Zhang v State of New South Wales

James Zhao Ming Zhang - Plaintiff State of New South Wales - Defendant 2006/267005 Shao Qiang Liao - Plaintiff State of New South Wales - Defendant Representation: Counsel: R McKeand SC with J Clifton - Plaintiffs M Windsor SC with M Hutchings - Defendant Solicitors: Raymond Lee & Co - Plaintiffs IV Knight Crown Solicitor - Defendant File Number(s): 2005/269552; 2006/267005

Judgment 1HIS HONOUR: Each of the plaintiffs James Zhao Ming Zhang (Zhang) and Shao Qiang Liao (Liao) has brought action against the defendant State of New South Wales which is alleged to have acquired liability in two ways, one pursuant to the devolution of any liability of the Sydney Organising Committee for the Olympic Games (SOCOG) by the Olympic Coordination Authority Dissolution Act 2002 and the other pursuant to liability for tort committed by police officers in circumstances comprehended within the Law Reform (Vicarious Liability) Act 1983. 2It has been convenient for the two actions to "travel together" as there is considerable commonality of matters in dispute in the actions. There should also be recognition that there has been significant case management by Davies J although, relevant to a present issue, a fixed hearing allocation was vacated by Hall J. 3The claims by the plaintiffs are advanced in their respective pleading of a Third Further Amended Statement of Claim (TFASC) filed on 1 March 2012 by leave of Davies J. Defences to these were filed on 14 March 2012. 4In a broad description, the claims arise out of activity in connection with alleged arrangements for the sale of membership of an entity called The Olympic Club (TOC) to residents of the Peoples Republic of China (PRC) wishing to attend the games in Sydney in 2000. Each plaintiff was at one point arrested and held in custody until bailed on charges of dishonestly for himself or another obtaining a financial advantage pertinent to representations about such sales. Subsequently the charges were withdrawn by the Director of Public Prosecutions. It is not necessary at present to detail how the causes of action are pleaded. 5Zhang claims damages on four counts, false imprisonment, malicious prosecution by police, malicious prosecution by SOCOG and interference with contractual relations by SOCOG. 6Liao claims damages on six counts, false imprisonment, malicious prosecution by a police, malicious prosecution by SOCOG, interference with contractual relations by SOCOG (two counts) and interference with contractual relations by police. 7There are presently before the Court for determination four notices of motion, two in each case filed by the plaintiffs and two filed by the defendant. I shall deal first with these latter. Leaving aside prayers for costs, the orders sought in paragraphs 1 and 2 of the motion in the case of Liao are the same as those sought in paragraphs 2 and 3 in the case of Zhang. Paragraphs 1 and 4 are orders sought exclusively in the case of Zhang. That the plaintiff pay the defendant's costs thrown away by reason of the vacation of the hearing of the proceedings listed for six weeks (and to have commenced on 15 August 2011) (prayer 1 Liao; prayer 2 Zhang) 8The allocation of fixture followed orders on 5 November 2010 whereby service of evidence was to be completed by 25 April 2011. At a directions hearing on 17 September 2010 Davies J was informed by counsel (other than counsel now appearing for the plaintiffs) that the plaintiffs' case was complete other than the filing of a pleading in reply but that was "not to change the pleading and the statement of claim". 9However on 3 August 2011 an application was made to Hall J to vacate the hearing dates and for the plaintiffs to pay the defendant's costs occasioned by the adjournment. Inter alia, it was drawn to his Honour's attention that there had been received in the days immediately beforehand draft further amended statements of claim which were said to be significantly different from those which, up to then, had been current. Counsel, who are now appearing for the plaintiffs, announced that the final statements of claim had been prepared which were said to differ in detail but not in substance from earlier supplied drafts. The existence of these drafts, and their intended use, would contradict what had been told to Davies J in the previous September. 10Significantly, however, Hall J drew attention by way of example to an observation that allegations in the new document seemed to raise a cause of action which was different in substance and this led to a concession by senior counsel for the plaintiffs that there was no doubt that the defendant would need to investigate the way that allegations were now being put. 11In these circumstances it is hardly surprising that the hearing fixture was vacated. Senior counsel for the defendant asked that, if his Honour was not prepared to deal with an application of costs thrown away by the adjournment, a time for determination be set in the future. His Honour did deal with the application and ordered that costs be reserved, a matter which he considered "best dealt with by the trial judge who will have the benefit of dealing with all the aspects of the proceedings in both cases". 12As Hall J made explicit, the reservation of costs was a deliberate order. No appeal against that order was sought to be instituted. The motion now before the Court is not a "future time" for determination as contemplated by the terms of the submission to his Honour. In the absence of reference to a specific source of power, it is not clear how a judge can be asked to vacate an order made within jurisdiction by another judge and substitute a different order. No attempt was made to point to such a power. 13I was taken at some length to the history of the directions given to, and some of the correspondence between, the parties and to the extent that it was submitted that the vacation of the hearing fixture was not caused by any default of the defendant, I would be persuaded that that would appear to have been the case. Such innocence may be a compelling factor in the ultimate decision as to where the liability for costs should fall but I am unpersuaded that I should make any order different from that made by Hall J and I would decline to make this order. That the plaintiff pay the defendant's costs thrown away by reason of the amendments to the plaintiffs' further amended statement of claim (prayer 2 Liao; prayer 3 Zhang) 14With appropriate candour, senior counsel for the plaintiffs acknowledged that the usual order would be that costs thrown away by reason of amendment would be given to the defendant unless there was some fault by that party. No such fault was suggested to exist. 