Wang v State of New South Wales

The first statement of claim in this court

1. On 29 December 2008, the plaintiff and Mr Liu (both as plaintiffs) filed a statement of claim against the State of New South Wales in the first Supreme Court proceedings. They did not retain solicitors, and Mr Liu appeared for them. On 10 March 2009, the State of New South Wales (the first defendant in these proceedings) filed a notice of motion seeking orders that the proceedings be dismissed, or alternatively, that the statement of claim be struck out. On 2 July 2009, that notice of motion, together with notices of motion filed by the plaintiff and Mr Liu, came before R S Hulme J. His Honour held that neither the original statement of claim, nor the proposed amended statement of claim, identified a cause of action known to law for which damages were available. His Honour ordered that the statement of claim be dismissed and that the plaintiff and Mr Liu pay the defendant's costs. The plaintiff and Mr Liu filed a summons seeking leave to appeal from his Honour's decision.
2. On 14 October 2009, the Court of Appeal heard an application for leave to appeal from the decision of R S Hulme J dismissing the plaintiff's statement of claim. At the conclusion of the hearing the following exchange took place (at T 10.20-33): "BASTEN JA: Well Mr Liu, what I have ordered is that you be referred to the Registrar who will find you a lawyer to act for you and assist you for free. Whether you accept the lawyer's advice or not is entirely up to you. But whatever you do, unless you get an extension of time from the Registrar you must put on that notice of appeal within 60 days. LIU: Yes. BASTEN JA: Whether you have a lawyer when the appeal is listed for hearing next year is entirely a matter for you. The Court doesn't order you to have a lawyer, it merely provides the facility for you to obtain that advice and assistance. Okay? LIU: Yes."
3. These comments were addressed at assisting the plaintiff to obtain pro bono assistance. These comments did not grant the tutor of a person under legal incapacity with leave to commence or carry on proceedings without a solicitor. This is reflected in order (4) of the judgment. However, the plaintiff and her tutor have adopted the position that Basten JA's comments in the transcript of the leave application constitute a decision that Mr Liu as tutor does not have to be represented by a solicitor.
4. On 14 October 2009, the Court of Appeal granted the plaintiff leave to appeal. Relevantly, order (4) referred the plaintiff, Ms Wang, to the Registrar for referral to a lawyer on the Pro Bono Panel for advice and assistance in preparing for the appeal and, if it as thought to be appropriate, for representation at the hearing of the appeal.
5. On 10 October 2010, the Court of Appeal heard the appeal. At that time, the plaintiff and Mr Liu proffered a further proposed amendment to the statement of claim dated 9 August 2010. In addition to allegations concerning the misconduct of Senior Constable Kennedy, the proposed amended statement of claim raised allegations related to the misconduct of other police officers including police prosecutor Ian Casha, Commander Buckley, Inspectors Melton and Krawczyk, as well as Commanders Freudenstein, Beresford and McCarthy. The police prosecutor was involved in the hearing of the assault claim against the landlord and the other police officers were involved, in varying roles, in the internal police investigation of Senior Constable Kennedy. The statement of claim also brought a claim of misconduct directly against Mr Cowdery, the Director of Public Prosecutions, and another police office, Mr Searson, whose involvement was to provide documents under the Freedom of Information Act 1989 (NSW) against various lawyers for the defendant who had acted either in the original proceedings or the Court of Appeal proceedings. The amended statement of claim also raised allegations of misconduct against Court of Appeal Registrars Schell and Rizynyczok.
6. On 24 August 2010, the Court of Appeal handed down judgment in Wang v State of New South Wales [2010] NSWCA 209. The Court of Appeal held that R S Hulme J was entitled to find that the pleading failed to identify a reasonable cause of action in negligence or for breach of statutory duty. However, the Court of Appeal held that it was not appropriate to treat the pleading as if it was limited to such claims and that it may have included a claim for an intentional tort. As a result, the Court of Appeal gave the plaintiff leave to re-plead, limited to the conduct of Senior Constable Kennedy. It specifically excluded the making of any claims by Mr Liu or the plaintiff in relation to the other named police officers and the Director of Public Prosecutions, or in respect of the present proceedings, meaning those raised in relation to the various lawyers who had acted for the defendant and the Court of Appeal Registrars.

