Huang v Wong

[2018] NSWCA 45

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Huang v Wong [2018] NSWCA 45

Hearing dates:

12 March 2018

Date of orders:

12 March 2018

Decision date:

14 March 2018

Before:

Simpson JA

Decision:

(1) Notice of motion dated 12 March 2018 dismissed.

 (2) Costs reserved.

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application to vacate hearing date – where self-represented litigant – where there is no prospect of securing legal representation – no issue of principle

 

CIVIL PROCEDURE – Court of Appeal – application for order preventing court registry from preparing appeal books – no issue of principle

 

CIVIL PROCEDURE – registrars – powers of registrar – power to waive, postpone and remit fees – whether registrar erred in refusing to waive fees

  JURISDICTION – Court of Appeal – application for access to audio recordings of District Court proceedings – whether Court of Appeal has power to make such order

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), Pt 7 Div 9, rr 7.37, 51.25

Cases Cited:

Chao (Isabel) Huang (plaintiff) v Dr Kam S Wong (defendant) (District Court (NSW), 3 November 2016, unrep)

Category:

Procedural and other rulings

Parties:

Chao (Isabel) Huang (Appellant)
Kam S Wong (Responent)

Representation:

Counsel:
In person (Appellant)
A Saxton (Respondent)

  Solicitors:
N/A (Appellant)
Meridian Lawyers Ltd (Respondent)

File Number(s):

2016/351845

 Decision under appeal 

Court or tribunal:

Court of Appeal

Date of Decision:

14 February 2018

Before:

Registrar J Riznyczok

File Number(s):

2016/351845

Judgment

1. SIMPSON JA: On 3 November 2016 in the District Court Gibb DCJ entered judgment for the defendant (the present respondent, Dr Kam S Wong) in proceedings brought by the appellant claiming damages for personal injury: Chao (Isabel) Huang (plaintiff) v Dr Kam S Wong (defendant) (District Court (NSW), 3 November 2016, unrep). On or about 24 November 2016 the appellant filed a Notice of Intention to Appeal; on 2 February 2017 she filed a Notice of Appeal. On 14 February 2018 the appeal was fixed for hearing on 18 April 2018.

2. By notice of motion sent to the Court (electronically) either late in the evening of 11 March 2018 (a Sunday) or early on 12 March 2018, the appellant sought the following orders:

“1  Vacate the appeal hearing date 18 April 2018 (listed by Registrar J Riznyczok in the direction hearing on 14 February 2018)

2  Cancel the direction given by Registrar J Riznyczok in the direction hearing on 14 February 2018 about that the Court would prepare the Appeal Book.

3 Pursuant to UCPR 2005 – REG 7.36, the Registrar will correctly implement the order made by Justice M Beazley President on 13 February 2017 for referral to the Pro Bono Panel for legal assistance and fulfil the referral for a Pro Bono barrister and a Pro Bono solicitor to represent the Appellant in the ongoing appeal proceeding.

4  Pursuant to Section 14 of the Attorney General’s Guidelines on Fee Waiver and Postponement, the Registrar immediately notify the Applicant (Appellant) of the review decision in writing with regard to the Applicant (Appellant)’s review application received at the Registry of the Court of Appeal on 5 January 2018 and a complete copy received by Registrar J Riznyczok in the direction hearing on 14 February 2018.

5  Release to all the parties with the sound recording between 9:55:15 AM and 10:03:46 AM (8m31s) just prior to the hearing on 22 August 2016 in the courtroom JMT-16D of the District Court of New South Wales.”

3. She nominated as “supporting documents” an affidavit sworn by Hong (Hope) Liao sworn on 5 January 2018, and a new affidavit proposed to be filed by 30 March 2018.

4. The notice of motion was referred to me for hearing on 12 March 2018. In addition to the affidavits mentioned, it was supported by an 18 page letter signed by the appellant and dated 11 March 2018.

5. The appellant was not legally represented on the hearing of the notice of motion. She was assisted by her mother, Hong (Hope) Liao, whose command of English is (as she herself said) “limited”.

6. At the conclusion of the hearing I made an order dismissing the notice of motion and reserving costs, with reasons to be delivered at a later date. I made the orders at that time having regard to the relative imminence of the hearing date. These are my reasons for doing so.

Background

7. The District Court proceedings were commenced in November 2013. By the Amended Statement of Claim, the appellant alleged that she had suffered personal injury caused by negligent treatment afforded to her by the respondent, a psychiatrist. According to an “Outcome Details” sheet, the proceedings were heard over 12 (not all consecutive) days in August and September 2016. The appellant was not legally represented, but was assisted by her mother and an interpreter. The respondent was represented by counsel.

8. The appellant’s Notice of Appeal, which plainly was not prepared by anybody with legal training, runs to 66 pages. It is a collection of factual assertions and arguments. It is extremely difficult, if not impossible, to discern any arguable ground of appeal contained within it.

