Wang v State of New South Wales [2019] NSWSC 1332 | Case summary

Supreme Court of NSW|2019-10-01|Before: Adamson J, Harrison J

Solicitors: Crown Solicitor's Office (First Defendant) Colin Biggers & Paisley (Second Defendant) File Number(s): 2019/227867

Introduction

By notice of motion filed on 7 September 2019, the State of New South Wales (the first defendant) seeks orders pursuant to s 61(2)(c) of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 2.1 and the inherent jurisdiction of the Court. The orders sought include orders that the plaintiff's motion filed on 23 September 2019 be stood over to be heard with the motions already fixed for hearing on 30 October 2019; and that until 31 October 2019 any further application by the plaintiff in these proceedings be made only with leave granted by the Registrar, a common law duty judge or other judge of the Supreme Court. The first defendant also seeks an order that, until 31 October 2019, the registry not accept the filing online or in person of any notice of motion from the plaintiff in these proceedings without leave having been granted in accordance with that order. An order is also sought that the plaintiff pay the first and second defendants' costs of the notice of motion.

The background to the application

In order to explain the background to the notice of motion and the basis for the application it is necessary to summarise, albeit briefly, the proceedings to date. On 23 July 2019, Li Wang (the plaintiff) filed a statement of claim. The statement of the claim reproduces paragraphs which were contained in a statement of claim filed by the plaintiff on 26 April 2013 in this Court. The earlier statement of claim was the subject of orders made by Harrison J in Wang v State of New South Wales [2014] NSWSC 909. On 8 July 2014 Harrison J made orders including that Mr Liu take no further or other step to carry on proceedings in his capacity as the plaintiff's tutor until a notice of appearance by a solicitor appointed to act for him in that capacity in those proceedings had been filed in the Registry and served on the defendant. The proceedings were stayed.
It is not necessary for the purposes of first defendant's notice of motion to consider the precise effect on these proceedings of the orders made by Harrison J. However, the orders which were made in previous proceedings commenced on behalf of the plaintiff provide, in my view, additional justification for the first defendant's application and a reason for the Court to exercise its discretion in the manner sought by the first defendant.
On 21 August 2019 the plaintiff in these proceedings filed a notice of motion seeking summary judgment. On 6 September 2019 Colin Hodgson (the second defendant) filed a notice of motion seeking that the plaintiff's statement of claim be struck out or summarily dismissed. These two motions came before the Registrar on 10 September 2019. The Registrar set down both notices of motion for hearing on 30 October 2019.
The plaintiff, who, by leave, appeared by her husband Mr Liu, informed me that she regarded the delay in the allocated date for the hearing of her notice of motion to be "unfair". On the basis of this belief, she filed a second notice of motion two days later seeking summary judgment. She also sought to challenge the orders made by the Registrar on 10 September 2019.
The second motion for summary judgment came before the Registrar a week later on 19 September 2019. On that date the Registrar referred the matter to Campbell J who was then sitting as the duty judge. The first defendant, with the support of the second defendant, applied for an order that the plaintiff not be permitted to file any further notice of motion without prior leave of the Court. The application was not made by notice of motion since it was made in response to the plaintiff's second motion for summary judgment. His Honour refused the first defendant's application and ordered that the plaintiff's motion filed on 12 September 2019 be stood over to be heard with the motions already filed which had been allocated a hearing date of 30 October 2019. In Wang v State of New South Wales [2019] NSWSC 1298 Campbell J said, of present relevance, at [14]: "I can see why those parties [the first and second defendants] are motivated to make that application. However, it does seem to me without considering all possible permutations that may legitimately arise that such an order is not called for, and I decline to make the order. However, doubtless the defendants will consider their position in relation to formalising such an application should there be any further attempt to cavil at [sic] the orders made by the Registrar on 10 September 2019."
Four days later, on 23 September 2019, the plaintiff filed a third motion. Again she sought summary judgment and challenged the orders made by Registrar Bradford on 10 September 2019.

The present application

On 27 September 2019 the first defendant filed the motion which I referred to at the outset of the proceedings seeking, as I have said, a prohibition on any further applications by the plaintiff without leave until 31 October 2019, being the day following the hearing date allocated for all of the motions filed to date in the proceedings.
As I have said, the plaintiff's husband sought leave to appear on her behalf. I propose to grant that leave for the purposes of the hearing of the first defendant's notice of motion. The plaintiff, through her husband, made various submissions about the legality of various procedural acts by the first and second defendants and by the Court. For example, the plaintiff challenged the date of filing of the notices of appearance. Furthermore, it is said that because the notice of motion was signed by a solicitor employed by the Crown Solicitor and not by the Crown Solicitor herself that the first defendant's notice of motion was irregular and invalid and ought not be accepted. Matters of that variety have been raised by the plaintiff and several instances have been referred to. A substantial number of portions of the UCPR have been referred to by the plaintiff in her submissions in opposition to the first defendant's notice of motion.

Consideration

It is important in dealing with matters such as these to recall the principles of case management to facilitate the just, quick and cheap resolution of the issues in dispute in the conduct of proceedings in this Court.
For the plaintiff to file not only two but three notices for summary judgment would, on its face, appear to be an abuse of the processes of this Court. Such multiplication necessarily requires other parties, such as the first and second defendant, to expend costs in attending court at the return of those notices of motion and also to take the proactive step, as the first defendant has done, of seeking an order to prohibit any further applications, having regard to the hearing date which has already been allocated. It is inimical to the interests of justice and deleterious to the administration of justice for several applications to be on foot which seek the same thing. It takes the time of duty judges which could otherwise be used to hear other matters in the list. It causes disruption to the list and involves an element of queue-jumping over other litigants who have their matters before this Court.
I am satisfied on the basis of the submissions made by Mr Le Plastrier, who appears on behalf of the first defendant, which were supported by Mr McManus, who appears on behalf of the second defendant, that it is appropriate to make the orders sought in the notice of motion. The matter will come before this Court for hearing on 30 October 2019. To the extent to which the plaintiff does not regard this as being soon enough she needs to appreciate that her matter must take its place in a queue with other matters in the list. The plaintiff is not entitled to any greater priority than is reflected by the allocation of the hearing date on 30 October 2019.

Costs

The first defendant seeks an order that the plaintiff pay the first and second defendants' costs of this motion. It seems to me that there is no reason why costs ought not follow the event in accordance with the general rule: UCPR, r 42.1. Before making that order I gave the plaintiff an opportunity to make submissions as to why the usual order for costs ought not be made in this case. The plaintiff was unable to articulate any reason why the general rule that costs ought to follow the event ought not apply.
For the foregoing reasons I make orders in terms of prayers 1, 2, 3, and 4 of the first defendant's notice of motion filed on 27 September 2019. I stand the proceedings over to 30 October 2019 for the hearing of the motions in accordance with the directions made by the Registrar on 10 September 2019.

Orders 1. The plaintiff's motion filed on 23 September 2019 is stood over to be heard with the motions already fixed for hearing on 30 October 2019. 2. Until 31 October 2019, any further application by the plaintiff in proceedings 2019/227867 may be made only with leave granted by the Registrar, Common Law duty judge or other judge of the Supreme Court. 3. Until 31 October 2019, the Registry is not to accept for filing, online or in person, any notice of motion from the plaintiff in proceedings 2019/227867 without leave being granted in accordance with order (2). 4. Order the plaintiff to pay the first and second defendants' costs of this motion.

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Wang v State of New South Wales

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