Wang v State of New South Wales & Ors

THE HISTORY OF PROCEEDINGS BROUGHT BY THE PLAINTIFF

1. The litigation between the plaintiff and the first defendant has a long and, it might be said tortured, history. I draw the following summary from the first defendant's written submissions.

The factual basis of the plaintiff's proceedings

1. The factual basis of the various proceedings brought by the plaintiff was set out by Rothman J in his earlier judgment in the following terms: [7] [3] The plaintiff alleges that, in 2004, she was physically and verbally assaulted in her home by her landlord. At the time she complained to Police, in particular, Senior Constable Kennedy, and the complaints were ignored. The plaintiff claims that she was the subject of insults, deceptions, and "a series of abusive treatment" by the Police, including the forging of records by the Senior Constable. … [A]s a consequence of the alleged treatment, the plaintiff claims that she has suffered a deterioration in her "medical condition".

The 2008 proceedings

1. In the first proceedings (the 2008 proceedings) the plaintiff's Statement of Claim was struck out and she was granted a further opportunity to formulate an adequate pleading, based on the commission of an intentional tort. The plaintiff was referred to the Registrar on that occasion for referral to a legal practitioner on the Pro Bono Panel to assist her in preparing her Statement of Claim. [8] The plaintiff was refused special leave to appeal against that decision. [9]

The 2010 proceedings

1. The plaintiff commenced further proceedings (the 2010 proceedings) without taking advantage of the referral to the Pro Bono Panel. In the 2010 proceedings [10] Schmidt J referred the plaintiff to the Pro Bono Panel for assistance with drafting her pleadings. Ultimately, Schmidt J dismissed the 2010 proceedings after the plaintiff indicated that she would no longer appear. [11]
2. Subsequent proceedings in the Court of Appeal arising from the determination of Schmidt J were unsuccessful. [12]

The 2012 proceedings

1. The plaintiff then commenced further proceedings (the 2012 proceedings). The Statement of Claim filed in those proceedings was dismissed by Garling J. [13]

The 2013 proceedings

1. The plaintiff then commenced further proceedings (the 2013 proceedings) which were stayed by an order of Harrison J. [14] An appeal against his Honour's decision was dismissed. [15]

The 2019 proceedings

1. The plaintiff then commenced further proceedings (the 2019 proceedings) which were stayed by an order of Harrison AsJ. [16] An appeal against that decision was dismissed. [17]

The 2020 proceedings

1. The plaintiff then commenced further proceedings (the 2020 proceedings) which were dismissed on 31 March 2022.

The present proceedings

1. The plaintiff commenced the present proceedings by a Statement of Claim dated 4 January 2022, the contents of which were summarised by Rothman J in the following terms: [18] [11] The Statement of Claim in the current proceedings, to which the motions now before the Court relate, was filed on 4 January 2022. The Statement of Claim seeks the relief of "assisted care; economic loss; treatment expenses; interest on damage; and, costs loss". Based on the pleadings, the plaintiff first initiated proceedings against the State of New South Wales in 2008 as vicariously liable for the actions of NSW police. The claim for vicarious liability is of course correct. The plaintiff particularised numerous "illegal" and "unjust" rulings and orders made by the Court and "illegal" filings by the defendant which ostensibly form the basis of the plaintiff's claim for relief. [12] The plaintiff claims that the Court should have made the initial determination in favour of the plaintiff in 2009, but that the proceedings were rendered futile by the first defendant's "illegal pleadings" which were accepted by the Court.

THE PRESENT NOTICES OF MOTION

1. In other circumstances it would be appropriate to consider and determine the first defendant's Notice of Motion in the first instance. In the event that I came to the conclusion that one or other of the orders sought in that motion were appropriate, it would follow that each of the plaintiff's motions would be dismissed.
2. However, in light of the history of the successive proceedings which have been brought by the plaintiff since 2008, it is appropriate that the issues raised by each of the plaintiff's motions be determined in the first instance. Once I have done that, I will then turn to the first defendant's motion.