The second defendant's notice of motion

1. By notice of motion filed 6 September 2019 in these current proceedings, the second defendant seeks firstly, an order pursuant to UCPR 13.4 that the claim made against him be dismissed; secondly, in the alternative, pursuant to UCPR 14.28, that certain paragraphs of the plaintiff's statement of claim filed 23 July 2019 be struck out to the extent it concerns the second defendant; and thirdly, in the alternative, an order that these proceedings be stayed unless the plaintiff's tutor has obtained an order pursuant to UCPR 7.14(2) that he may carry on the proceedings without a solicitor. The first defendant relies on the second defendant's notice of motion in that it seeks a stay of proceedings as outlined above.
2. I will deal firstly with the second defendant's notice of motion; secondly, the plaintiff's three notices of motion seeking summary judgment and other orders; thirdly, the first defendant's extension of time to file a notice of appearance; and finally, whether a stay of proceedings should be granted in relation to the first defendant.
3. UCPR 7.14 reads: "7.14 Proceedings to be commenced or carried on by tutor (1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor. (2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor."
4. The second defendant is a barrister who acted for the first defendant up until this current statement of claim, joining him as second defendant, was served upon him.

The pleading against the second defendant in the statement of claim

1. The pleading against the second defendant is at [7] to [12] and [19]. These paragraphs plead: "7 On 14 Oct 2009, the hearing day of the Court of Appeal, the Leave to Appeal was granted. The second defendant raised a matter: the plaintiff needed legal assistance. His Honour Basten JA made a clear decision: the Court did not order the plaintiff to have lawyer. Whether or not the plaintiff has a lawyer or accepts the lawyer's advice was entirely up to the plaintiff. Evidence: E. 8 The Judgment of the Court of Appeal of 24 Aug 2010, the citation: 'As note above, there are elements of an intentional tort which appear to have been raised upon in the original claim but which by themselves would not be adequate to establish a legally available cause of action'. Evidence: F. 9 On 23 Dec 2010, the plaintiff filed the amended Statement of Claim and carried out the proceedings without a solicitor. 10 On 15 Mar 2011, the hearing day, the Court should have dealt with the Statement of Claim and the Notice of Motions, but the second defendant suddenly claimed that the plaintiff did not have a solicitor, quoting the UCPR- 2005 r 7.14(2). Evidence: G. 11 The matter which the second defendant raised has been twice dealt with at the Court of Appeal and the Decision already made. The second defendant intentionally misled the proceedings. His behaviour intentionally violated the plaintiff's litigation right. Evidence: E, H. 12 On 23 June 2011, the hearing day, based on the request of the second defendant, the Order was made by the judge of the Court below was clearly against the Decision of the Court of Appeal 14 Oct 2009. The plaintiff was deprived of their litigation right. Evidence: I. … 19 From 15 Mar 2010, the intentional torts committed by the second defendant and the formal Crown Solicitor I V Knight have already cause Legal costs of the plaintiff, Based on UCPR - 2005 r 7.14(1), the Crown Proceedings Act - 1998 s 5(1), the claim should be made for Legal costs loss: a. Legal costs be paid by the second defendant: NSWSC822 and NSWSC321 ($30,000), NSWSC386 ($20,000), plus the plaintiff's Legal costs. b. Legal costs be paid by the first defendants: Case No: 20604/08 ($8,000), NSWCA209, plus the plaintiff's costs. c. Legal costs be paid by the defendants: NSWSC909 and NSWCA371, plus the plaintiff's costs."
2. In summary, the plaintiff pleads that the second defendant "intentionally misled the proceedings" and "this is an intentional tort". She seeks the costs of proceedings "NSWSC 822", "NSWCA 321" and "NSWSC 386" be paid by the second defendant and the legal costs of proceedings "NSWSC 909" and "NSWCA 371" and the plaintiff's costs be paid by both defendants.
3. A passage from the transcript of the hearing before Schmidt J on 15 March 2011 may be what the plaintiff considers to give rise to her cause to action against the second defendant.
4. On 15 March 2011, counsel for the first defendant (now the second defendant) submitted the following (T 91.14-37): "HODGSON: One of the submissions we make ultimately is based upon two matters. The first is the rules provide in Part 7, rule 7.14 and subrule (2) unless the court otherwise orders the proceedings be carried on and commenced through a solicitor. That's not the case here. A solicitor who acted for Mr Liu and Mrs Wang in the District Court proceedings has signed a certificate but there is no solicitor on the record and the proceedings were commenced by statement of claim which discloses no solicitor. The second submission is this. These proceedings have been commenced on a completely misconceived basis and contrary to the orders made by the Court of Appeal and indeed the recommendation of the Court of Appeal that Mrs Wang obtain some legal assistance to try and formulate a claim within the confines of what the Court of Appeal held was arguable. It's apparent that that's not going to happen with respect when Mr Liu remains as the tutor of Mrs Wang and doesn't have the assistance of a solicitor or a barrister and it's with respect not in Mrs Wang's interests for the proceedings to be continued on this basis which the defendant will submit is causing her to be burdened again and again, will cause her to be burdened again and again with costs orders and the proceedings will go nowhere because she is not heeding what the Court of Appeal has said ought to be done in terms of the confines of the case and also the need to get some legal assistance."
5. On 23 June 2011, Schmidt J made an order that Mr Liu's application that he be allowed to commence and carry on proceedings as a tutor for the plaintiff, without a solicitor, be refused (order 3). In other words, in order to make that order, her Honour was satisfied that the second defendant's first submission was correct.

