Wang v Botany View Hotel - [2017] NSWCA 249

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wang v Botany View Hotel [2017] NSWCA 249
Hearing dates: 29 September 2017
Decision date: 09 October 2017
Before: Macfarlan JA;
White JA
Decision:
Application for leave to appeal dismissed with costs.

Catchwords: CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – interlocutory decision – summary dismissal – UCPR r 13.4 – no issue of principle – no question of public importance – no arguable error – application seeks to re-canvass issues which have been finally determined in other proceedings – application dismissed
Legislation Cited: Supreme Court Act 1970 (NSW) s 101(2)(e), (l)
Workers Compensation Act 1987 (NSW)
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
The Age Co Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26
Wang v Botany View Hotel [2011] NSWSC 1487
Wang v Botany View Hotel [2014] FCCA 850
Wang v Purpose Pty Ltd and Robert Murphy [2011] FCA 381
Wang v Purpose Pty Ltd t/as Botany View Hotel [2017] NSWSC 644
Yun Fu Wang v Botany View Hotel [2008] NSWCA 229
Yun Fu Wang v Botany View Hotel [2009] HCASL 68
Yun Fu Wang v Botany View Hotel [2009] NSWCA 384
Yun Fu Wang v Botany View Hotel [2014] FCA 730
Yun Fu Wang v Botany View Hotel Limited [2008] NSWWCCPD 25
Yun Fu Wang v Botany View Hotel Limited [2009] NSWWCCPD 63
Category: Procedural and other rulings
Parties: Yun Fu Wang (Applicant)
Botany View Hotel (Respondent)
Representation:
Counsel:
In person (Applicant)
C Dezarnaulds, solicitor (Respondent)
Solicitors:
Dezarnaulds Legal (Respondent)

File Number(s): 2017/226258
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2017] NSWSC 644

Date of Decision:

16 May 2017

Before:

McCallum J

File Number(s):

2016/266303

Judgment

THE COURT: This is an application for leave to appeal from an order of the Common Law Division (McCallum J) that the applicant’s proceedings be summarily dismissed (Wang v Purpose Pty Ltd t/as Botany View Hotel [2017] NSWSC 644).
The applicant filed four summonses in the same proceedings. Each was described as a summons commencing an appeal or a summons seeking leave to appeal in respect of a proceeding in the Local Court, 2016/0005281 (sic). A record of the Local Court in the matter of Yun Fu Wang v Robert Murphy trading as Botany View Hotel in proceeding 2016/00052581 records that on 11 August 2016 the applicant’s proceedings were dismissed pursuant to Uniform Civil Procedure Rules r 13.4. The applicant was ordered to pay the defendant’s costs fixed in the sum of $300.
The primary judge found that the summons commencing a purported appeal or application for leave to appeal was incomprehensible. Her Honour said (at [7]):

“The document is expressed in obscure language, with unclear references to statutory provisions and common law decisions and purported quotes collected together with other words which make no sense…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wang v Botany View Hotel

Details

AGLC: Wang v Botany View Hotel [2017] NSWCA 249
Case: [2017] NSWCA 249
Decision Date: 09 October 2017

CaseChat Overview and Summary

The Court of Appeal of New South Wales, constituted by Macfarlan and White JJA, considered an application for leave to appeal an interlocutory decision concerning summary dismissal. The applicant, Mr Wang, sought leave to appeal a decision that had previously been made in relation to his case against the Botany View Hotel.

The primary legal issue before the Court of Appeal was whether leave to appeal should be granted. This involved assessing whether the application raised an issue of principle, a question of public importance, or an arguable error in the decision under appeal, pursuant to rule 13.4 of the Uniform Civil Procedure Rules 1995 (NSW).

The Court determined that the application did not meet the criteria for granting leave to appeal. It found that the application sought to re-argue issues that had already been finally determined in separate proceedings. Consequently, the Court concluded there was no issue of principle, no question of public importance, and no arguable error in the interlocutory decision.

Accordingly, the application for leave to appeal was dismissed, and Mr Wang was ordered to pay the costs of the application.

Orders

Orders of the court

Application for leave to appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Wang v Botany View Hotel [2017] NSWCA 249
Hearing dates:	29 September 2017
Decision date:	09 October 2017
Before:	Macfarlan JA; White JA
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – interlocutory decision – summary dismissal – UCPR r 13.4 – no issue of principle – no question of public importance – no arguable error – application seeks to re-canvass issues which have been finally determined in other proceedings – application dismissed
Legislation Cited:	Supreme Court Act 1970 (NSW) s 101(2)(e), (l) Workers Compensation Act 1987 (NSW)
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 The Age Co Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 Wang v Botany View Hotel [2011] NSWSC 1487 Wang v Botany View Hotel [2014] FCCA 850 Wang v Purpose Pty Ltd and Robert Murphy [2011] FCA 381 Wang v Purpose Pty Ltd t/as Botany View Hotel [2017] NSWSC 644 Yun Fu Wang v Botany View Hotel [2008] NSWCA 229 Yun Fu Wang v Botany View Hotel [2009] HCASL 68 Yun Fu Wang v Botany View Hotel [2009] NSWCA 384 Yun Fu Wang v Botany View Hotel [2014] FCA 730 Yun Fu Wang v Botany View Hotel Limited [2008] NSWWCCPD 25 Yun Fu Wang v Botany View Hotel Limited [2009] NSWWCCPD 63
Category:	Procedural and other rulings
Parties:	Yun Fu Wang (Applicant) Botany View Hotel (Respondent)
Representation:	Counsel: In person (Applicant) C Dezarnaulds, solicitor (Respondent) Solicitors: Dezarnaulds Legal (Respondent)
File Number(s):	2017/226258
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2017] NSWSC 644 Date of Decision: 16 May 2017 Before: McCallum J File Number(s): 2016/266303