The plaintiff's first motion

1. The plaintiff's first motion raises three issues, namely: 1. the asserted failure of the first defendant to file an appearance within 28 days, pursuant to r 6.10 of the Uniform Civil Procedure Rules 2005 (NSW) (the rules); 2. the asserted failure of the first defendant to file a defence within 28 days, on the basis of which the plaintiff seeks "summary judgment" purportedly pursuant rr 13.1 and 14.3 of the rules; and 3. an application for "an initial determination for the first defendant's vicarious liability" pursuant to the "Law Reform Act 1983, s 9C".
2. Rule 6.10 of the rules is in the following terms: Time for appearance (1) For the purposes of these rules, the time limited for a defendant to enter an appearance (whether by filing a notice of appearance in accordance with this Division or by filing a defence in accordance with Division 4) is-- (a) in the case of proceedings commenced by statement of claim-- (i) 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence, or (ii) if the defendant makes an unsuccessful application to have the statement of claim set aside, 7 days after the refusal of the application, whichever is the later, or (b) in the case of proceedings commenced by summons-- (i) on or before the return day stated in the summons, or (ii) if the defendant makes an unsuccessful application to have the summons set aside, 7 days after the refusal of the application, whichever is the later. (2) A reference in subrule (1)(b) to a summons extends, in relation to the Land and Environment Court, to an application that, in accordance with the rules of that Court, commences proceedings in Class 1, 2 or 3 of that Court's jurisdiction.
3. The evidence in the present case establishes that: 1. the plaintiff provided the Crown solicitor for New South Wales, via email, with an unsealed copy of the Statement of Claim on 4 January 2022 at 1:00pm; [19] 2. the first defendant received a filed and sealed copy of the Statement of Claim on 9 February 2022 from the Court Registry, not from the plaintiff; [20] 3. an appearance was filed in the proceedings by the first defendant on 9 February 2022 (i.e. the same day the filed and sealed copy of the Statement of Claim was received) and was served on the plaintiff by email on that same day. [21]
4. The plaintiff apparently asserts, for the purposes of r 6.10(1)(a) of the rules, that the period of 28 days commenced to run on and from 4 January 2022 (i.e. the day she provided an unsealed copy of the Statement of Claim to the Crown Solicitor), such that the filing of the appearance on 9 February 2022 was out of time. I am not persuaded that this is so.
5. Service of a document pursuant to r 10.1 of the rules assumes that the document which is served has been filed. On the evidence before me, the plaintiff has never effected service, on the first defendant, of a filed and sealed copy of the Statement of Claim. The evidence establishes that the first defendant's appearance was filed on the same day the Crown solicitor received a copy of the filed and sealed Statement of Claim from the Court Registry, i.e. 9 February 2022. In these circumstances, the complaint in paragraphs 1 and 2 of the plaintiff's first motion is without merit.
6. Even if that conclusion is wrong, the Court would have the power, pursuant to r 1.12 of the rules, to extend time for filing an appearance. If it were necessary to do so, I would make an order extending time. Such an order would not prejudice the plaintiff in any way.
7. An order for a separate determination of the first defendant's liability as sought in paragraph 3 of the plaintiff's first Motion would be inappropriate. To begin with, and for the reasons set out below when dealing with the first defendant's motion, the first defendant could not reasonably be expected to respond to the Statement of Claim in its current form. More generally, the circumstances of this case are such that the making of an order for separate determination would be antithetical to the object of facilitating the just, quick and cheap resolution of the real issues in the proceedings set out in s 56 of the Civil Procedure Act 2005 (NSW).
8. For all of these reasons, the plaintiff's first motion should be dismissed.

The plaintiff's second motion

1. Paragraphs 2 and 5 of the plaintiff's second motion raise the same issue regarding the filing of an appearance on behalf of the first defendant. I have already addressed that issue when dealing with the plaintiff's first Notice of Motion and thus do not need to consider it any further.
2. Beyond that, the plaintiff's second motion asserts that: 1. the first defendant's appearance was incomplete due to the absence of the signature of the Crown Solicitor, and is therefore an abuse of process; [22] and 2. the first defendant's motion was not filed within 14 days. [23]
3. Rule 6 .9 of the rules is in the following terms: How appearance entered (1) A defendant may enter an appearance in proceedings by filing a notice of appearance. (2) A defendant who files a defence in proceedings is taken to have entered an appearance in the proceedings.
4. The approved form for an appearance is Form 6A, which makes provision for the form to be signed on behalf of a party, or by that party's legal representative. In the present case, the first defendant's appearance was signed and filed by Mr Hudson, a solicitor employed in the office of Karen Smith, Crown Solicitor for NSW. Mr Hudson has the carriage of these proceedings on behalf of Ms Smith, the Crown Solicitor, subject to Ms Smith's control and direction. [24] It is evident that Mr Hudson signed the notice of appearance in his capacity as "a solicitor employed in the office of the said Karen Smith". [25]
5. Nothing requires Ms Smith, as the Crown Solicitor for NSW, to personally sign an appearance. That this is so is clear from r 4.4(1) which is in the following terms: 4.4 Signing documents (1) If, in any proceedings, a document is required to be signed by a party-- (a) in the case of a party who is represented by a solicitor, the document may not be signed by the party but must instead be signed-- (i) by the party's solicitor, or (ii) by a solicitor acting as agent for the party's solicitor, or (iii) by some other solicitor belonging to or employed by the same firm or organisation as the party's solicitor or party's solicitor's agent, and (b) in the case of a party who is not represented by a solicitor, the document may be signed by the party and may also be signed by any other person who is authorised by these rules to commence proceedings on the party's behalf. ……
6. Clearly, having regard to r 4.4(1)(a)(iii), the absence of Ms Smith's signature on the appearance does not give rise to any invalidity.
7. The plaintiff also asserts [26] that the fact that the first defendant has filed its motion outside a period of 14 days constitutes an abuse of process. It is not clear when the plaintiff suggests that such 14 day period commenced to run. The plaintiff apparently relies on r 14.5 and r 14.28 of the rules in support of her position. Rule 14.5 governs the filing of pleadings subsequent to a reply, and imposes a period of 14 days in which to do so. Rule 14.28 sets out circumstances in which the Court may strike out pleadings. Neither provision has any relevance whatsoever. The first defendant was not under any time constraint in terms of the filing of its motion, and there is no basis upon which to conclude that the motion is an abuse of process.
8. For all these reasons, the plaintiff's second motion should be dismissed.