Summary judgment

1. UCPR 13.1 reads: "13.1 Summary judgment (1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief: (a) there is evidence of the facts on which the claim or part of the claim is based, and (b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed, the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires. (2) Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed. (3) In this rule, a reference to damages includes a reference to the value of goods."
2. UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court.
3. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ stated at 129: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense.'"
4. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 ("Spencer"). Although in Spencer the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), the following principles are of general application: 1. On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23] per French CJ and Gummow J). 2. The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25] per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54] per Hayne, Crennan, Kiefel and Bell JJ). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success. 3. Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55] per Hayne, Crennan, Kiefel and Bell JJ; see also French CJ and Gummow J at [24]).

The second defendant's submissions

1. In the consideration which follows, I largely adopt and reproduce the submissions made by counsel for the second defendant, and then make my own decision.
2. The plaintiff is complaining about the second defendant's actions in Court on 15 March 2011, when he was acting as a barrister for the first defendant (S/C [10] and [11]). The second defendant submitted that he did not owe any duty to the plaintiff on that occasion or otherwise. The second defendant's paramount duty was to the Court, and then to his own client. The general rule is that a barrister or solicitor owes no duty in law to his client's opponent: see David v David [2009] NSWCA 8 at [92].
3. There can be an exception to this rule, for example when a lawyer gives an undertaking to the other side which is breached: see Al-Kandari v JR Brown & Co [1988] QB 665. However, the second defendant submitted that no such undertaking has occurred in this case.
4. It may also be suggested that a misrepresentation may be an exception to the general rule (Stephen Walmsley, Alister Abadee, Ben Zipser and Greg Sirtes, Professional Liability in Australia (Thomson Reuters Australia, 2nd ed, 2015) [4.220]). However, the second defendant submitted that this exception also has no application in this case, as the second defendant's conduct in raising UCPR 7.14(2) was appropriate and necessary in the context of Basten JA's comments to the plaintiff.
5. In relation to a duty to raise the particular passage which the plaintiff and her tutor characterise as the "decision", the second defendant submitted that the plaintiff and her tutor were well aware of the passage of Basten JA, and referred to it themselves both before Schmidt J and Harrison J. Schmidt J referred to it in her judgment at [29], but clearly did not see it as determinative. Harrison J referred to it in the transcript of argument but expressed the view that it was not persuasive, as it related to the appeal before the Court of Appeal.
6. In these circumstances, both at a theoretical and contextual level, the second defendant submitted that it had no duty to raise the point to the plaintiff.
7. The second defendant has submitted that the plaintiff's pleadings against him disclose no reasonable cause of action firstly, because of advocate's immunity; secondly, because they constitute an abuse of process and a collateral attack; thirdly, because they do not make out the intentional tort claim; and fourthly, because they are statute barred. I shall deal with these arguments in order.

