Wang v State of New South Wales

Judgment 1EMMETT JA: By summons filed on 1 August 2014, the applicant, Ms Li Wang, seeks leave to appeal from orders made by Harrison J on 8 July 2014. Leave to appeal is required because the orders were interlocutory (Supreme Court Act 1970 (NSW), s 101(2)(e)). The respondent, the State of New South Wales (the State), opposes the leave sought. 2The orders were made in proceedings brought in the name of Ms Wang against the State under the Crown Proceedings Act 1988 (NSW) (the Crown Proceedings Act). The proceedings were brought in the name of Ms Wang by her tutor, Ms Yan Liu, who is Ms Wang's daughter. The proceedings fall within the Crown Proceedings Act as alleging vicarious liability on the part of the State for intentional torts of a police officer. In the statement of claim filed in the proceedings, allegations are made in respect of the conduct of a police officer who investigated Ms Wang's report to the police in January 2004 of an alleged assault by her landlord. The proceedings are the fourth attempt made to litigate issues in which Ms Wang is critical of the conduct of the police officer in question. 3By notice of motion dated 13 May 2014, the State sought an order that the proceedings be stayed until either Ms Wang's tutor is represented by a solicitor or a notice of motion is filed for the removal of Ms Yan Liu as tutor and for the appointment of a replacement tutor. It appears that at some stage a notice of motion was also filed on behalf of Ms Wang, although that notice of motion is not presently before the Court. 4On 14 May 2014, Hamill J ordered Ms Wang to file and serve an amended notice of motion amending her current notice of motion to seek an order for the replacement of Ms Yan Liu with a different tutor, namely, Mr Yu Liu, Ms Wang's husband, or some other nominated person, together with an order that such tutor appear other than by a solicitor. Ms Wang was also ordered to file and serve affidavit evidence as to the reasons why Ms Yan Liu should be replaced as a tutor, the reasons why Mr Yu Liu was an appropriate replacement and the reasons why legal representation cannot, has not or will not be obtained. 5On 27 May 2014, Ms Wang filed an amended notice of motion seeking, relevantly, the replacement of Ms Yan Liu with Mr Yu Liu and an order that Mr Yu Liu appear as tutor without legal representation and leave to file an amended statement of claim. The amended notice of motion also sought further relief that is not presently relevant. The amended notice of motion was supported by an affidavit of Mr Yu Liu affirmed on 27 May 2014. The affidavit annexed numerous documents, but did not in any way respond to the orders made by Hamill J relating to evidence supporting the relief that was sought in the notice of motion concerning the replacement of Ms Wang's tutor and the absence of legal representation. 6On 1 July 2014, Ms Wang filed a further notice of motion seeking orders relating to affidavits and submissions filed on behalf of the State. The terms of that notice of motion are not presently relevant. 7The three notices of motion were heard by Harrison J on 4 July 2014. The State indicated that it did not oppose the removal of Ms Yan Liu as tutor, on the condition that she remained liable in respect of everything done in the proceedings and all costs incurred from 6 June 2013, the date on which she first filed her consent to act as tutor, up to the date of her removal. However, the State opposed the appointment of Mr Yu Liu as tutor. In the event that Mr Yu Liu was appointed as tutor, the State also opposed Mr Yu Liu carrying on the proceedings as tutor except by a solicitor. 8For reasons published on 8 July 2014, Harrison J made orders that: (1)Ms Yan Liu be removed as Ms Wang's tutor. (2)Mr Yu Liu be appointed as Ms Wang's tutor. (3)Mr Yu Liu take no further or other step to carry on the proceedings in his capacity as Ms Wang's tutor until a notice of appearance by a solicitor appointed to act for him in that capacity in the proceedings has been filed in the Registry and served on the State. (4)The proceedings be stayed pending compliance with Order 3 or until further order. 9By her summons of 1 August 2014, Ms Wang seeks leave to appeal from Order 3 made by Harrison J. That necessarily raises Order 4, which is dependent upon Order 3. 10While the State opposed the appointment of Mr Yu Liu as Ms Wang's tutor, the State does not seek to challenge that determination in this Court. Essentially, Ms Wang seeks leave to challenge the exercise of discretion by Harrison J in declining to make an order that Mr Yu Liu may conduct the proceedings as Ms Wang's tutor without legal representation. That would be the issue that would be raised by the appeal, if leave were to be granted. 