Wang v Botany View Hotel
[2014] FCCA 850
•28 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WANG v BOTANY VIEW HOTEL | [2014] FCCA 850 |
| Catchwords: PRACTICE AND PROCEDURE – Failure by the applicant to comply with an order of the Court – whether applicant in default pursuant to r.13.03B of the Federal Circuit Court Rules 2001 (Cth) – whether proceeding should be dismissed by reason of the applicant in default – whether proceeding frivolous, vexatious, or an abuse of the Court’s process – whether proceeding should be dismissed on the basis that the proceeding is frivolous, vexatious, and an abuse of the Court’s process – whether proceeding should be dismissed pursuant to inherent jurisdiction of the Court to regulate its own process – proceeding dismissed for default – proceeding dismissed as vexatious and abuse of Court’s process – proceeding dismissed pursuant to the Court’s inherent jurisdiction to regulate its own process – application dismissed. |
| Legislation: Federal Circuit Court Act 1999 (Cth), s.42 Federal Circuit Court Rules 2001 (Cth), rr.13.03A, 13.03B, 13.10. Federal Court Rules 2011 (Cth) r.16 |
| Cases cited: Wang v Botany View Hotel [2011] NSWSC 1487 Bi v Mourad [2010] NSWSC 17 Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 Rogers v The Queen (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378 Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189 Jago v District Court of New South Wales (1989) 168 CLR 23 Aon Risk Services v Australian National University [2009] HCA 27 Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490 Sea Culture International v Scoles [1991] FCA 523 Batistatos v Roads and Traffic Authority of New South Wales 226 CLR 256 Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd (2009) 239 CLR 75 |
| Applicant: | YUN FU WANG |
| Respondent: | BOTANY VIEW HOTEL |
| File Number: | SYG 1957 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing date: | 28 April 2014 |
| Date of Last Submission: | 28 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter. |
| Solicitor for the Respondent: | Mr Camille Dezarnaulds (Dezarnaulds Legal) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1957 of 2013
| YUN FU WANG |
Applicant
And
| BOTANY VIEW HOTEL |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The respondent seeks an order, by way of an Application in a Case filed 16 April 2014, that the proceeding before this Court, commenced by way of Application on 21 August 2013, be dismissed on the following bases;
i)Rule 13.03B of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) by reason of the applicant’s failure to comply with orders of the Court;
ii)Rule 13.10 of the Rules, that the matter should be disposed of by way of summary dismissal on the basis that the claim is frivolous or vexatious and an abuse of the Court’s process; and
iii)The Court should dismiss the proceeding in accordance with the inherent jurisdiction of the Court to regularise proceedings before it.
The relevant Rules are as follows:
“Rule 13.03A
(1) For rule 13.03B, an applicant is in default if the applicant fails to:
(a) comply with an order of the Court in the proceeding; or
(b) file and serve a document required under these Rules; or
(d) do any act required to be done by these Rules;
…
Rule 13.03B(1)(a)
Orders on default
(1) If an applicant is in default, the Court may order that:
(a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant;
…
Rule 13.10
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(b) the proceeding or claim for relief is frivolous or vexatious; or
(c) the proceeding or claim for relief is an abuse of the process of the Court.”
In support of the Application in a Case, the respondent’s solicitor, Mr Camille Dezarnaulds, read his affidavit, sworn and filed16 April 2014; and the affidavit of Mr Robert Murphy, sworn 19 February 2014 and filed on 21 February 2014.
Mr Murphy’s affidavit annexes a history of the litigation that has taken place between these parties, including a decision of Hislop J in the Supreme Court of New South Wales, dated 2 December 2011 (see: Wang v Botany View Hotel [2011] NSWSC 1487 (“Wang”)). Hislop J’s judgment recites the history of proceedings between these parties and the lack of success in respect of the applicant on each occasion. Hislop J’s summary of the applicant’s various litigations arising from an alleged incapacitating work injury on 9 August 2000 in the course of his employment is as follows:
1. The plaintiff, Mr Wang, was employed by the Botany View Hotel. He alleged he sustained an incapacitating work injury in that employment on 9 August 2000.
2. Mr Wang sought workers compensation from his employer. The claim was disputed. On 3 August 2007 Workers Compensation Commission Arbitrator, Mr Harvey, heard Mr Wang's application. He held:
"[45] ...I am satisfied on the balance of probabilities that, whilst the applicant suffered an injury in the workplace on 9 August 2000, the cause of that injury was the fact that he had sustained a severe assault on the evening of the day before, 8 August 2000, that caused him to suffer a grand mal seizure which caused him to fall to the ground whilst carrying out his employment.