(1) Advocate's immunity

1. The fundamental problem for the plaintiff is that at the hearing before Schmidt J, the second defendant owed no duty to Ms Wang, and that even if he did, he is protected by advocate's immunity. Advocate's immunity was reconsidered by the High Court in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; (2016) 331 ALR 1 ("Attwells"), where the majority stated at [35]: "[35] Their Honours explained [D'Orta-Ekenaike at (2005) 223 CLR 1 at 27 [70]] that, where a final order has been made resolving litigation, a claim that 'but for the advocate's conduct, there would have been a different result' is objectionable as a matter of public policy. That is because the consequences of the decision about which the claimant wishes to complain are 'consequences flowing from…a lawful result…lawfully reached.' The advocate's immunity is, therefore, justified as an aspect of the protection of the public interest in the finality and certainty of judicial decisions by precluding a contention that the decisions were not reached lawfully."
2. Further, the majority in Attwells stated at [37] and [52]: "[35] …[T]he scope of the immunity for which D'Orta and Giannarelli stand is confined to conduct of the advocate which contributes to a judicial determination. … [52]…The advocate's immunity is grounded in the necessity of ensuring that the certainty and finality of judicial decisions, values at the heart of the rule of law, are not undermined by subsequent collateral attack."
3. While it is accepted that advocates immunity is usually invoked in respect of claims of negligence between a client and their own advocate, the principal must extend to claims in respect of a party against an opposing advocate, as noted in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; (2005) 214 ALR 92 ("D'Orta") at [26]: "[26] …[T]he duty to the court is paramount. But more than that, the question of conflicting duties assumes that the only kind of case to be considered is one framed as a claim in negligence. That is not so. The question is whether there is an immunity from suit, not whether an advocate owes the client a duty of care."
4. It is also noted that the immunity extends to the other participants in the judicial process, including both judicial officers and witnesses: see D'Orta at [38]-[42]. It would be incongruous if the immunity applied to judges, witnesses, and a party's own barrister, but not the opposing barrister.
5. In Sgargetta v Hayes [2016] VSC 150, Macaulay J state at [51]: "[51] In D'Orta-Ekenaike the High Court made it clear that the advocates' immunity to suit is not confined to claims made only in negligence. The immunity does not exist due to an absence of a duty of care owed to the client by the advocate but, rather, because of public policy considerations derived from the judicial process being an aspect of government and from the need for finality in judicial decisions."
6. The second defendant submitted that he must be protected because, in the language of the High Court, it is conduct by the advocate (suggesting that the tutor needed a lawyer) which "contributes to a judicial determination", that is, the decisions of Schmidt J, Garling J, Harrison J and the two judgments of the Court of Appeal including their costs orders. It is necessary in this case to ensure the "certainty and finality of (those) judicial decisions," and that they "are not undermined by subsequent collateral attack."
7. The unimpeachability of such decisions extends to costs orders, to which the High Court specifically referred in D'Orta at [69]-[70]. In any event, the second defendant's submissions which the plaintiff criticises were accepted by Schmidt J as correct.