11On 1 August 2014, a summary of argument in support of the application for leave was filed on behalf of Ms Wang. The summary made no attempt to address the question as to whether the exercise of discretion by Harrison J miscarried when his Honour declined to order that Mr Liu could act as tutor without a solicitor. 12The summary of argument also complained that the State had not asked for Order 3 made by Harrison J. The complaint appears to be that Harrison J was not asked to make an order that no further step be taken in the proceedings until a notice of appearance by a solicitor acting for Mr Yu Liu was filed. That complaint overlooks the fact that Ms Wang's notice of motion of 27 May 2014 sought an order that Mr Liu be appointed without the need to appoint a solicitor to act for him in his capacity as tutor. Order 3 was an appropriate exercise of incidental power, once it was determined that Ms Wang's tutor should not be permitted to act without legal representation. There is no substance in the complaint. 13Rule 7.14(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that a person under legal incapacity may not commence or carry on proceedings except by his or her tutor. A person who is incapable of managing his or her affairs is a person under legal incapacity for the purposes of that rule. It appears to be common ground that Ms Wang is a person under legal incapacity. 14Rule 7.14(2) provides that, unless the Court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor. The provision does not specify any ground upon which the Court may otherwise order. However, in his reasons of 8 July 2014, Harrison J outlined in some detail the principles applicable to the exercise of the discretion conferred by r 7.14(2). 15In general, the public interest in the efficient and proper conduct of litigation, according to general standards of professional competence and probity, requires litigation to be conducted by properly qualified practitioners. Whilst the court may permit litigation to be conducted other than by legal practitioners, such leave should ordinarily be regarded as an occasional expedient, for use primarily in emergency situations when counsel is not available, in straightforward matters where the assistance of counsel is not needed by the court or where it would be unduly technical or burdensome to insist on counsel. His Honour also referred to similar principles applicable to waiver of the requirement that litigation by a company be conducted only through a solicitor. 16Harrison J did not find the submissions made by Mr Yu Liu or Ms Wang particularly helpful, in that they were not directed to the issues before him. In particular, Mr Liu was unable to point his Honour to any evidence of the type required by Hamill J that illuminated the question of why Ms Wang's tutor should not be required to appear by a solicitor and why the Court should order otherwise as contemplated by r 7.14(2). 17Harrison J recorded that Mr Liu appeared and conducted the case for Ms Wang, accompanied by her sitting at the bar table with him. Ms Wang constantly and emotionally contributed to the proceedings and occasionally wailed and wept while seated. His Honour said that Ms Wang stood up from time to time and remonstrated with him and with counsel for the State. The same can be said of Ms Wang's conduct in the application for leave. Such conduct is indicative of possible difficulties that could arise if Ms Wang were to sit at the bar table with her husband if there were no legal representation. 18Harrison J considered that Mr Liu was struggling with the task that confronted him. His Honour characterised Mr Liu's conduct, represented by the form and content of his pleadings, his affidavits and his submissions, as "extravagant to say the least". Thus, there were allegations of what amounts to deceitful conduct on the part of the State and other unsupported allegations of impropriety, which were characterised by the State as "scandalous". His Honour found no current support for any such allegations. 19Harrison J then observed that there may well exist an authentic foundation for Ms Wang's dissatisfaction with what happened to her. His Honour said that it was certainly not out of the question that the relevant facts may be capable of supporting the existence of a cause of action known to the law. Unfortunately, his Honour said, it would appear that no professional assessment of that possibility had ever been conducted for Ms Wang and certainly not one that produced any pleadings capable of withstanding scrutiny. 