The plaintiff's fourth motion

1. Paragraphs 2(a) and (b) of the plaintiff's fourth motion raise issues regarding the asserted failure of the first defendant to file an appearance within 28 days, and the asserted invalidity of the appearance by virtue of the absence of the signature of the Crown Solicitor. Both of those matters have already been addressed. Beyond that, the plaintiff's fourth motion seeks an order setting aside the judgment of Rothman J on the basis that it was delivered "illegally" and/or "irregularly", [27] and/or that it was "an abuse of process". [28] The plaintiff also specifically asserts that the judgment of Rothman J is irregular because of the absence of a certification. [29]
2. Rule 36.15 of the rules is in the following terms: General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
3. There is simply no evidence before me to support the exercise of the power conferred by r 36.15. There is nothing irregular, or illegal, about Rothman J's judgment.
4. The plaintiff's fourth motion should be dismissed.

The first defendant's motion

1. I have already set out the orders sought by the first defendant in its motion. [30] Before dealing with the merits of that motion, it is appropriate that I set out the relevant provisions of the rules.
2. Rule 13.4 of the rules is in the following terms: Frivolous and vexatious proceedings (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings-- (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
3. Rule 14.28 of the rules is in the following terms: Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading-- (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).
4. The principles governing the making of the orders sought by the first defendant are well settled and include the following.
5. First, a very clear case is required to justify the summary intervention of the Court to prevent a plaintiff from submitting a case for determination. It follows that if there is a real question to be tried, the proceedings should not be dismissed on the basis that they are frivolous, vexatious or an abuse of process. [31]
6. Secondly, there will be a real question to be tried unless the defendant can show that it is so certain that the relevant question(s) will be answered in the defendant's favour, and that it would amount to an abuse of process of the Court to allow the action to be heard and determined. [32]
7. Thirdly, the test to be applied is that the case of the plaintiff must be so clearly untenable that it cannot possibly succeed. [33] It follows that in an application of this nature, caution should be exercised, and the proceeding should not be summarily dismissed unless certainty of the outcome is demonstrated. [34]
8. With these principles in mind, I turn to consider the plaintiff's Statement of Claim. In doing so I make three preliminary observations.
9. First, and without intending any disrespect to the plaintiff, some of the paragraphs in the Statement of Claim are pleaded in terms which are entirely unintelligible, and which give little or no indication of the cause(s) of action which she seeks to bring.
10. Secondly, the Statement of Claim raises, in various instances, some of the same issues as have been raised by the plaintiff in one or other of her various Notices of Motion.
11. Thirdly, the pleadings do not comply, in various instances, with r 14.7 of the rules (which requires that facts be pleaded) or with r 14.8 (which requires that a pleading be as brief as the nature of the case will allow).
12. These shortcomings render it difficult for the first defendant, without more, to gain any real appreciation of the case that it has to meet, let alone file any meaningful defence.
13. The written submissions of the first defendant helpfully set out what appear to be the claims which the plaintiff seeks to bring. I will address each of those in turn.

Paragraphs 1 - 5

1. Paragraphs 1 to 5 purport to plead a cause of action "for the intentional tort committed by the police officer Kennedy" for which "the first defendant has vicarious liability". [35] However, the Statement of Claim is bereft of any proper pleading setting out any claim for an intentional tort. Paragraphs 1 to 5 plead no material facts which might support such a cause of action. In any event, and in circumstances where the relevant events are said to have occurred in 2004, any such cause of action is prima facie statute barred bearing in mind the provisions of s 14(1)(b) of the Limitation Act 1969 (NSW).