(2) Abuse of process/collateral attack

1. The damages sought are related to costs orders against the plaintiff, largely because she or Mr Liu opposed the requirement that a solicitor act for them, but also due to inadequacies in their pleadings. Underlying those costs orders were the primary and appellate decisions that a solicitor was required.
2. In Carson v Turner [2019] VSC 427, the Court noted at [80] that re-litigating issues which have already been decided in proceedings is a recognised category of abuse of process. That category may apply even if neither res judicata, issue estoppel nor Anshun estoppel arises. The second defendant also referred to Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198; [2001] NSWCA 142, where a plaintiff's attempt to re-litigate issues that were either decided or barred in earlier proceedings were found to be an abuse of process.
3. In Walton v Gardiner (1993) 177 CLR 378; (1993) 112 ALR 289 ("Gardiner") at 298, Mason CJ, Deane and Dawson JJ provide as an example of an abuse of process a case where, even though the circumstances do not give rise to an estoppel, the plaintiff seeks to litigate an issue which has already been disposed of by earlier proceedings, and are therefore unjustifiably vexatious and oppressive.
4. In determining whether re-litigation of a previously decided issue will amount to an abuse of process, the court will have regard to several factors. In State Bank of NSW v Stenhouse [1997] Aust Torts Reports 81-423, Giles CJ summarised these factors as follows: 1. the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue; 2. the opportunity available and taken to fully litigate the issue; 3. the terms and finality of the finding as to the issue; 4. the identity between the relevant issues in the two proceedings; 5. any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; 6. the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and 7. an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
5. See also Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 414 per Hunt CJ; Rippon v Chilcotin [2001] 53 NSWLR 198; [2001] NSWCA 142.
6. The second defendant submitted that to decide the questions raised in the plaintiff's statement of claim would involve re-litigating the two decisions of Schmidt J in 2011, as well as those of Harrison J and the Court of Appeal in 2014, all of which concerned whether it was necessary for Mr Liu, as tutor, to have a solicitor acting for her. The costs which the plaintiff was ordered to pay from those decisions flowed in the ordinary course as a result of those decisions, and it is those costs she seeks to recover in these proceedings.
7. The second defendant submitted that it is clear from the terms of paras [12], [18] and [19] of the statement of claim that it seeks to re-litigate these issues. Paragraph [12] claims that the judgment of Schmidt J dated 23 June 2011 "was made by the Judge of the Court which was clearly against the decision of the Court of Appeal 14 October 2009". Paragraph [18] claims that the judgment of Harrison J dated 8 July 2014 "was against the decision of the Court of Appeal 14 October 2009". Finally, para [19] contends that the intentional torts of the second defendant "have already caused legal costs of the plaintiff" being the costs ordered in the various judgments.
8. The question of whether the plaintiff and her tutor required a solicitor is the main issue raised by the plaintiff in her statement of claim, and was central to the 2011 and 2014 decisions. The second defendant submitted that the decisions in the various judgments were appropriate, including the costs judgments.
9. It should be noted that Mr Liu raised the very argument he is trying to ventilate now as the basis for the first claim, which was rejected by Harrison J. The same position exists in relation to the judgment of Schmidt J. Her Honour referred to the "decision" at [29] of her judgment, but clearly did not find it determinative.
10. The second defendant submitted that it would be an abuse of process to re-litigate this argument when it has already been considered (and dispensed with) by Schmidt J and Harrison J
11. In these current proceedings, this pleading has again been made. The portion of the transcript quoted earlier in this judgment, in which the second defendant raised this pleading and made a submission to Schmidt J, has been deployed to allege that the second defendant, the barrister who made the submission, has "intentionally misled the proceedings". This is an attempt to re-litigate an issue that already has been decided twice, but this time against a new defendant. In my view, this constitutes an issue estoppel and is an abuse of process.

(3) Intentional tort claim not made out

1. The plaintiff alleges an "intentional tort" against the second defendant based on the "decision of the Court of Appeal of 14 October 2009", UCPR 7.14 (1) and s 5(1) of the Crown Proceedings Act 1988 (Cth) (S/C [1]).
2. The "decision" dated 14 October 2009 to which the plaintiff refers is that of Basten JA, in which she understood him to state that she did not need a lawyer to represent her, and that she could appear by her tutor. It is her case that the second defendant on 15 March 2011 "intentionally misled the proceedings" before Schmidt J by claiming that the plaintiff (via her tutor) did require a lawyer (S/C [10] and [11]). The plaintiff appears to allege that for this reason, the judgments of Schmidt J and Harrison J are wrong. She seeks the legal costs she was ordered to pay in the various judgments referred to in the S/C at [19].
3. The plaintiff, apart from the alleged 2009 "decision", refers to UCPR 7.14(1) and s 5(1) of the Crown Proceedings Act. There is no factual or legal basis on which that rule and/or section can underpin the intentional tort claim against the second defendant.
4. UCPR 7.14(1) provides that a person under legal incapacity may not commence or carry on proceedings except by his or her tutor. Rule 7.14(1) is to be read with subsection (2), which 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". Section 5(1) of the Crown Proceedings Act concerns the manner in which those who wish to claim against the Crown can proceed, i.e. against the "State of New South Wales".
5. As such, it appears that the only basis for the plaintiff's intentional tort claim is the 2009 "decision" of Basten JA. The only intentional tort which appears to fit the matters alleged is a claim in deceit.
6. In Magill v Magill (2006) 226 CLR 551; (2006) 231 ALR 277, Gummow, Kirby and Crennan JJ, discussed the tort of deceit at [114] as follows: "[114] The modern tort of deceit will be established where a plaintiff can show five elements: first, that the defendant made a false representation; secondly, that the defendant made the representation with the knowledge that it was false, or that the defendant was reckless or careless as to whether the representation was false or not; thirdly, that the defendant made the representation with the intention that it be relied upon by the plaintiff; fourthly, that the plaintiff acted in reliance on the false representation; and fifthly, that the plaintiff suffered damage which was caused by reliance on the false representation. Generally, the elements of the tort have been found to exist in cases which concern pecuniary loss flowing from a false inducement and the need to satisfy each element has always been strictly enforced, because fraud is such a serious allegation."
7. The second defendant submitted that the plaintiff's claim fails in respect of each of these five elements, principally because the plaintiff fails at the first hurdle. The second defendant did not make a false representation. He invited Schmidt J to consider an existing rule in the UCPR, and Basten JA did not make a decision in respect of UCPR 7.14. Nor did Basten JA's "decision", as the plaintiff understood it, extend beyond the then appeal in those proceedings.
8. Further, the second defendant noted that the plaintiff and her tutor were well aware of the "decision", as Mr Liu himself raised it before Schmidt J and Harrison J. Fundamentally, even if the statement had been false, which it was not, the plaintiff and Mr Liu knew the truth and were not deceived.
9. As previously stated, the submissions made by the second defendant before Schmidt J were accepted as correct by her Honour. Therefore, the second defendant did not know the representation was false, nor did he make the representation recklessly or carelessly. For these reasons, the second defendant submitted that the pleading in the statement of claim is hopeless.