[46] It follows that I find that the applicant's employment was not a substantial contributing factor to the injuries sustained at the workplace on 9 August 2000.
[47] The applicant has established that he suffered an injury in the course of his employment, but has failed to establish that the employment was a substantial contributing factor to the injury. There accordingly must be an award for the respondent."
3. Mr Wang sought leave to appeal to the Acting President of the Workers Compensation Commission. On 26 February 2008 leave to appeal was refused.
4. Mr Wang sought leave to appeal from that decision to the Court of Appeal. The Court of Appeal refused leave on 17 September 2008.
5. Mr Wang sought special leave to appeal to the High Court from the Court of Appeal decision. The High Court observed:
"[3] The papers which the applicant has filed in support of his application for special leave to appeal are extremely difficult to understand. So far as they can be understood, they do not pose any question of law suitable for the consideration of this Court were special leave to be granted, or raise any possibility that an injustice has been done."
6. Mr Wang sought a reconsideration by the Acting President of his 26 February 2008 decision. On 10 June 2009 the application for reconsideration was refused.
7. Mr Wang sought leave to appeal to the Court of Appeal from that decision. The Court of Appeal held that the effect of the Workers Compensation decisions was:
"[2] ...that the applicant's application for worker's compensation benefits was refused on the basis that, although the applicant had fallen at work, the medical evidence did not support the proposition that his employment was a substantial contributing factor, either to the fall, or to any other injuries or disabilities that he had suffered. Accordingly, he could not satisfy the requirements ofsection 9A of the Workers Compensation Act 1987 (NSW)."
The Court of Appeal dismissed the application for leave.
8. In a letter dated 14 June 2011 the Registrar of the Workers Compensation Commission wrote to Mr Wang in the following terms:
“I refer to the application for reconsideration you lodged with the Commission on 6 June 2011 and to the Commission's letter to you dated 28 April 2011.
I confirm that the Commission has exhausted its jurisdiction with respect to the worker's compensation dispute relating to injuries suffered on 9 August 2000.
As such, your application for reconsideration and supporting documentation are returned and no further action will be taken."
9. In January 2001 Mr Wang's employer terminated his services. Mr Wang brought proceedings in the Federal Magistrate's Court. The basis for the claim was unclear. Those proceedings were dismissed on 16 February 2011.
10. Mr Wang then sought leave to appeal to the Federal Court from that decision. Nicholas J refused the application for leave. His Honour, in his reasons for judgment dated 15 April 2011, stated:
“The applicant has filed an affidavit in support of his application for leave to appeal. It contains a great deal of irrelevant matter and is largely incoherent. Nevertheless, I have read the affidavit and listened to the applicant's submissions, with a view to understanding whether the proposed appeal has any prospects of success. In my view it has none."
11. On 13 July 2011 Mr Wang filed a summons against the employer in this Court. The summons described the type of claim being made as follows:
“Civil workers compensation.
(1) Act 1976 sect 25(1) (IAA) The appellate jurisdiction of the court in relation to an appeal from a judgement of the Federal Magistrates Court is to be exercised by (a) - solicitor made a false misconduct relate Federal magistrates made wrong decision, cause Federal Court refused established unfair dismiss case.
(2) Act 1976 - sect 25(2) application (a) for leave appeal to court. - s 345 misrepresentative was no attend court, cause leave appeal.
(3) Act 1976 sect 25(2)(b) for an extension of time, Respondent charge "unfair dismiss have 10 years"; "time limit". It relate s 85, 3(c),Industrial Relations Act 1996, time for making application "the conduct of the employer relating to the dismissal".
(4) s 9AA(1) compensation under this Act is only payable in respect of employment - Employer made false dispute 10 years, on 14104/2011, two employer agreed that "Mr Wang employed, slip injury at work", s 5(2), 1992 Act, unreasonable adjustment to disability, may constitute direct disability. Impose an unjustifiable hardship on them.
RELIEF CLAIMED
1. S 57 Employer covered work injury, refused pay; s57A Clothing Trade award.
2. OHS Employer made false relate workplace health, he aware certain breach and employer against workplace safety, OHS 8(1) Act 2000 NSW, pay $1.65 million."
12. The summons was listed before Registrar Bradford on 22 July 2011. The defendant's solicitor sought an order dismissing the summons with costs. The Registrar dismissed the summons. In doing so he said:
"The relief that is sought in the summons by Mr Wang is relief that I do not believe that this Court can entertain on the basis of the summons as it is presently drawn and, although I can understand Mr Wang purportedly has suffered an injury at work, it would seem that he has been to the Commission and had that matter determined. I do not believe that the present summons can stand. On that basis the summons is dismissed."