15The basis of resistance to such an order was the proposition that, if the plaintiffs were to succeed in obtaining strike out of parts of pleaded defence and the admissions (or presumably some of them) sought to be compelled in the further motions now before the Court then the case would be simplified or, perhaps more accurately, the quantity of evidence would be reduced. This would no doubt be a pleasing, if fortuitous, result but would seem somewhat remote from the justice of indemnifying the defendant for the costs to which it had been put as a consequence of the plaintiffs' default in formulating the claims which they desire to make. 16I would make this order. That in accordance with the operation of ss 56, 61 and 67 of the Civil Procedure Act 2005 the plaintiffs claims for damages in respect of the Ping Ba Hotel be stayed or dismissed (prayer 1 Zhang) 17The focus is upon but one aspect of multiple claimed heads of damage. The defendant's written submission contends that the claim should be stayed but is silent about whether what is sought is permanent or conditional upon producing allegedly lost financial records. 18Paragraph 22(iv) of the TFASC particularises as damage: "Losses relating to the inability to operate a hotel in Ping Ba, Guizhou, China with which the plaintiff had a contract with the Chinese government". 19There seems to be some association between the Ping Ba Hotel and an entity called the Waterfalls Relaxation Club as references are made in the affidavit of Chun Pan Lau (Victor) of 21 June 2011 to financial documents including profit and loss statements, cash books, receipts and invoices, wages details for staff and taking(s) summaries for the "hotel/club". 20A claim like this was advanced in earlier pleading and notices to produce in respect of documents pertinent to the operations of the hotel/club were served by the defendant in July 2009 and May 2011. It is common ground that these notices have not (in respect of these aspects) been complied with. 21I should mention that, in an exchange of written submissions the plaintiff referred to the limited authority in Australia dealing with damages claims for "unlawful interference with contractual relations" and the response of the defendant was to state that, as it appears that the claim for this damage is part of a claim for unlawful interference with a contract, it is difficult to comprehend because the plaintiff does not "plead such a claim". I have already observed the fourth count in Zhang's claim of interference with contractual relations by SOCOG and I infer that it is to this which the plaintiff intends to refer. 22The contractual relationship in which the plaintiff was involved was an alleged sub-agency agreement between himself and one Peter Zhu who had an agency agreement to sell Olympic club memberships. I do not overlook that the plaintiff also alleged that he was maliciously prosecuted by SOCOG. The defendant contends, given particulars supplied which asserted that the loss of the hotel was a consequence of (Chinese) government action when the plaintiff was constrained by bail not to attend to hotel activity, that the bail conditions were not imposed by SOCOG nor were they unlawful. 23The contradictions in the written material were not elaborated in the oral submissions and I do not regard myself as in possession of sufficient detail to rule on the defendant's contention and I would hesitate so to do. As I have reached a conclusion otherwise it will not be necessary. 24The defendant's claim for relief is founded upon a series of happenings and of non-happenings. On a Tuesday prior to a directions hearing before Davies J on Wednesday 15 June 2011 there had been a joint conclave of experts in relation to the plaintiff's claims for economic loss. I was informed that the participants were a Mr Lonergan an accountant retained to advise the defendant, a person described as a tax expert on the laws of the PRC and Mr Bradshaw, an accountant retained to advise the plaintiff. I do not know what documents might have been available for the conclave to examine and Davies J was told (on 15 June) by the plaintiff's former counsel that the documents of which production had been required were not in his client's possession, custody or control. He informed his Honour that the person who was in charge of the documents was Victor (Chun Pan) Lau who had been "found" in HongKong after he had been "tracked down" by the plaintiff. This information was quite extraordinary as it appears from the affidavit of Chun Pan Lau abovementioned that the plaintiff is his uncle. I am aware that in some Asian cultures "uncle" may be a courtesy title, but when the apparent relationship was pointed out in the context of the claims of inability to find this man, senior counsel for the plaintiffs merely said that he was unable to comment. 25Two significant things happened after the directions hearing before Davies J. Chun Pan Lau affirmed his affidavit on 21 June 2011. He revealed that between 22 and 25 July 2008, Mr Bradshaw had been at the Ping Ba Hotel/Club and he had been asked to show the solicitor (Mr Lee) and their accountant (Mr Bradshaw) how the hotel and club operate and to look at the documents. The documents were in Chinese and an interpreter was engaged to assist in translation. Chun Pan Lau was instructed to keep the documents in anticipation of inspection by representatives of the defendant. To that end, he put them in boxes. 26To the extent that there was a mild suggestion that the hotel and the club were separate entities and the documents lost related to the club but not to the hotel, the affidavit of the plaintiff's solicitor of 21 June 2011 deposes that he travelled with Mr Bradshaw to review the records of the hotel and that these were what were boxed by Chun Pan Lau. 27Next, in mid-2010 Chun Pan Lau was asked to find the boxes but he could not. He deposed that he was told by staff that, as the documents had been sitting there for about two years, they were believed to be rubbish and had been sold as scrap paper. 