(4) Limitation of actions

1. The plaintiff claims that the second defendant committed an intentional tort. The limitations period for torts is generally is six years: see s 14 of the Limitations Act 1969 (NSW). There is no separate limitation period for intentional torts, although to the extent it is alleged that the limitation period does not begin to run in a deceit claim until falsity is known or should have been known, under s 55 (1)(a) of the Limitation Act, there are two answers. The plaintiff and her tutor allege that the falsity (which the second defendant denies) occurred on 15 March 2011. This is the date at which the plaintiff and her tutor allege that there was a misinterpretation of a "decision" made by Basten JA on 14 October 2009. As the decision of Schmidt J at [29] makes clear, Mr Liu himself raised the "decision" point in his submissions. The second defendant has submitted that as such, the time of reasonable discovery is 15 March 2011.
2. The statement of claim was filed on 23 July 2019, meaning the limitations period for claims in respect of which that statement of claim applies is 23 July 2013. As such, the second defendant submitted that the plaintiff is not entitled to bring claims in respect of the following judgments: 1. those of Schmidt J in 2011: [2011] NSWSC 882 and [2011] NSWSC 386; 2. that of the Court of Appeal in 2011 on appeal from Schmidt J: [2011] NSWCA 321; and 3. that of Garling J on 19 April 2013: [2013] NSWSC 386.
3. The limitation period is not a basis on which this Court can summarily dismiss the claims in respect of the costs orders of Harrison J in [2014] NSWSC 909 and of the Court of Appeal in 2014 on appeal from Harrison J, [2014] NSWCA 321, which fell within the six year period. However, the second defendant submitted that the other grounds for summary dismissal apply to the 2014 judgments.
4. In the exercise of my discretion, I do not make an order for summary judgment on the basis that these proceedings are statute barred.

Conclusion

1. The pleading in the current statement of claim discloses no reasonable cause of action because it is subject to advocate's immunity, is an abuse of process and fails to make out the tort of deceit. For these reasons, the statement of claim filed 23 July 2019 as against the second defendant is dismissed.

Discretionary considerations

1. The plaintiff, through her tutor, has filed numerous statements of claim. Each has disregarded the orders of the Court to confine the statement of claim to matters set out in the Court of Appeal judgment dated 24 October 2010, over nine years ago. Mr Liu gave an unhelpful excuse as to why there was no appearance for the hearing of the notices of motion, even though the plaintiff had filed two notices of motion seeking an earlier date for hearing of her notice of motion dated 21 August 2019. The costs so far to the defendants have been substantial. For these reasons, in the exercise of my discretion, I refuse to grant the plaintiff a further opportunity to replead the statement of claim against the second defendant.

