accusation the signature is printed no handwriting. ... " 83I was provided with a copy of the judgment of Schmidt J of 18 August 2011, which was certified as correct by a typed notation to that effect. Except for the form of certification, this copy was in all respects identical to the copy provided to the plaintiffs. This copy was apparently included in the material placed before the Court of Appeal on 84The question of the lack of certification was raised by the plaintiffs both in their written submissions filed in the Court of Appeal, and again on the hearing of the application for leave to appeal before Campbell JA and Handley AJA. Speaking for both plaintiffs, Mr Liu told the Court of Appeal that the Crown Solicitor had, amongst other things, mislead the Court by providing the court with a "... falsified certification of the judgment of 18 August 2011" and that the Crown solicitor had mislead the Court into " ... following the illegal copy of judgment again ...". 85Campbell J (with whom Handley AJA agreed) noted in [21] of his judgment and dismissed the concern expressed by the plaintiffs with respect to the absence of a certification clause on the copy of the judgment of Schmidt J of 18 August 2011 provided to the plaintiffs by the Court's Registry. 86It is pleaded by the plaintiffs here, that the absence of a certification clause meant that they were unable to appeal against the orders of Schmidt J made on 18 August 2011, and that they were confined to an appeal against her Honour's judgment of 23 June 2011, from which no formal orders ensued. 87That is not correct. 88The judgment of the Court of Appeal when dealing with the application for leave to appeal, included the following: "19. There is evidence before the Court that the Crown Solicitor's Office wrote to Mr Liu on 18 August 2011, contending that no orders had been made on 23 June 2011, and suggesting that the applicant's might consider whether they wished to amend the application for leave so that it related to Orders that had been made on 18 August 2011. That invitation to amend was not availed of before today's hearing 20. At the start of the hearing today, Mr Liu was again given the opportunity either to amend the application, or to supplement it, so that it related to the orders of 18 August 2011. He declined to take that opportunity. ... 21. In the course of submissions today, Mr Liu made numerous objections to the procedure by which this application for leave to appeal has come before the Court today. One particular type of objection related to the authenticity of judgments that have been given in the proceedings. That is an objection that is of no substance because the Court takes judicial notice of its own judgments and knows through that judicial notice what judgments have been given and in what terms. 22. Other objections were taken, but they need not be dealt with specifically because there is a fundamental problem with today's application. It is impossible for this application for leave to appeal to succeed." 89The Court went on to indicate that the basis for the final sentence in [22], was that the judgment delivered by Schmidt J on 23 June 2011, did not result in the making of any orders and hence, there was nothing against which an appeal could be heard and determined. 90The Court of Appeal concluded: "24. Her Honour made no orders of the type that are sought to be appealed against on 23 June 2011. It is impossible to appeal against orders that have not been made. For that reason, the application for leave to appeal must be dismissed." 91As I have earlier indicated, the High Court of Australia dismissed an application for special leave to appeal against this decision of the Court of Appeal. 92The Statement of Claim presently before the Court, when dealing with this allegation, continues to maintain the proposition that the plaintiffs were unable to appeal against the judgment of Schmidt J of 18 August 2011 because it was not certified. 93That allegation has been dealt with, and adversely so, to the plaintiffs by the Court of Appeal. The simple reality is that this Statement of Claim seeks to contest the judgment of the Court of Appeal to that effect. The High Court of Australia has refused to grant special leave to challenge that judgment, saying that there is no reason to doubt the correctness of the decision of the Court of Appeal. 94Accordingly, the allegations in the current Statement of Claim to the effect that the judgment of Schmidt J "had no certification and therefore cannot be legally used by the plaintiffs for the purpose of an appeal" are manifestly erroneous, contrary to a determination of the Court of Appeal, and are unable to be proved. 95The plaintiffs have entirely overlooked the way in which the UCPR operate relevantly, in the circumstances of the 2010 proceedings about which complaint is made. The requirement for certification for reasons for judgment to be included in the white folder to be filed with a summons seeking leave to appeal, is to be found in r 51.12(2)(c) of the UCPR. The Court has the power, by order, to dispense with any requirement of the UCPR, if satisfied that it is appropriate so to do: s 14 Civil Procedure Act 2005. In exercising any such power, the overriding purpose is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act. 96Clearly, the absence of a formal certification or else an incorrect certification, even if this was established, and I am far from persuaded that this was so, would not prevent a plaintiff from seeking leave to appeal from, or else appealing against, the judgment in that form. All that was required was an application to dispense with the rule requiring certification. 97Clearly, it was this operation of the UCPR which stood behind the invitation made to the plaintiffs to consider whether they wished to amend their application to the Court of Appeal to include seeking leave to appeal against the second judgment of Schmidt J of 18 August 2011. 98There is simply no merit in the allegations of the plaintiffs.

Conclusion 99It follows from an examination of each of these fundamental allegations, that none of them are able to be proved, and each of them continue to raise matters which have been subsumed in, and overtaken by, the judgments of the Court of Appeal in the 2008 and 2010 proceedings. 100More importantly, the factual allegations do not support any element of an intentional tort by the State. The State is not vicariously liable for the conduct of this Court or of its officers, yet that seems to be one basis for the complaints of the plaintiffs. 101As well, if there was such a tort, the pleading in paragraph 15 of the Statement of Claim is that it caused damage of the kind which the plaintiffs rely upon having in fact been caused by the original conduct of the various police officers, set out in the particulars of 22 December 2010, and which was subject to the claims for damages in the 2008 and 2010 proceedings, both of which have been dismissed. 102I am satisfied that the current proceedings do not disclose any cause of action which is open to the plaintiffs. 103Because of these conclusions, it follows that the two Notices of Motion brought by the plaintiffs ought to be dismissed. They are both procedural motions. One seeks that any final hearing be by a jury. The other seeks to review a decision by the Registrar. They are both now otiose. In any event, neither had any merit, and they should be dismissed. 104Further, I am well satisfied that the continued repetition of matters of fact, and issues which have been determined in previous judgments of the Court of Appeal, contrary to the way in which the Court of Appeal has dealt with those matters, amounts to an abuse of process.

Relief 105The plaintiffs did not seek leave to re-plead the material in the Statement of Claim. On the contrary, they asserted that the material in the Statement of Claim contained all of the matters upon which they wished to rely to make out their cause of action. 106I am satisfied that no reasonable cause of action is disclosed in the proceedings, and that the proceedings are an abuse of process. 107I am also satisfied that because these findings are clear and that there is no prospect of any reasonable cause of action being able to be pleaded on the basis of the facts in the current pleadings, this is a case in which the Court ought dismiss the proceedings summarily.

Orders 108I make the following orders: (1)Notices of Motion filed by the plaintiffs on 12 July 2012, and 7 August 2012 dismissed. (2)Statement of Claim filed 3 July 2012 dismissed. (3)Plaintiffs to pay the defendant's costs.

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: 19 April 2013

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