28The second matter was the production of a report by Mr Bradshaw to the plaintiff's solicitor dated 27 June 2011 presumably based upon his inspection of records in China in 2008. The report is of two pages and annexed is a schedule of projected losses from 2000-2014 based, it would appear, on some figures and a table which may have been derived from records although I note references in the print to "estimates". The report offers a calculation of $A 1,469,282 as the nett present value of earnings which may have been earned by Zhang if he had been permitted to run the hotel for the duration of his original grant of rights. 29A further hearing took place before Davies J on 29 June 2011 and the existence of this new report by Mr Bradshaw was canvassed. His Honour noted that, although he had directed the report be served, he had not granted leave for it to be relied upon. 30The response of the plaintiff to this application by the defendant seemed to acknowledge the improbability, if not impossibility, of being able to rely upon the report. Reliance was expressed upon the well known inhibition on summary dismissal in accordance with the principles expounded by Bawick CJ in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125. In the present case, however, the defendant appeals to express statutory power vested in this Court in particular by s 61 of the Civil Procedure Act. 31On the assumption that evidence of calculated loss such as advanced in Mr Bradshaw's report would not be admitted, it was submitted that the plaintiff could recover damages which were "at large". In Rookes v Banard [1964] AC 1129, Lord Devlin observed that in many cases an award is not limited to pecuniary loss which can be proved. Defamation is an obvious example. What Lord Devlin had said was applied by Brooking J in the Victoria Supreme Court in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air pilots (12 February 1990) which decision was cited with approval by Gleeson CJ in Palmer-Bruyn & Parker Pty Ltd v Parsons (2008) CLR 388 although the Chief Justice was specifically dealing with notions of remoteness of damage. Reference was also made to the observation of the Court of Appeal in Paino v Paino [2008] NSWCA 276 where it was said that where a plaintiff has proved a substantial loss but the evidence does not enable precise quantification, the court should "do its best". That observation was consistent with many others which have been made to similar effect. 32Whilst I accept the force of the cited authorities as a matter of generality, the present issue is to be determined in the light of the known facts and circumstances and in accordance to a recognition that the statutory power has been vested in the court to be used if the circumstances are appropriate. 33Given the deposition of Chun Pan Lau, the unavailability of the documentation must be regarded as a responsibility of the plaintiff. To contend that he can recover damages "at large" if a substantial loss is established is one thing, but the apparent destruction of the documents prevents the defendant from any opportunity to investigate whether here was, in fact, any loss at all, let alone a substantial loss. It is conduct for which the plaintiff is responsible which removes from the defendant any practical ability to deal with this aspect of a claim for damages. In that circumstance the failure of the plaintiff to comply with directions to fulfil the requirement of production should be met by preventing him from advancing that claim. In coming to that conclusion I am conscious of the statutory overriding purpose to facilitate just, quick and cheap resolution of issues and it would be manifestly unjust in my opinion to require the defendant to remain vulnerable to an award of damages "at large" in respect of a claim where the plaintiff has removed from access the critical material which would enable the claim to be investigated or assessed. 34I will make an order of the nature sought in the first prayer of the notice of motion, to the extent that I will order a stay of the claim for these damages. It will be for the plaintiff to move the court if it is thought that he can show grounds for the stay to be lifted. I consider the appropriate order is stay until further order of the court. That the plaintiff be ordered to provide security for costs in respect of the defendant's present (and anticipated) costs of the proceedings (prayer 4 Zhang) 35The claim by the plaintiff was commenced on 6 December 2005. The defendant acknowledged that the question of security for costs was first raised with the plaintiff's solicitor on 29 June 2011. I would respectfully agree with the adoption by Barrett J in Tim Bar Pty Ltd v Narui Gold Coast Pty Ltd [2009] NSWSC 563 of what had been said in Morris v Hanley [2001] NSWCA 374 that a long and unexplained delay would usually be fatal to any costs application. 36The written submissions by the defendant recite that on 10 June 2011 the plaintiff's solicitor said in court that one of his clients (Zhang) was in China on a permanent basis. The implication was that this came as new information to the defendant and to explain the delay in bringing the application for security. However in the plaintiff's written submissions it was observed that the defendant's solicitor had (in a paragraph which I recognise was, in the event, not sought to be read by the defendant) deposed in an affidavit that prior to June 2011 she was unaware that the plaintiff resided in China on a permanent basis. This, it was asserted by the plaintiff, did not sit easily with another (unread) paragraph which acknowledged seeing an affidavit by a solicitor acting for the plaintiff stating in May 2011 that his client (Zhang) lived in China. 37After some interchange concerning an application to cross-examine the defendant's solicitor, it was stated by senior counsel that the defendant does not take issue with (the fact) that its solicitor knew in 2008 that Zhang resided in the PRC. Some coyness was exhibited about conceding that it was known to the defendant that Zhang "ordinarily" resided there and I gather that this was an attempt to avoid the expression in UCPR 42.1(a). Despite this, I do not construe the admission as meaning anything other than that Zhang was, at least at that time, ordinarily resident in the PRC. 38It is beyond argument that both parties have been put to very substantial expense in the conduct of the litigation to date and that its continuation is highly likely to involve a great deal more expenditure. Some figures which amply support that statement appear in the affidavit of the plaintiff's solicitor of 12 March 2012 and the portions which were read of the affidavit of the defendant's solicitor of 21 February 2012. 