Court of Appeal
New South Wales
Case Title: Liao v State of New South WalesZhang v State of New South Wales Medium Neutral Citation: [2014] NSWCA 71 Hearing Date(s): 25 July 2013 Decision Date: 24 March 2014 Before: Beazley P at [1]; Basten JA at [2]; Barrett JA at [137] Decision: Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PROCEDURE - pleading - prior adjudication in proceedings in which the present defendant was sued by different plaintiff - application for order striking out parts of the defence said to reflect findings in the earlier proceedings - whether abuse of process to put the plaintiff to proof of such matters - PROCEDURE - admissions - power of court to compel admissions - findings in the earlier proceedings against the defendant said to require admissions by the defendant in present proceedings Legislation Cited: Civil Procedure Act 2005 (NSW)
Commercial Causes Act 1903 (NSW)
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Attorney-General v Parnther (1792) 3 Bro CC 441; (1792) 29 ER 632
Bailey v Director-General, Department of Natural Resources [2013] NSWSC 515
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd [1982] 2 Lloyd's Rep 132
Brandon v Commonwealth [2005] FCA109
Calyon v Michailaidis [2009] UKPC 34
Conlon v Simms [2006] EWCA Civ 1749; [2008] 1 WLR 484
Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738
D'Orta-Ekanaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Downey v Acting District Court Judge Boulton (No 4) [2010] NSWCA 114
Eastern Express Pty Ltd v General Newspapers Pty Ltd (1992) 35 FCR 43
Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188
Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669
Hodges v State of New South Wales [1988] HCA 9; (1988) 62 ALJR 190
Hollington v F Hewthorn & Co Ltd [1943] KB 587
Hopcroft & Edwards v Edmunds [2013] SASCFC 38
Hunter v Chief Constable of West Midland Police [1982] AC 529
Ishac v David Securities Pty Ltd (Supreme Court of New South Wales, 13 December 1991)
King's City Holdings Ltd v De Monsa Investments Ltd [2013] HKCA 292
Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333
North West Water Ltd…
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Details
- Case
- [2014] NSWCA 71
- Decision Date
CaseChat Overview and Summary
In *Liao v New South Wales*, the Court of Appeal of New South Wales considered an appeal concerning the adequacy of a defence and the compulsion of admissions in proceedings brought by Mr Liao and Mr Zhang against the State of New South Wales. The dispute arose from allegations of malicious prosecution and lack of reasonable and probable cause in relation to charges laid against the plaintiffs. The appeal involved a review of the primary judge's orders regarding the pleadings and the defendant's obligation to make admissions.
The central legal issues before the Court of Appeal were whether certain parts of the defendant's defence should be struck out as an abuse of process, and whether the court had the power to compel the defendant to make admissions in the present proceedings based on findings made in prior, related proceedings. Specifically, the court examined whether it was an abuse of process for the defendant to require the plaintiffs to prove matters that had allegedly been determined in earlier litigation where the defendant was sued by a different plaintiff.
The Court of Appeal reasoned that the defendant should be granted leave to amend its defence in accordance with a document submitted to the court, subject to certain findings. The court found that the allegation of embarrassment in the pleading was unnecessary and not a relevant ground for striking out a pleading under the Uniform Civil Procedure Rules 2005 (NSW). Regarding the compulsion of admissions, the court noted that while the argument was developed by reference to Mr Liao's proceedings, it was convenient to address the issue in relation to Mr Zhang's claim first. The court concluded that for certain particulars, the defendant's proposed amended defence made relevant admissions, rendering the need for further compelled admissions unnecessary. For other particulars, the court indicated that the issues should be dealt with by a judge in the Division, particularly where the resolution of pleading issues relied on a document not before the trial judge.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
The central legal issues before the Court of Appeal were whether certain parts of the defendant's defence should be struck out as an abuse of process, and whether the court had the power to compel the defendant to make admissions in the present proceedings based on findings made in prior, related proceedings. Specifically, the court examined whether it was an abuse of process for the defendant to require the plaintiffs to prove matters that had allegedly been determined in earlier litigation where the defendant was sued by a different plaintiff.
The Court of Appeal reasoned that the defendant should be granted leave to amend its defence in accordance with a document submitted to the court, subject to certain findings. The court found that the allegation of embarrassment in the pleading was unnecessary and not a relevant ground for striking out a pleading under the Uniform Civil Procedure Rules 2005 (NSW). Regarding the compulsion of admissions, the court noted that while the argument was developed by reference to Mr Liao's proceedings, it was convenient to address the issue in relation to Mr Zhang's claim first. The court concluded that for certain particulars, the defendant's proposed amended defence made relevant admissions, rendering the need for further compelled admissions unnecessary. For other particulars, the court indicated that the issues should be dealt with by a judge in the Division, particularly where the resolution of pleading issues relied on a document not before the trial judge.