20Harrison J considered that there were "two overarching realities in this case". The first was that Mr Liu will remain active and influential in the future conduct of the proceedings, whether in the capacity of tutor, or simply as Ms Wang's husband, in precisely the same way that he has been so far. The second reality was that Mr Liu and Ms Wang will neither take any steps themselves to appoint a solicitor to represent them, nor take or accept any advice that any such solicitor might provide, if that occurred. His Honour recorded that he had been informed that attempts to appoint a legal adviser through the Court's pro bono panel had achieved nothing, in so far as lawyers who were approached were not prepared to undertake the task. His Honour considered that any principled basis that may exist for refusing to permit Ms Wang's tutor to continue to represent her without a lawyer necessarily had to confront the same considerations. 21Harrison J considered that it would be possible to make a case that any proposed tutor in the proceedings ought not to be permitted to appear without a lawyer for one or more of the reasons identified in Damjanovic v Maley [2002] NSWCA 230; 55 NSWLR 149 at [69]-[86]. On the other hand, Harrison J said, any other conclusion would potentially also confront the very real prospect that Ms Wang would be denied access to justice, albeit for different reasons. His Honour considered that the efforts of Ms Wang and Mr Liu have produced nothing more than procedural conclusions that were "at best mildly encouraging or at worst totally unsuccessful". 22Harrison J did not consider the case that Ms Wang wishes to prosecute to be particularly complex, if viewed from the point of view of a legal practitioner customarily concerned with cases of intentional torts involving the police. His Honour considered that the case is factually fairly straightforward, even taking into account all the detail that is included in Ms Wang's proposed amended statement of claim. As yet, no defence has been filed so it could not be said that the legal issues had completely materialised or crystallised. Even so, his Honour did not consider that the legal questions would be overly difficult or complicated. 23While Harrison J found Mr Liu difficult to understand when he speaks, his written material is perfectly easy to read and to understand. The major genuine difficulties are substantive and procedural, rather than communicative. His Honour considered that Mr Liu will be unable to do the best for Ms Wang if he persists with his refusal to obtain a solicitor or barrister to appear for him as tutor. 24Harrison J concluded that Ms Wang and Mr Liu will never be able to do themselves justice in these proceedings without legal assistance. With limited exceptions, that has proved so far to be the case. His Honour concluded that, whatever may be the hypothetical strength of the case that Ms Wang wishes to pursue, there is almost no likelihood that the Court will ever be able to assess it accurately or fairly, if her tutor is not legally represented. Therefore, in that very important respect, the interests of justice could not, on balance, be served by granting Ms Wang the leave that she seeks for her tutor not to be represented by a solicitor. His Honour therefore declined to make an order in terms of r 7.14(2) and ordered that, pending compliance with that provision, the proceedings be stayed. 25Ms Wang's summary of argument in support of her summons for leave does not address the question raised by her application. As I have said, there is no evidence in support of the contention that Mr Liu should be permitted to conduct the proceedings as tutor without legal representation. As Harrison J's orders involved the exercise of a discretion, it would be necessary for Ms Wang to demonstrate an error of the kind referred to in House v The King [1936] HCA 40; 55 CLR 499 before she could succeed in her proposed appeal. No error of legal principle, material error of fact, taking into account of an irrelevant matter or failure to take into account or to give sufficient weight to a relevant matter has been asserted, much less demonstrated, by Ms Wang and Mr Liu. There is nothing in the reasons of Harrison J to suggest any such error. 26Since no error in the exercise of discretion has been raised or demonstrated, there is no likelihood of success in the proposed appeal. Further, it would be open for Ms Wang at any time, should circumstances change, to make a further application under r 7.14(2), supported by the appropriate evidence as to why her tutor should not be represented by a qualified legal representative. The application for leave should be dismissed with costs. 27GLEESON JA: I agree with Emmett JA.