39Should the defendant obtain an order for cost against the plaintiff, although the defendant's written submissions state that the plaintiff apparently holds substantial assets in mainland China, the evidence in the report of Jin Saibo of the Commerce and Finance Law Offices, Beijing reveals considerable obstacles to enforcing a judgment (for costs) of this Court in the PRC. 40It was not suggested that the plaintiff's claim was other than bona fide, indeed it was accepted that I should proceed on the basis that it was: Fiduciary Ltd v Morningstar Research Pty Ltd (2004) 208 ALR 564. 41Attention was directed to statements concerning the plaintiff's impecuniosity and there was some attention paid to a claim that that situation was at least contributed to by the actions of those for whose liability the defendant is responsible. The present material does not enable an informed adjudication as to whether the plaintiff is impecunious in a general sense or is presently without substantial liquid funds or whether, whatever the situation be, there is any causal connection between his situation and the conduct of the defendant. 42As recently as the current hearing both parties have been represented by senior and junior counsel. I am aware that the same counsel represent Zhang, and Liao whose status as an ordinary resident of Australia has not been challenged. 43Given the level of expense predicted by the defendant's solicitor in her affidavit, any order for security would need to be of considerable size in order to reflect it. Nevertheless, in the absence of security, the parties have litigated with what appears to have been considerable intensity and an order for substantial security is likely, in my assessment, to pose a considerable risk of stifling the opportunity of the plaintiff of having his claims determined. I do not overlook that some delay would be attributable to the plaintiff's amendments from time to time but the reality is that this application is made nearly six years after initiation of proceedings during which there has been what I have described as intense litigation. The defendant ought to have contemplated in 2008 when it knew that the plaintiff resided in China whether it wanted security or not. It did nothing. 44In the circumstances I would decline to make the order sought. I add, as the matter was adverted to in the written submissions of the plaintiff, that I do not make any finding that it is unlikely that the defendant will obtain an order for costs at the end of the proceedings. In summary on these motions in the matter of Zhang I would make orders as sought in paragraphs 1 and 3 of the notice of motion but decline to make the orders sought in paragraphs 2 and 4 and in the matter of Liao, I would make an order as sought in paragraph 2 of the notice but decline to make an order as sought in paragraph 1. Plaintiffs' Notices of Motion 45I turn to the notices of motion by the plaintiffs. By amended notice of motion filed 22 March 2012 Zhang seeks orders that seven specified paragraphs of the defence to TFASC be struck out as abuses of process and that the defendant be ordered to make admissions in respect of some 32 particulars which appear within that pleading. Liao by amended notice of motion filed 21 March 2012 also seeks orders striking out nine specified paragraphs of the defence to TFASC and that admissions be directed in respect of some 40 particulars within the pleading in his case. 46In a large number of instances there is sufficient identity between what appears in the pleadings in respect of each case for a commonly applicable ruling be made. Counsel provided a schedule of "equivalent paragraphs" which can remain with the papers for reference, if necessary. Application to strike out defences 47I deal first with the strike out applications focused upon various paragraphs of the defences. 48It is established that there can be an abuse of process when the same question having been disposed of in one case, the litigant by changing the form of proceedings was permitted to set up the same case again: Reichel v Magrath (1889) 14 App Cas 665. Such a claim of abuse can be invoked by non-parties to the original case. The applicable principles were canvassed in Habib v Radio Sydney 2UE Pty Ltd [2009] NSWCA 231 and I do not repeat what can be read there nor recite the case references which appear therein. 49For present purposes, the allegations of abuse are founded upon assertions that issues have been determined by decision of Bergin J (As her Honour then was) titled Zhu v Sydney Organising Committee for the Olympic Games and Ors [2001] NSWSC 989, in the Court of Appeal as Sydney Organising Committee for the Olympic Games v Zhu [2002] NSWCA 380 and in the High Court of Australia as Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530. 50It should be observed that the case by Mr Zhu was commenced by summons and he sought declarations in respect of an agency agreement between himself and TOC Management Services Pty Ltd (TOCMS), the assumption of the obligations of the latter by SOCOG, interference by SOCOG with contractual relations between himself and TOCMS and associated prayers for relief. 51Neither Zhang nor Liao were, of course, involved in the Zhu litigation. There is no question of their seeking to set up a changed form of proceedings from proceedings in which they had earlier been unsuccessful. The boundaries within which they can be confined by findings in litigation to which they were not parties, and hence without opportunity to be heard are not distinct but there are some guideposts. 52There must be an identity, between the issue in the Zhu action and the actions by the plaintiffs. The issue must have been determined as a result of a need so to do as distinguished from comments on evidence, background observations and findings or assumptions which are limited in the sense of being for the purpose only of the case under consideration. Obviously, there must be certainly as to what issue is being determined and its terms should convey the intended finality of that determination. 53In submissions in reply it was put that, on both the strike out and compelled admission applications, the court should primarily consider whether or not the substance of the facts that the defendant has been asked to deny or admit is "in substance" the subject of a finding by Bergin J (or the High Court) in the Zhu proceedings. 