The plaintiff's three notices of motion seeking summary judgment

1. Earlier in this judgment, I have briefly outlined the plaintiff's prior proceedings. As the proceedings have been dismissed as against the second defendant, the plaintiff is not entitled to summary judgment in respect of the claim against him. The plaintiff's tutor has not complied with the orders of Schmidt J and Harrison J. Two of the plaintiff's notices of motion included claims that the registrar made orders that are "illegal", "irregular" and "unfair" to the plaintiff. The plaintiff maintains the position that the Court of Appeal gave the tutor a right to carry on "this proceedings" without a solicitor, and does not need this order again. The plaintiff has not complied with the Court's orders and under these circumstances, is not entitled to summary judgment against the first defendant. The plaintiff's notices of motion dated 21 August 2019, 12 September 2019 and 23 September 2019 are hopeless, and are dismissed.

Notice of appearance filed out of time

1. At the hearing of these proceedings, counsel for the first defendant sought an extension of time to file a notice of appearance. The notice of appearance, filed on 22 August 2019, was two days out of time.
2. UCPR 1.12 reads: "1.12 Extension and abridgment of time (1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court. (2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires."
3. The first defendant's explanation for the delay was that it was uncertain as to whether or not the plaintiff was commencing the proceedings by means of her tutor and/or a solicitor. On 5 August 2019, the first defendant sent an email to the plaintiff requesting that she clarify the ambiguity (CB 315). The resolution of the issue resulted in the delay.
4. At the hearing, I was satisfied with the first defendant's explanation for delay. I made an order that the time for the filing of the first defendant's notice of appearance be extended up to 22 August 2019 pursuant to UCPR 1.12.

The first defendant's application for a stay of the proceedings without a solicitor

1. The first defendant requests that the proceedings be stayed unless and until the plaintiff's tutor appoints a solicitor, pursuant to UCPR 7.14.
2. Section 67 of the Civil Procedure Act 2005 (NSW) reads: "67 Stay of proceedings Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day."
3. The plaintiff's tutor does not currently have a solicitor acting in the proceedings. A solicitor acted briefly in early August 2019 and only for limited purposes, as explained in the annexures to the affidavit of Ms Gulesserian sworn 6 September 2019. The chronology is as follows: 1. Li Wang commenced these proceedings on 23 July 2019 in her own capacity, although nominating Mr Liu as a contact person; 2. On 1 August 2019, Mr Liu signed a consent to act as tutor form before a solicitor, Zhang Shijing, who was not on the record for the plaintiff at the time the proceedings commenced; 3. On 5 August 2019, Zhang Shijing Lawyers filed a notice of appointment of solicitor in the proceedings; 4. Also on 5 August 2019, Zhang Shijing Lawyers signed a notice of intention to file a notice of ceasing to act; 5. On 16 August 2019, the notice of intention to file a notice of ceasing to act was filed.
4. Insofar as of the need for a solicitor is concerned, reliance is placed on the reasoning in the judgments of Schmidt J in Wang v State of New South Wales [2011] NSWSC 609; Wang v State of New South Wales [2011] NSWSC 882; the judgment of Harrison J Wang v State of New South Wales [2014] NSWSC 909 and the judgment of the Court of Appeal in Wang v State of New South Wales [2014] NSWCA 321. This reasoning applies equally to the current proceedings. The first defendant has already incurred substantial costs in relation to these proceedings.
5. Unless the orders made by Schmidt J and Harrison J are complied with, I grant a stay of proceedings as against the first defendant until the plaintiff's tutor is represented by a lawyer.

Result

1. The proceedings as against the second defendant are dismissed. No leave is granted to replead the statement of claim as against the second defendant. A stay of proceedings is granted as against the first defendant unless and until the plaintiff's tutor complies with the orders of Schmidt J and Harrison J, that is, that the plaintiff's tutor is to be represented by a lawyer.

Costs

1. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first and second defendants' costs on an ordinary basis in relation to the plaintiff's three notices of motion filed 21 August 2019, 12 September 2019 and 23 September 2019, and the second defendant's notice of motion filed 6 September 2019.

The Court orders that: (1) The proceedings as against the second defendant are dismissed. (2) No leave is granted to replead the statement of claim as against the second defendant. (3) A stay of proceedings is granted as against the first defendant unless and until the plaintiff's tutor complies with the orders of Schmidt J and Harrison J that the tutor is to be represented by a lawyer. (4) The plaintiff is to pay the first and second defendants' costs on an ordinary basis in relation to the plaintiff's three notices of motion filed 21 August 2019, 12 September 2019 and 23 September 2019, and the second defendant's notice of motion filed 6 September 2019.

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: 21 November 2019