Paragraphs 6 - 32

1. Paragraphs 6 to 32 appear to attempt to articulate a claim for the costs of various proceedings which have been brought in this Court. Leaving aside that these paragraphs are in breach of rr 14.7 and 14.8 of the rules, they amount to little more than an attempt by the plaintiff to relitigate issues that have previously been determined, in circumstances where the plaintiff makes various allegations that the outcomes of those proceedings were "illegal".
2. Moreover, a number of the claims made in these paragraphs raise issues which have been addressed in one or other of the plaintiff's various motions. These include asserted issues arising from the fact that documents have not been personally signed by the Crown Solicitor, and the absence of certification of previous judgments.

Paragraphs 33 - 60

1. The claim which is sought to be agitated in these paragraphs is said [36] to be brought "pursuant to the High Court Rules 2004, r 41.02.1, proceedings on the Claim for the damage of the legal costs from the proceedings of the Court of Appeal of the Supreme Court of NSW." The pleadings include the following: [37] It is irregular and unjust that the Sydney Registry closed the proceedings without an order and intentionally deprived the plaintiff's right for seeking special leave to appeal from a judgment of 7 Aug 2020 to pervert the court of justice.
2. Nothing in these paragraphs pleads a cause of action against the first defendant. The fact (if it be the fact) that the Sydney Registry of the High Court "closed the proceedings" (whatever that may mean) at some point has nothing to do with the first defendant.

Paragraphs 61 - 97

1. It is not at all clear what the plaintiff seeks to articulate in these paragraphs. They do not disclose any reasonable cause of action, and make various unparticularised allegations of illegality and abuse of power.

Paragraphs 98 - 102

1. None of these paragraphs plead any elements of, or otherwise disclose, a cause of action available to the plaintiff against the first defendant. Moreover, they rely to some extent upon matters I have already determined in the context of the plaintiff's various motions, and again make unsubstantiated allegations as to illegality.

CONCLUSION

1. For the reasons set out, I am satisfied that the Statement of Claim filed by the plaintiff discloses no reasonable cause(s) of action and is an abuse of process.
2. The question arises as to the appropriate form of orders which should be made in the light of those conclusions. The filing of the present Statement of Claim represents the seventh attempt by the plaintiff to bring proceedings. In circumstances where I am satisfied that the Statement of Claim is an abuse of process which cannot be cured by amendment, the plaintiff should not be given leave to replead her case. Rather, the appropriate order is to dismiss the proceedings. However in the circumstances of the present case, additional orders should be made specifically dismissing the plaintiff's various motions so as to make it abundantly clear that there is nothing left outstanding.

ORDERS

1. I make the following orders: 1. The plaintiff's notice of motion filed on 11 February 2022 is dismissed. 2. The plaintiff's notice of motion filed on 28 February 2022 is dismissed. 3. The plaintiff's notice of motion filed on 17 May 2022 is dismissed. 4. Proceedings 2022/00002581 are dismissed. 5. The plaintiff is to pay the first defendant's costs of the proceedings the subject of order [4] above as agreed or assessed, such costs to include (but not be limited to) the first defendant's costs of: 1. the plaintiff's notice of motion filed on 11 February 2022; 2. the plaintiff's notice of motion filed on 28 February 2022; 3. the plaintiff's notice of motion filed on 17 May 2022; and 4. the first defendant's notice of motion filed on 23 February 2022.

Endnotes

1. CB 19.
2. CB 16.
3. CB 24.
4. Li Wang v State of NSW [2022] NSWSC 544.
5. T4.25 - T4.35.
6. Exhibit A.
7. Li Wang v State of NSW [2022] NSWSC 544 at [3].
8. Wang v State of New South Wales [2010] NSWCA 209.
9. Wang & Anor v State of New South Wales [2010] HCASL 273.
10. Wang v State of New South Wales [2011] NSWSC 609.
11. Wang v State of New South Wales [2011] NSWSC 882.
12. Wang & Liu v State of New South Wales [2011] NSWCA 321.
13. Wang v State of New South Wales [2013] NSWSC 386.
14. Wang v State of New South Wales [2014] NSWSC 909.
15. Wang v State of New South Wales [2014] NSWCA 373.
16. Wang v State of New South Wales (No. 3) [2019] NSWSC 1599.
17. Wang v State of New South Wales [2020] NSWCA 21.
18. Li Wang v State of NSW [2022] NSWSC 544 at [11] - [12].
19. CB 69 at [5].
20. CB 70 at [12] - [15].
21. CB 71 at [19] - [20].
22. CB 24 at [1] and [3].
23. CB 24 at [4].
24. CB 257 at [1]; CB 341.
25. CB 341.
26. CB 24 at [4].
27. At [5].
28. At [3].
29. At [4].
30. At [2] above.
31. Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1.
32. Dey at 90; Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at 54.
33. General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 120; [1964] HCA 69.
34. Spencer at 55; Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [30]; [50].
35. At [3].
36. At [33].
37. At [35]. 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: 16 December 2022