9. On 13 February 2017 Beazley ACJ referred the appellant to the Registrar for referral to the Pro Bono Panel for legal assistance. She did this in accordance with the provisions of Div 9 of Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The appellant was referred to Mr Oag of counsel, who appeared on the hearing of the notice of motion in order to assist the Court. Mr Oag informed me that the administrators of the Pro Bono Panel were not in a position to provide legal representation to the appellant.

The orders sought in the notice of motion

Orders 1 and 3

10. By Order 1 the appellant seeks to vacate the hearing date of 18 April 2018, and by Order 3 she seeks an order that the Registrar “correctly implement the order” made by Beazley ACJ for referral to the Pro Bono Panel for legal assistance. These two orders are linked because the essence of the argument advanced by Ms Liao in support of the adjournment of the hearing was that the appellant is entitled to legal representation in accordance with the “order” made by Beazley ACJ on 13 February 2017. That is a misunderstanding of the provisions of UCPR Pt 7 Div 9, which is concerned with “court appointed referral for legal assistance”. That Division deals with a scheme or program of legal assistance provided by members of the Law Society and the Bar Association. It is designed to facilitate pro bono advice, representation and assistance in drafting or settling documents (r 7.37) for litigants without means to secure paid legal advice. It does not, however, and could not, purport to compel any legal practitioner to provide unpaid legal assistance in any of the categories mentioned. Order 3 as sought in the notice of motion appears to contemplate that the referral to the Registrar by the Beazley ACJ was not properly “implemented”. There is no reason to conclude that that is so. Certainly there is no evidence that the referral was not properly implemented, and the evidence tends to establish that the procedures were properly followed. The appellant has had access to members of the Pro Bono Panel but they are unable further to assist her.

11. Ms Liao was unable to give any indication that, absent legal representation under the Pro Bono Scheme, the appellant would have any prospect of securing legal representation. Accordingly, there is nothing to be gained by adjourning the hearing fixed for 18 April 2018. There was no basis for an order of the kind claimed as proposed Order 3, and therefore no basis to vacate the hearing date as sought by proposed Order 1.

Order 2: the direction for preparation by the Registry of appeal books

12. The purpose for which this order is sought is unclear, and Ms Liao was, despite being pressed to do so, unable to offer any greater clarity. Ordinarily, it is the obligation of the appellant to prepare appeal books (UCPR 51.25). That is subject to a direction otherwise. On 14 February 2018 the Registrar directed that the appeal books be prepared in the Registry.

13. I was informed by Mr Oag that, in some unexplained way, the exhibits in the District Court proceedings had been destroyed (by the District Court) and that it had been necessary, and possible, to obtain substitute copies. This did not appear to be Ms Liao’s concern. Some of the documents, it appears, have been provided by the respondent on a disc. Ms Liao did indicate that her examination of the transcripts of the District Court proceedings with which she has been provided, when compared with the audio recordings, exposed some discrepancies. If there are discrepancies, the appellant can be in a position to identify those to the court on the hearing of the appeal. It has no bearing on the manner of preparation of the appeal books.

14. Just why the appellant opposes the preparation of the appeal books by the Registry is unclear. More significantly, she did not propose any alternative for the preparation of the appeal books. There was no basis in the evidence for making Order 2 as sought.

Order 4: fee waiver

15. This, too, is unclear. It appears that on about 1 December 2017 Ms Liao asked the Registrar to waive fees payable on a notice of motion she proposed to file. The order she proposed to seek in that notice of motion was an order that the legal practitioners who have represented the respondent in the District Court “must withdraw from representing the respondent …” on the appeal. According to the appellant’s letter of 11 March (which was not in affidavit form, and not sworn or affirmed) the Registrar on 6 December 2017 refused to grant waiver of fees, on the ground that the notice of motion had no prospects of success.

16. Ms Liao now seeks to support her application for fee waiver by reference to her affidavit of 5 January 2018, evidence that was not before the Registrar at the time he made his decision. The order as framed appears to imply that the appellant has made an application for review of that decision, but I was not referred to any evidence to support that. There was no basis for finding any error in the decision of the Registrar, and therefore no basis for making Order 4 as sought.

Order 5: release of sound recordings

17. Ms Liao explained that what was sought by Order 5 was access to court reporting tape recordings of a period of eight minutes and some seconds prior to the commencement of the proceedings before the primary judge on 22 August 2016. It appears that she has access to both transcript and recordings of the proceedings in the presence of the primary judge; what she now seeks is recordings of a period before the primary judge entered the court.

18. It seems that she did in fact request the court reporting service (RSB Service Liaison) to provide tape recordings, to which she received the following reply (Exhibit A):

“I have written to obtain permission to grant your request however it has been denied. I was advised the following:

That the only material ever copied or transcribed is the record of the hearing which does not start until the Judge enters the courtroom.

By the same token copying and transcribing stops when the Judge adjourns the court.”

19. Ms Liao was unable to identify any power in this Court to make an order of the kind she sought. I am not satisfied that there is such power. There are other means by which Ms Liao might seek access to the recordings, if they exist. It was inappropriate to make Order 5 as sought.

20. Since I concluded that none of the orders sought in the notice of motion ought to be made, I dismissed the notice of motion.

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Decision last updated: 14 March 2018