Wang v State of New South Wales

ex tempore Judgment (revised) 1HIS HONOUR: The plaintiff, Li Wang, brings a claim against the State of New South Wales for damages arising out of an incident that happened in January of 2004 and the New South Wales Police Force's investigation of that incident. It is not the first time that she has brought such a claim, see for example Wang v New South Wales [2009] NSWCA 340; Wang v New South Wales [2010] NSWCA 2009; Wang v New South Wales [2011] NSWSC 609; Wang v New South Wales [2011] NSWSC 882; Wang and Liu v New South Wales [2011] NSWCA 321. 2None of those proceedings are proceedings with which I am dealing, although reference to them is necessary to understand the background of the case. The statement of claim commencing the present proceedings was filed on 26 April 2013. It is accepted that the plaintiff is under a legal incapacity as that expression is defined by s 3 of the Civil Procedure Act 2005 (NSW). 3I have neither seen nor received evidence as to her legal incapacity and I am not familiar with its nature and content. However, it appears that all previous proceedings have been carried on by her tutor and having observed her in court today and yesterday, I have no doubt at least for present purposes that she is under a legal incapacity. 4Accordingly, the plaintiff may not commence or carry on proceedings except by a tutor: see rule 7.14(1) Uniform Civil Procedure Rules 2005 (NSW) (UCPR). A person may become a tutor of a person under a legal incapacity without the need for any formal instrument of appointment or any other order of the Court: UCPR 7.15(1). 5Two other rules relating to tutors are relevant for present purposes. First: "Unless the Court otherwise orders, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor." UCPR 7.14(2). Secondly: "A person may not replace another person as tutor except by order of the Court." UCPR 7.15 (5). 6Ms Yan Liu, who I understand to be the plaintiff's daughter, consented to act as tutor in a document filed in the Court on 6 June 2013. Notice that a solicitor was appointed to act as the plaintiff's solicitor was filed on 24 June 2013. However, a notice of intention to file a notice of seeking to act was then filed on 17 April 2014 and such a notice was in fact filed on 24 April 2014. The reasons for that are not clear to me. 7The matter came before me yesterday while I was sitting as the duty judge. The plaintiff's tutor did not attend. However, the plaintiff's husband Mr Yu Liu attended and sought to speak for the plaintiff. The defendant, represented by Mr Hodgson of counsel, did not object to that course although he made it clear that his client did not consent to Mr Liu becoming the plaintiff's tutor and resisted the filing in court of some documents which Mr Liu attempted to file in court. I marked those documents exhibit A and exhibit B. It was not immediately clear to me as to why the matter was before the Court. However, Mr Hodgson indicated that he sought a stay of proceedings but that stay being conditional upon the issues of the legal representation and the replacement of the tutor being resolved. 8Mr Liu, and at times the plaintiff herself, made it clear that they wanted Mr Liu to represent the plaintiff both as tutor and as advocate. They also made it clear, by the tender of exhibit A and by their conduct earlier in the proceedings, that they wanted to make some amendments to the statement of claim. They also, implicitly at least, seek for the case to be heard and heard expeditiously. 9I note in passing that because of the confusion surrounding the issue of the plaintiff's tutor and legal representation, the Registrar had made an order back in June 2013 that the defendant was not required to file a defence until further order of the Court. As nearly as I can tell, there has been no such order. 10In the course of yesterday's hearing, both Mr Hodgson and Mr Liu made extensive reference to the past proceedings to which I have referred in paragraph 1 of the judgment. As I understand it, they are not the only judgments of this Court and the Court of Appeal. 