54I do not accept this proposition. The consequence of making the orders sought by the plaintiffs is to debar the defendant from being heard at all in respect of matters said to have been determined in litigation in which it was not engaged. Self evidently such denial should only occur in the extreme circumstance that permitting relitigation would scandalise the administration of justice. It scarcely needs to be said that it is exceptional to deny any party the opportunity to be heard. Therefore, in my view, such a drastic step should only occur where there is a certainty that an exactitude of issue exists rather that a broad concept of substance in a comparison between what has been determined and what it is desired to litigate in the instant cases. 55As I shall later indicate when dealing with the application to compel admissions, the "broad brush" of asserting substance rather than identifying issues with precision is particularly inapt if the course that the plaintiffs seek to take were to be adopted. 56It is convenient to observe at this point that, although the Zhu claim could not have been made against the State of New South Wales, it is subsequent legislation which has required the plaintiffs to sue the State otherwise there does not seem to be any reason why their claims could not have been made against SOCOG or its associated corporate entities and I do not regard the necessitated change in the identity of the defendant as a relevant obstacle to the success or failure of the applications to strike out for abuse of process. 57I should also record that counsel for the plaintiffs laid stress upon the assertion that the State should be "a model litigant". Whatever obligations might be acquired by such status, it does not mean that such a litigant will be deprived from contesting issues which are properly open to it. Defence to paragraph 13 (Liao) paragraph 12 (Zhang) In this and the following similar applications, the recitations from the pleadings are derived from those in the case of Liao 58This response is to paragraph 13 of TFASC which reads: "13. Further, or in the alternative, the charging and prosecution of the Plaintiff was malicious and without reasonable and probable case and was caused by Moiya Ford, acting as servant and agent of SOCOG, a. providing YF Wang with false information knowing tha YF Wang would pass that information onto the police, and, b. providing the DS Nicholls with false information, all of which information was material to the decision of the police to charge and prosecute the plaintiff." 59The allegation relates to the claim of malicious prosecution by SOCOG. 60The defence reads: "In answer to paragraph 13 of the Third Further Amended Statement of Claim, the defendant denies that Moiya Ford was "acting as...agent of SOCOG." The defendant admits that Moiya Ford was an employee of SOCOG. The defendant denies the balance of the paragraph." 61Zhu had made no claim for malicious prosecution but it appears that the plaintiffs seek to strike out the denials insofar as they relate to paragraphs 13 (a) and (b). The written submissions by the defendant seem to assume that it is sought to strike out the whole of the paragraph of the defence. I recognise that Liao was arrested on 1 December 1999 and that Bergin J's finding related to information passed to Detective Sergeant Nicholls on 2 and 3 December 1999 subsequent to which Zhu was arrested and she did not consider whether Ford's conduct concerning the plaintiffs was malicious and without reasonable and probable cause. To the extent that these last allegations are denied, the issue remains undetermined and the pleading should stand. 62I shall not repeat these observations but the plaintiffs' submissions, particularly in reply, almost invariably involve seeking to cross reference different extracts from the Zhu judgments and the need to adopt this technique cogently demonstrates a likely absence of true certainty in proposing that there is identity between a fully litigated issue in Zhu and the present proceedings. 63The fact that Ford had passed false information to YF Wang and Nicholls that 25 TOC membership certificates were not genuine was discussed by Bergin J (pars [382], [385]-[387]). However, as I shall later detail, there can be a distinction between a certificate being false and a certificate displaying false information. The plaintiffs assert admission in a "rolled up" sense. 64The problem with the plaintiffs' application is that unless paragraphs 13(a) and (b) remain, the defendant would be precluded from contesting the allegations of malice and absence of reasonable and probable cause. This is apparently recognised in the plaintiffs' submissions where it is economically said that the defendant should admit the provision of false information. This is not, on this aspect, an application to enforce an admission and having regard to the defendant's entitlement to make the contest just described, I decline to strike out this paragraph of the defence. Defence to paragraph 17 (Liao) paragraph 16 (Zhang) 65This response is to paragraph 17 of TFASC which reads: "In about May 1999 Zhu entered an agreement with the plaintiff for the plaintiff to act as sub-agent of Zhu to sell memberships in the Olympic Club in Yunnan and Henan province in China for the benefit of receiving 10% of the price of each membership sold by the plaintiff." 66The allegation relates to the claim of interference with contractual relationships by SOCOG. In the case of Zhang, different provinces namely Guangdong and Guizhou were nominated. It appears that Liao was in fact found by Bergin J to have been appointed by Zhu and Zhang as a sub-agent in respect of Zhuhoi province (para 67) and not Yunnan and Henan. There is another distinction in that Zhang's claim refers to an agreement with Zhu "for reward" in contrast to Liao's claim that he was to receive 10 percent of the price of membership. 67The defence reads: "The defendant denies paragraph 17 of the Third Further Amended Statement of Claim." 68It suffices to deal with this claim to find, as I do, that the issues raised in the pleading have not been fully litigated in the prior case. Apart from the discrepancies abovementioned, no finding was made by Bergin J concerning the rate of reward claimed by Liao. The proposition that SOCOG and its operating corporate vehicles required Zhu to be personally responsible does not enable the plaintiffs to plead agreements with him which were in fact made with Zhu's company, Australia Chinese Sports Connections Pty Ltd (ACSC). 