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

1. 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).

2. 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.

3. 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 but which have a broad theme suggesting an underlying grievance about the failure of a claim for compensation as an employee. The only sense that can be made of the summons must be gleaned from earlier decisions in other proceedings commenced by Mr Wang, a number of which or parts of which are annexed to Mr Wang’s affidavit filed 4 May 2017, which he read in support of his application.”

4. The statement of claim that was summarily dismissed by the Local Court on 15 August 2016 was described by the primary judge in the following terms (at [12]):

“Apart from being handwritten and difficult to read, the statement of claim, like the summons before this Court, is a collection of obscure references to unidentified statutes and common law decisions, purported quotes and other words attempting to string those pieces of information together. Notwithstanding the absence before this Court of the published reasons of the magistrate, I am confident in concluding that it was entirely open to the magistrate to dismiss those proceedings pursuant to r 13.4.”

5. Her Honour’s description of both the statement of claim filed in the Local Court and the summonses filed in the Common Law Division is apt. The applicant filed an affidavit on 4 May 2017. He did not seek to identify what cause of action he was asserting in his statement of claim. The first paragraph gives its flavour:

“1.   Cennelly v Castillo [1987] the court enter an order of default defendant still does not respond: president J order ‘Dr. Tam report the employer put into something’, ‘employer and GIO copy police report against’, Federal Emmett J order ‘the employer bring wrong rule against right think person unfair proceeding’, plaintiff can service complaint in summons no leaf appeal, the ground appeal in Affidavit no leave appeal.”

6. The summons seeking leave to appeal to this Court is also incomprehensible. It includes the following:

“- Defendant false to police investigated, false all medical report, refused pay recovered award The notice of motion cannot issue relate 13.4, s 708-712, s 716, s 83A, s 620. Pay cost

- Federal Emmett J order: ‘defendant continue bring wrong rule against right think person

- Employer adverse contract made false through police report, medical reports, QBE and Workcover agreed pay Federal award, QBE copy wrong document pay $3.5B

Yun Fu Wang”

7. The draft notice of appeal identifies the following grounds of appeal:

“s 351 the employer adverse contract false to police s 708-712, s 83A made false document, s 57(3) corporation made all false medical reports.”

8. In the draft notice of appeal the applicant described what judgment or order he sought in place of the decision of the court below. He said he sought “Arbitrator decision verdict”.

9. The summons seeking leave to appeal was accompanied by a 43-page closely typed document that is also incomprehensible.

10. The applicant’s oral submissions were very hard to follow. He asserted that the GIO had made a false document, that he had suffered a work injury, that his employer had given a false document to the police, and that WorkCover had required QBE (the workers’ compensation insurer) to pay $404,000, but it created a false document and refused to pay. He complained of events in the Federal Court in 2011, although the exact nature of the complaint was not clear. The applicant’s submissions before this Court, although largely unintelligible, seemed to be directed to the fate of earlier proceedings.

11. The applicant did not identify any error in the primary judge’s reasons.

12. As the primary judge found, what can be gleaned from the materials placed before the Court by the applicant is his attempt to reopen proceedings that were finally determined against him in 2009.

13. In 2000 the applicant was employed at the Botany View Hotel. He alleged that he suffered an incapacitating injury on 9 August 2000. His claim for workers’ compensation payments was denied. On 3 August 2007 an Arbitrator issued a Certificate of Determination denying the applicant an award. An appeal from that decision was dismissed by Acting Deputy President O’Grady on 15 February 2008 (Yun Fu Wang v Botany View Hotel Limited [2008] NSWWCCPD 25). He found that having regard to the findings of fact made by the Arbitrator it was clear that the applicant suffered injury in the course of his employment on 9 August 2000, that being a fall occasioned by reason of a post-traumatic seizure. That seizure was directly related to a head injury the applicant sustained on 8 August 2000 when he was assaulted. The Deputy President found that the applicant’s employment was not a substantial contributing factor to that fall or any of the proven consequences of the fall and accordingly, the injury was not compensable under the Workers Compensation Act 1987 (NSW).

14. An application for leave to appeal from that decision was dismissed by the Court of Appeal on 17 September 2008 (Yun Fu Wang v Botany View Hotel [2008] NSWCA 229).