11While that was helpful to allow me to understand the backdrop of the present proceedings, it seems to me that I am presently concerned with the proceedings that were commenced on 26 April 2013. Obviously enough, if questions of estoppel or res judicata or similar type defences are raised by the defendant, as it is anticipated at least with respect to some parts of the statement of claim they will be, the content and substance of the earlier litigation will be, at least in respect of that part of the case, a central issue. But for present purposes, I must focus on the case as it presents to me. 12Yesterday, I indicated to Mr Hodgson that I was not prepared to grant a stay, even a conditional one, in the absence of any notice of motion and supporting affidavit. And it was for that reason that the case was adjourned until this morning. Mr Hodgson and his instructing solicitors, if I may be so bold to say so, worked diligently and efficiently in providing the Court and Mr Liu with both a notice of motion and an affidavit of Marjorie Collins which were filed in court. They were also helpfully provided late yesterday afternoon by some form of electronic means. 13The motion, as foreshadowed by Mr Hodgson yesterday, seeks a stay pursuant to s 67 of the Civil Procedure Act until either the plaintiff's tutor, Ms Yan Liu is represented by a solicitor or a notice of motion for the removal of Yan Liu as the plaintiff's tutor and for the appointment of a replacement tutor. I might add at this point that this morning, the plaintiff through her husband (Mr Liu), who continues to act for her, at least in these preliminary skirmishes, filed or attempted to file in court a notice of motion which seeks five specific orders: (1)Remove consent to act as tutor filed 6 June 2013. (2)Based on fresh evidence (the medical-legal reports of Dr Phillip Brown dated 22 October 2013), the plaintiff seeks leave to amend the statement of claim. (3)As the proposed amended statement of claim will be significantly different to the original statement of claim, the plaintiff seeks the court's leave to remove the original statement of claim so as to avoid confusion. (4)The Defendant's notice of motion filed date 30 May 2013, namely numbers 1, 4, 5 and 6 be struck out pursuant to UCPR 2005 rule 14.28. (5)Defendant's notice of motion filed date 13 April 2014 should be struck out pursuant to UCPR 2005 rule 14.28 as it discloses no reasonable cause of action or is otherwise an abuse of the process of the court. 14Relevantly the first order is for removal of consent to act as tutor filed 6 June 2013. There are a number of other orders sought but they are not presently relevant. Mr Hodgson on the part of the defendant objected to the filing in court of that document. As I understand it, this was on the basis that there was no standing in Mr Liu to file it and also on the basis that a number of the issues sought to be ventilated there, are not able to be dealt with before the issue of a tutor and legal representation is sorted out. 15As importantly, he makes the point that the first order sought whilst it plainly is intended to overcome the difficulties raised by the defendant, does not address the question of legal representation and does not address the question of who is to replace the tutor. 16But in a real sense, whilst the parties have been in opposition to each other, at least in terms of the tone of the submissions that have been addressed to me, they really want the same thing in the shorter term. What they want is for the question of Ms Wang's tutor to be resolved as well as the question of whether that tutor, whoever it may be, should be represented by a lawyer. 17It is not any part of my judgment today to consider the reasons, both historically and under the Rules, why it is appropriate that a tutor should ordinarily be represented by a lawyer. But a couple of other matters need to be mentioned to complete at least a partial picture of the case. (i)On 14 April 2014, an attempt was made to file in the registry a document entitled, "Consent order". That involved a request by the plaintiff for Yan Liu to be replaced by Yu Liu as her tutor. It was signed by the plaintiff, Ms Liu and Mr Liu but not by the legal representatives of the defendant. (ii)On the same date (14 April 2014) a consent by Mr Liu to act as tutor was filed. That document included a certification by a solicitor that Yu Liu, "does not have an interest in the proceedings adverse to the interests of Li Wang" under UCPR 7.16(b). (iii)No order has been made by the Court under UCPR 7.15(5) allowing Mr Yan Liu to be replaced as a tutor. (iv)No order has been made by the Court under UCPR 7.14(2) allowing the tutor, whoever that may be, to carry on the proceedings without a solicitor. 18I have some sympathy with the plaintiff's position. As I commented in argument yesterday, it was obvious from the plaintiff's conduct in court that she wants her husband to represent her interests. She has in the course of yesterday's hearing and today, freely come into the Court and left again and said on more than one occasion "I only want my husband" and "they", referring I think to lawyers generally, "want me to lose". This morning she said: "I only trust my husband", "The defendant wants me to lose" and "My husband is number one". 