69I decline to strike out this paragraph of the defence. Defence to paragraph 18 (Liao) paragraph 17 (Zhang) 70This response is to paragraph 18 of TFASC which reads: "On 13 September 1999 SOCOG, TOC (as trustee of the Olympic Club Trust) and other parties entered a Deed of Release and Termination which operated to terminate the Olympic Club Trust and place control of the Trust in the hands of SOCOG, with effect from 20 September 1999." 71This also relates to the count of interference with contractual relations by SOCOG. 72The defence reads: "In answer to paragraph 18 of the Third Further Amended Statement of Claim the defendant denies the paragraph. In further answer, the defendant pleads that on 13 September 1999, a Deed of Release and Termination was executed between the company, SOCOG, the Australian Olympic Committee Inc and Synthesis Consulting Pty Ltd. The execution of the Deed of Release and Termination was necessitated by the company's parlous financial state. Upon execution, the Deed of Release and Termination terminated the company's role as the trustee (and manager) of the Olympic Club Trust. In further answer, on 13 September 1999, the company, SOCOG, the Australian Olympic Committee Inc and Synthesis Consulting Pty Ltd agreed to terminate the Olympic Club Trust, the Establishment Agreement and other related Agreements relating to the Olympic Club." 73This application is said to rely upon what was said in the judgment of the High Court of Australia at paragraph 25. The defendant is entitled to raise its denial given that the Court literally did not hold that the trust was placed in the hands of SOCOG but rather its expression related to the running of (the Olympic) Club. The defendant's pleading is not embarrassing as seeking to dispute any issue which has been determined in the Zhu judgments. 74I decline to strike out this paragraph of the defence. Defence to paragraph 19 (Liao) paragraph 18 (Zhang) 75This response is to paragraph 19 of TFASC which reads: "Entry into the Deed - a. prevented TOC from performing its obligations under the contract of agency with Zhu which SOCOG well knew, and, b. prevented further performance of the sub-agency agreement between Zhu and the plaintiff." 76This relates to the allegation of interference with contractual relations by SOCOG. 77The defence reads: "The defendant denies paragraph 19 of the Third Further Amended Statement of Claim." 78Manifestly the High Court accepted a specific finding by Bergin J that SOCOG was aware that entry into the Deed would cause TOC to breach the agency agreement with Zhu. It is but a different form of words to speak of prevention of performing obligations under it. I discern, in the circumstances, no significant distinction between being aware and well knowing something. 79The defendant complains that paragraphs 19 (a) and (b) are conjunctive and that there was no issue in focus in the Zhu action upon sub-agency agreements. That is true, but it would be an inevitability if the obligations to Zhu were prevented from performance that he could not perform any obligations he had to his sub-agents. 80The flat denial pleaded is in the circumstances embarrassing in that the issue has clearly been precisely determined when it was before the court in the Zhu action and this portion of the defence should be struck out. Defence to paragraph 20 (Liao) paragraph 19 (Zhang) 81This response is to paragraph 20 of TFASC which reads: "Further, on 5 November 1999 TOC and SOCOG wrongfully purported to terminate the contract of agency with Zhu." 82This continues to relate to the interference with contractual relations by SOCOG. 83The defence reads: "The defendant denies paragraph 20 of the Third Further Amended Statement of Claim." 84Although the various authorities dealing with attempts to re-litigate refer to questions or issues already determined, I do not understand them to qualify the requirement that material facts and not legal conclusions are required to be pleaded. It can be contemplated that if a legal issue has been determined, appeal to that line of authority may not be necessary although I recognise that the authorities inhibiting the scandal of re-litigation extend beyond persons or entities who were actual parties in the original proceedings. 85The plaintiffs plead a legal conclusion ("wrongfully") and to the extent that it is sought to draw it from passages in the judgments of Bergin J and the High Court, I note the references to concessions having been made which would be, in the absence of some other specification, understood to be made for the purpose of that trial and that trial only. 86I decline to strike out this paragraph of the defence. Defence to paragraph 21 (Liao) paragraph 19A (Zhang) 87This response is to paragraph 21 of TFASC which reads: "The purported termination amounted to a repudiation of the contract of agency which remained on foot until 22 December 1999 when the repudiation was accepted by Zhu and the contract was terminated." 88Again, this relates to the claim of interference with contractual relations by SOCOG. 89The defence reads: "The defendant denies paragraph 21 of the Third Further Amended Statement of Claim." 90In its written submissions the defendant (under the heading "Paragraph 21") contended that "having regard to the rolled up (and clearly incorrect) pleading in paragraph 20 (sic) of (TFASC), the defence is wholly sustainable". 91The basis for the parenthetical assertion was not elaborated. 92However, once again, there is said to be pleading inclusive of a legal conclusion apart from what appears to be a typographical error, the documentation and the assertions about it seem to suggest some confusion. For reasons already given, striking out a drastic step and I would decline to order it in the absence of clarity. 93I would not strike out this paragraph of the defence. Defence to paragraph 22 (Liao) paragraph 19B (Zhang) 94This is response to paragraph 22 of TFASC which reads: "The actions of SOCOG and TOC by entry into the Deed in the circumstances of the existence of the contract of agency and in purporting to terminate the contract of agency were unlawful and caused the termination of the contract of agency on 22 December 1999 and thereby prevented Zhu and the Plaintiff performing the agreement for sub-agency." 95This is the final application in respect of the claims by each plaintiff alleging interference with contractual relations by SOCOG. 96The defence reads: "The defendant denies paragraph 22 of the Third Further Amended Statement of Claim." 