15. On 1 April 2009 the High Court refused special leave to appeal (Yun Fu Wang v Botany View Hotel [2009] HCASL 68). The High Court (Heydon and Bell JJ) also said that the papers filed by the applicant were extremely difficult to understand.

16. The applicant filed an application for reconsideration of the decisions of the Workers Compensation Commission of 3 August 2007 and 26 February 2008. On 10 June 2009 that application was dismissed by Deputy President O’Grady (Yun Fu Wang v Botany View Hotel Limited [2009] NSWWCCPD 63). An application for leave to appeal to the Court of Appeal from that decision was dismissed on 18 November 2009 (Yun Fu Wang v Botany View Hotel [2009] NSWCA 384 (McColl JA and Handley AJA). McColl JA observed that:

“[9]   It is difficult to extract from the voluminous materials included in the White Book prepared for the leave application the basis upon which the applicant seeks to challenge the reconsideration decision, let alone identify any ‘point of law’ which could attract relief if leave were granted.”

17. Her Honour observed that in oral submissions the applicant appeared to seek to re-canvass the original decisions rather than the reconsideration decision (at [8]).

18. Undeterred, the applicant commenced a new proceeding in the Federal Magistrates Court on 15 October 2010. That application was dismissed on 16 February 2011. On 15 April 2011 the Federal Court (Nicholas J) refused an application for leave to appeal from the decision of the Federal Magistrates Court (Wang v Purpose Pty Ltd and Robert Murphy [2011] FCA 381).

19. On 6 June 2011 the applicant lodged a second application for reconsideration of the Workers Compensation Commission. On 14 June 2011 the Registrar of the Commission advised the applicant that the Commission had exhausted its jurisdiction. His documents were returned.

20. On 13 July 2011 the applicant filed a summons in the Supreme Court. It was dismissed pursuant to UCPR r 13.4 by the Registrar on 22 July 2011. Notwithstanding this dismissal, the applicant filed an amended summons in the Supreme Court in the same proceeding on 5 October 2011. He also sought review of the Registrar’s decision. Hislop J found that the claim that the applicant sought to bring on the summons was difficult to understand and that he failed to clarify the nature of the case he sought to make (Wang v Botany View Hotel [2011] NSWSC 1487 at [17]). Hislop J said (at [18]):

“At one stage Mr Wang appeared to assert that he wished to bring a common law action for damages for his work injury, though this does not appear from the terms of the summons. Such a claim would not be supportable in the light of previous findings of no compensable injury, the limiting and capping provisions of the relevant legislation and the time limit for commencing such claims.”

21. The Registrar’s decision was upheld and the purported amended summons filed on 5 October 2011 was also dismissed.

22. Matters did not end there. On 21 August 2013 the applicant commenced proceedings in the Fair Work Division of the Federal Circuit Court. Those proceedings were summarily dismissed by Judge Emmett on 28 April 2014 (Wang v Botany View Hotel [2014] FCCA 850). Her Honour observed (at [5]) that the grounds of the application and the order sought was so incomprehensibly drafted that it was impossible to understand what relief was sought and the basis upon which the applicant sought that relief. An application for extension of time and for leave to appeal from the orders of the Federal Circuit Court was dismissed by the Federal Court (Jagot J) on 7 July 2014 (Yun Fu Wang v Botany View Hotel [2014] FCA 730).

23. The statement of claim filed in the Local Court, and the four summonses filed in the Common Law Division are similarly incomprehensible. The primary judge found that the proceedings did not disclose a reasonable cause of action (r 13.4(1)(b)) and were vexatious (r 13.4(1)(a)).

24. Leave to appeal is required (Supreme Court Act 1970 (NSW) s 101(2)(e)).

25. Generally it is appropriate only to grant leave to appeal in cases that involve issues of principle, or questions of public importance, or where it is reasonably clear that an error has been made, going beyond what is merely arguable, that occasions an injustice (Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38]; The Age Co Ltd & Ors v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]).

26. This application does not involve an issue of principle, nor a question of public importance. The applicant has not identified any even arguable error. To the contrary, the primary judge was plainly correct.

27. The application for leave to appeal should be dismissed with costs.

**********

Decision last updated: 09 October 2017