19Whether a tutor will be allowed to act in the absence of a legal representative, turns on the particular facts and circumstances of the case. These include, but are by no means limited to, whether the nominated tutor is capable of dealing with the legal and factual issues that are likely to arise. Without making any final decision on the matter having listened to Mr Liu's attempts to articulate his wife's case, I have serious doubts whether that is the case here. But that is for another day and for another judge. 20It also turns on whether it is impossible or impracticable for the tutor or the plaintiff to have a lawyer. The wishes of the plaintiff if they can be discerned may also be a relevant factor. There is no evidence of these matters before the Court. And for Ms Wang as plaintiff and for Mr Liu as her representative, as it were, to succeed there must be such evidence. 21In A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363, Johnson J allowed the plaintiff to be represented by his tutor and without a legal representative. In one of the plaintiff's earlier cases, Schmidt J did not: see Wang v New South Wales [2011] NSWSC 609. 22As I have said, at this stage apart from the plaintiff's expressed wishes, the weight to be given to which is impossible for me to determine because I have no understanding of the extent and nature of her incapacity, I have insufficient knowledge of any of the facts to make a determination about those matters. It will be necessary for the plaintiff to file evidence going to those issues and to seek orders by way of notice of motion. 23It is the case that Mr Liu had this morning in exhibit D, made a start, at the filing of a notice of motion. But that notice of motion has to be refined, in order for these issues to be determined. The sooner that that happens, the sooner the case can advance. 24The application for stay, as Mr Hodgson properly and readily conceded, is really calculated to get the case on track in terms of the issues that I have just been ventilating and which have been ventilated for some time in this courtroom yesterday and today. 25I propose in the circumstances to make a number of orders which are in the nature of case management. The objective of the orders is to get the case moving. The objective of the orders is for the plaintiff to have the opportunity to put evidence before the Court on the issues that arise both in terms of who the tutor should be and whether the tutor needs to be represented by a lawyer. 26I make the following orders: (1)By 28 May 2014 the Plaintiff is to file and serve an amended Notice of Motion whereby: (a)Order 1 in the current Notice of Motion in amended to read 'An order for the replacement of the current tutor (Yan Liu) with a different tutor, namely Yu Liu or some other nominated person.' (b)An order is sought seeking an order under rule 7.14(2) that the tutor appear other than by a solicitor. (2)By 28 May 2014, the plaintiff is to file and serve affidavit evidence in support of the Notice of Motion. That evidence must include but is not necessarily limited to: (a)The reasons Yan Liu is sought to be replaced as a tutor. (b)That reasons it is said that Yu Liu is an appropriate replacement. (c)The reasons that legal representation cannot, has not or will not be obtained. (3)By 13 June 2014, the defendant is to indicate, in short firm, which of the orders it consents to, which of the orders it opposes and the basis of that opposition. (4)By 13 June 2014, the defendant is also to file and serve any evidence it proposes to rely on in opposition to the plaintiff's amended Notice of Motion. (5)By 20 June 2014, the plaintiff is to file and serve written submissions in support of its Notice of Motion. (6)By 27 June 2014, the defendant is to file and serve written submissions in response. (7)The proceedings are stayed until the Plaintiff has complied with orders 1 and 2 above. (8)The proceedings are adjourned for hearing of the Notice of Motion on Friday 4 July 2014. (9)The matter will be listed for call-over before the Registrar on Friday 27 June 2014 to determine its readiness for hearing of the Plaintiff's amended Notice of Motion. (10)The current tutor (Yan Liu) is to attend at the hearing of the Notice of Motion on Friday 4 July 2014. (11)Mr Liu to serve a copy of the Notice of Motion of the current tutor Yan Liu in accordance with 7.18(4). (12)Costs are reserved.