97There is once more a pleading of legal rather than factual material ("unlawful") but in any event the joinder of SOCOG and TOC leaves it unclear as to which the defendant is being asked to plead. The preclusion of SOCOG from arguing that the arrest of Zhu was not a separate and independent tort of interference with contract was expressly based upon the conduct of the trial (see High Court judgment para 42) and as such did not amount to a finding but rather an inhibition which was applicable in those proceedings for that reason. 98I would not strike out this paragraph of the defence. Defence to paragraph 25 (Liao) 99This is in response to paragraph 25 of TFASC which reads: "At the time of the arrest, charging and prosecution of the plaintiff by the police, the police had knowledge of a contract of agency between Peter Zhu and TOC Management Services Pty Limited and an agreement for sub-agency between Peter Zhu and the plaintiff." 100This claim relates to the fifth count by Liao alleging interference with contractual relations by police. 101The defence reads: "The defendant denies paragraph 25 of the Third Further Amended Statement of Claim." 102As the defendant points out, the plaintiff's pleading asserts institutional knowledge on the part of "police" whereas relevant knowledge of belief is that of an individual police officer. The vicarious liability of the State lies for the actions of such officers and not for the entity known as the police force. If the plaintiff, as he apparently does, makes allegations against a particular officer, the defect in pleading is not cured by offering particulars. 103There is no finding to which my attention has been directed of an agreement for sub-agency between Peter Zhu and Liao. 104The strike out application should be refused. Defence to paragraph 30 (Liao) 105This response is to paragraph 30 of TFASC which reads: "At the time that Moiya Ford, acting as servant and agent of SOCOG, provided YF Wang with false information knowing that it would be passed to police and provided the police with false information, all of which information was material to the decision of the police to charge and prosecute the plaintiff, Ford and SOCOG had knowledge of the contract of agency between Peter Zhu and TOC Management Services Pty Limited and the agreement for sub-agency between Peter Zhu and the plaintiff." 106This relates to the sixth count in the claim by Liao alleging interference with contractual relations by SOCOG. 107The defence reads: "The defendant denies paragraph 30 of the Third Amended Statement of Claim, and in further answer, pleads that the paragraph ought be properly particularised. The paragraph (in its present form) is emBarassing and ought be struck out." 108Once again there is an assertion of institutional knowledge on the part of "police". The position of Moiya Ford as an employee was earlier admitted (defence paragraph 13/12) but it is obvious that her agency is said to remain an issue. Again there is no evidence indicated of a sub-agency agreement between Peter Zhu and Liao. 109I would refuse the application to strike out the defence. 110I make some general observations about these applications. 111I note that in several instances the defendant's position is (among others) that it is being required to plead to a statement of law or legal effect rather than to material facts. Although I recognise that there may be available remedy for the defendant to apply to strike out such a pleading as embarrassing, it is my conclusion that in the circumstances of these cases and in the interest in bringing this litigation to a hearing, that striking out of defences in this application would be counter-productive. 112I deal shortly with some specific matters raised by the defendant in particular. Obviously the litigants are different from those in the Zhu proceedings but this is not an absolute answer to a Reichel style application and, equally obviously, the entitlements (if any) of these plaintiffs were not determined in the Zhu action. Whether these plaintiffs or either of them were privies of Zhu, I have not determined any aspect of these applications against the defendant on the basis that they were. 113To the extent that any discretionary power may be called upon, I note the content of the statement of Peter Zhu of 20 March 2011 which directly relates to the dealings between Zhu and Zhang and it foreshadows evidence which would not have been germane to the litigation between Zhu and the defendants whom he sued. A claim that what is in the recent statement is inconsistent with the contentions in support of his own case will, if he gives inconsistent testimony, no doubt be weighed in assessing his credibility. An assertion of inconsistency is not a basis for exclusion of evidence. 114The plaintiffs' submissions make bald statements that various issues have been "fully contested" but the method by which such statements can be shown to be correct or incorrect is left undefined. Application to compel admissions 115The final matters of application on the notices of motion by the plaintiffs are the numerous prayers for directions that the defendant make admissions. The power of the court to give such direction is not without doubt: s 71(1)(c) Civil Procedure Act. 116It is stated in the written submissions of the defendant that no Notice to Admit Facts or Authenticity of Documents has been served by the plaintiffs: See UCPR 17.3 and 4. Utilisation of the appropriate facility might well have had a beneficial effect of avoiding the somewhat prolix procedure of seeking to extract admissions about frequently multiple facts in particulars supplied with the pleading. I shall return to this aspect. The method adopted has led to objections by the defendant to many instances of a lack of precision. It is a fundamental requirement of obliging a party to make an admission that that party know precisely what is being sought. 117The defendant submitted that the course taken by the plaintiff is vexatious. No authority was pointed to in support of that statement but there is substance in the proposition to which I will also return. To a significant extent, I was invited to attend to the written submissions in order to avoid oral repetition. I do not criticise written submission procedure in principle but, if it is adopted, clarity of just what is being put is beyond being just desirable. 118It would be convenient to refer to the Liao motion. The way the application was advanced was to seek, pursuant to the statutory grant of power, that the defendant be ordered to make admissions in accordance with a list in "annexure A" to the motion (prayer 2). What eventuates in the annexure is a schedule of particulars contained in TFASC. 