The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
The parties duly met on 13 August 2013 and subsequently filed a document setting out their respective positions with respect to repleading each of the disputed paragraphs. Although a covering letter noted that the parties had been unable to agree as to the proposed repleading of the defences, that proposition was not entirely accurate. There had, in fact, been considerable progress made, which limited the areas in dispute significantly. Given the course that has been taken, there is a lack of practical utility in addressing the precise terms of the pleading before the primary judge. The preferable course is to resolve the pleading issues by reference to the document submitted on 14 August 2013, which should be marked as exhibit "A" on the appeal.(1) Further background(a) the agents' authority The language employed in legal texts (including pleadings and judgments) is often considered dry and austere, to the extent of being tiresome. That is because lawyers seek to use precisely the same word or phrase consistently throughout a document. To refer in a judgment to Mr Zhang and Mr Liao by name on some occasions and in other places as "the appellants" contravenes the principle of consistency; however, it is unlikely to give rise to confusion, if the context is understood. Sometimes similar phrases are used to refer to the same conduct or concept, but in other circumstances such a course may seek to point up differences over and above the similarities. For example, when, in her judgment in the Zhu proceedings, Bergin J referred to "club memberships" and "tour packages", was she referring to the same concepts? Similarly, in describing "non-genuine membership certificates", and certificates that "contained numbers that were not on the Club database", was the judge describing the same idea, or making a point of distinction? These issues cannot usefully be addressed by reference to semantics: it is necessary to understand the language used in the context provided by the evidence. The staging of the Olympic Games in Sydney in 2000 involved complex legal provisions for the protection of intellectual property and extensive local and international marketing strategies. A company involved in providing consulting services with respect to marketing was Synthesis Consulting Pty Ltd ("Synthesis"). Jointly with the Australian Organising Committee and SOCOG, Synthesis entered into a trust deed in September 1997 pursuant to which the Olympic Club Trust was established, with a corporate trustee, TOC Management Services Pty Ltd ("TOC"). TOC appointed a Mr Noble, a chartered accountant working for Synthesis, as its commercial director and Mr Keith Wyness as its managing director: Bergin J at [10]-[14]. The Club was established in December 1997 by the "Establishment Agreement" entered into between the same parties (including TOC) "as an affinity program" to have effect by way of contract between TOC and each member: at [15]. Among other things, members of the Club would obtain "Olympic benefits" which were defined to include tickets to Olympic functions, including the official dress rehearsal of the opening ceremony and other particular privileges, including the right to become a volunteer and be involved in the torch relay: at [16].
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The allegation of embarrassment at (v) is unnecessary. Embarrassment may provide a ground for striking out a pleading, but it is not a relevant answer to the content of a pleading which is not sought to be struck out: cf Uniform Civil Procedure Rules 2005 (NSW), r 14.28.(3) Conclusions as to pleading The defendant should seek leave to amend its defence in accordance with the document provided to the Court on 14 August 2013, subject to the preceding findings. To the extent that those findings give rise to uncertainty and to the extent that they reserve the right of the defendant to support particular aspects of its proposal, those matters should be dealt with by a judge in the Division. Because these issues have been resolved by reference to a document which was not before the trial judge, there is no need to interfere with the orders made by him in respect of Mr Zhang's notice of motion filed 20 March 2012, being orders 1 and 2.(4) Direction to make admissions (Zhang) Although the argument with respect to the admissions was developed by reference to the documents in Mr Liao's proceedings, it is convenient to commence with Mr Zhang as the discussion so far as focused on his claim. The admissions sought related to particulars contained within paragraphs 9, 12 and 19 of that claim. (a) paragraph 19 Dealing with paragraph 19 first, the State's proposed amended defence makes relevant admissions, without the need for Mr Zhang to rely on admissions. There is, accordingly, no purpose in requiring admissions with respect to the particulars supporting that allegation. Paragraphs 9 and 12 of the claim fall into a different category. Paragraph 9 alleges that the "charging and prosecution of the Charges by the DS Nicholls against the plaintiff was malicious and without reasonable and probable cause". The phrase "the Charges" was defined in paragraph 4 to refer to charges laid by Detective Sergeant Nicholls at Waverley Local Court on 27 March 2000. In answer to paragraph 4, the State accepted that Mr Zhang was arrested on 27 March 2000 and charged at Waverley Local Court with two contraventions of s 178BA of the Crimes Act 1900 (NSW). There is no reference in that paragraph to the role of Detective Sergeant Nicholls, but in the previous paragraph of the defence, the State had accepted vicarious liability for the conduct of Detective Sergeant Nicholls. It may be assumed that his involvement was admitted. The State denied paragraph 9, by which it may be taken to have denied that the actions of Detective Sergeant Nicholls against Mr Zhang were "malicious and without reasonable and probable cause". The particulars are lengthy, but unfortunately, they must be addressed seriatim. It may be noted that counsel for the appellant provided little by way of assistance in submissions. In relation to Mr Zhang, all that was done was to refer the Court to the submissions before the primary judge. Particular (a) was in the following terms:"Between 23rd November and 3rd 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 Liao were not genuine, and,ii. the Plaintiff and Liao did not have authority to provide Olympic Club tour packages to Chinese nationals."
Ratio Decidendi
Legal Principle Established
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