119A minor example of the confusion emergent from the not inconsiderable written material is a response by the defendant to particulars of malice (b) and (c). In the latest documentation to arrive from the plaintiffs it is expressly stated that no such admissions are sought. 120The procedure adopted of seeking admissions by reference to particulars which frequently involved more than one proposition highlights the difficulties which have arisen out of the plaintiffs' failure to specify by appropriate notice just what fact it is intending to seek to have admitted in each instance. 121It becomes even more difficult to deal with the plaintiffs' applications because they are supported by submissions which simply recite the particulars and then passages from the judgments in the Zhu proceedings and infer, without precise identification, that all the facts in any particular must have been found in the previous case to the level that contradiction should not be permitted on the part of the defendant because to do so would amount to an abuse. 122This method adopted by the plaintiffs of simply "pairing" particulars with extracts from the judgments in the Zhu case omits to attempt to demonstrate how any particular extract relates to an issue therein which is identical with an issue in the plaintiff's actions nor, without analysis of context, can it be confidently determined that the extracts represent a final finding as opposed to a comment upon particular evidence. 123It was not disputed that the written submissions of the defendant in these regards were not supplied until the morning (Monday) of the first day of hearing of the motions. At the conclusion of the oral hearing on the morning of the second day, leave was sought by the plaintiffs to send written submissions in response and that leave was granted to be exercised by a supply of submissions by close of business on the Friday. Submissions were apparently dispatched electronically at 5:01 pm on that day and I regard this as sufficient compliance with the terms of leave. However, accompanying the submissions were copies of the Further Amended Defence to Amended Summons and the Reply in the Zhu proceedings which counsel stated "we wish to tender". No leave to tender further material was sought and, obviously, no such leave has been granted. The tender is rejected. 124I indicated earlier that I would return to the defendant's submission that the course taken by the plaintiffs was vexatious. I would uphold the submission. A good example of why the failure to deliver specific Notice to Admit Facts is of that character is detectable in the very first dispute concerning paragraph 10 "particulars of absence of reasonable and probable cause" which is in these terms: "a) between 23 November and 3 December 1999 in the course of her employment with SOCOG Ford informed DS Nicholls that - i) certificates of membership to the Olympic Club provided to YF Wang by the plaintiff and/or Zhang were not genuine, and, ii) the plaintiff and Zhang did not have authority to provide Olympic Club tour packages to Chinese nationals" 125The defendant pointed out that any agreements were to sell (Olympic) Club memberships and not tour packages. To enforce admission of the proposition that what was communicated was that the certificates were not genuine I was directed to paragraph 149 of the judgment of Bergin J. Her Honour did not there refer to the certificates being not genuine but to the information on them being not genuine. That she later (at paragraph 155) refer to the certificates as not genuine would have to be understood in the light of what was earlier said. Whether anything turns on the distinction, I do not know but, unless there is clarity, the basis for compelling admission does not exist. A similar situation pertains to whether or not "club memberships" and "tour packages", are used interchangeably. 126The course chosen by the plaintiffs as above described weighs against the exercise of discretion vested by s 71(1)(c) of the Civil Procedure Act to order the defendant to make admissions, not only because of the non specificity in what is sought to be derived from the recitation of extracts from the Zhu judgments but because of the attempt to force the defendant to admit particulars which as I have said, on frequent occasions, assert more than one fact. I am conscious of observations that the provision permits its use in wide circumstances if the interests of justice require: Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738, however in my view, the interests of justice would not be served by the imposing of obligations to admit on the defendant such as are sought by the plaintiffs in this motion. 127I would refuse the relief sought in prayer 2 of each of the amended notices of motion. 128I summarise the outcomes of the four notices of motion. Zhang v NSW Notice of Motion by defendant filed 9 November 2011 I order: 1.The plaintiff's claim for damages in respect of the Ping Ba Hotel be stayed until further order of the Court. 2.The plaintiff pay the defendant's costs thrown away by reason of the amendments to the plaintiff's Further Amended Statement of Claim. 3.Save the question of costs of the motion, the balance of applications in the motion refused. Liao v NSW Notice of Motion by defendant filed 9 November 2011 I order: 1.That the plaintiff pay the defendant's costs thrown away by reason of the amendments to the plaintiff's Further Amended Statement of Claim. 2.Save the question of costs of the motion, the remaining application in the motion refused. Zhang v NSW Amended Notice of Motion by plaintiff filed 20 March 2012 I order: 1.Paragraph 18 of the Defence to the Third Further Amended Statement of Claim struck out. 2.Applications to strike out paragraphs 12, 16, 17, 19, 19A and 19B of that Defence refused. 3.Application to direct the defendant to make admissions in accordance with annexure A to the Notice of Motion refused. Liao v NSW Amended Notice of Motion by plaintiff filed 21 March 2012 I order: 1.Paragraph 19 of the Defence to the Third Further Amended Statement of Claim struck out. 2.Applications to strike out paragraphs 13, 17, 18, 20, 21, 22, 25 and 30 of that Defence refused. 3.Application to direct the defendant to make admissions in accordance with annexure A to the Notice of Motion refused. All four Notices of Motion 1.Costs of all motions reserved to be dealt with by the judge allocated to continue the case management of these actions or as that judge directs.