13. The Registrar declined to order costs against Mr Wang as he said "it is quite clear that Mr Wang has a number of difficulties in understanding what is taking place and what he has filed here and what has taken place in the past".
14. On 16 August 2011 Mr Wang filed a Notice of Motion seeking "application reivw (sic) 27/07/11 decision pursuant to Part 13 r 13.4. of the Uniform Civil Procedure Rule 2005 for the reason outlined in the affidavite (sic)."
15. On 5 October 2011 Mr Wang filed a "Summons (Amended)". In that document the relief claimed was as follows:
“Employer agreed work injury and lie no work injury, and identify, pay, $1.65 million. Employer made false through medical report, common law duty reference relate information, the Federal Privacy Act1988."
16. The application for review came before me as Duty Judge on 16 November 2011. Mr Wang represented himself on the review. He said he preferred to appear for himself. When necessary he had the services of an Mandarin interpreter. The matter was adjourned part heard to enable the judgment of the Registrar to be obtained. The hearing resumed today.
17. The claim which Mr Wang sought to bring on the summons was not clearly articulated and was difficult to understand. Mr Wang addressed the Court and I have read the documentary material relied upon by him. However, he failed to clarify the nature of the case sought to be made by him. He did not identify any claim which was appropriately made by summons in the Supreme Court, or show that any such claim had any prospects of success.
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.
19. I agree with the Registrar that the present summons cannot stand. I confirm the Registrar's order that the summons be dismissed. For more abundant caution I order that the "summons (amended)" filed on 5 October 2011 also be dismissed. I order Mr Wang to pay the defendant's costs of the application for review.”
On 21 August 2013, the applicant commenced proceedings in the Fair Work Division of this Court. The grounds of the application and the orders sought were so incomprehensibly drafted that it was impossible to understand what relief was sought and the basis upon which the applicant sought that relief. The final orders sought and the grounds identified in support of those orders are as follows:
“Final Orders Sought:
1. Seymour v Sainal (2006) arbitrator taken evidence refused disability established
2. S.151A(3)(6) 1987 Act Commission Registry failure must give permanent outside worker insert [?] in repeal, The Workplace Compensation Act 1997.
3. Dinkua v Lipscombe (2006) under employer contract with judicial and recovered reward as well as under award industrial Relation Act (Qld) ss.278,399
Grounds of Application:
1. Commission determination engagement to aggravation injury, all [illegible] are contraventions.
2. Commission held supreme order to dismiss and disclose Federal settlement cause outside.
3. The employer also is a Worker compensation solicitor, he from knowingly made false recklessly had 10 years, he identifies slip injury but 3 times refused pay recovered reward.
Interlocutory Orders Sought:
1. DPP v ESSO, Employer from knowingly made false 3 time refused pay recovered award pay 1.65 million time 25% is $404,500 enforce pay by TPC Act
2. Commission registry a) 7 day lodge Reply dismiss, b) no on foot dismiss c) hold d) hold supreme court order dismiss E) disclose Federal settlement $5000 x 4. Reopen my file
3. Commission correct all basic error, pay $55,000”
The originating application was accompanied by an affidavit attaching some 121 unpaginated annexures, several of which are double-sided, relating to the applicant’s evidence in prior proceedings in other jurisdictions. The affidavit makes no attempt to identify the relevance of the annexures. Nor does the affidavit refer to the annexures in terms.
On 22 October 2013, the applicant filed a further incomprehensible affidavit, sworn/affirmed by him on an unidentified date, and again attaching voluminous, unpaginated documents. The body of the affidavit was 11 pages long in single-spaced, small font.
On 5 November 2013, the applicant filed another affidavit sworn/affirmed 4 November 2013. That affidavit was not long and was headed ‘Order Sought.’ The substance and relevance was as incomprehensible as the other material already filed by the applicant.
On 8 November 2013, the applicant appeared before me at a first court date directions hearing. I endeavoured without success to explore with the applicant the nub of his complaint and the purpose and basis for this proceeding. On that occasion, the applicant was ordered to file and serve a fully particularised Statement of Claim by 6 December 2013. The applicant was further ordered not to file any other document without the leave of the Court. The applicant was provided with a copy of r.16 of the Federal Court Rules 2011 (Cth) in relation to the drafting of pleadings.
No document was filed by the applicant in accordance with those directions.
On 11 December 2013, the applicant again appeared at a directions hearing before me. The applicant was granted leave to file in Court a Notice of Discontinuance against the Workers’ Compensation Commission, which had hitherto been the second respondent in this proceeding.
On that occasion, the applicant was again ordered to file and serve a fully particularised Statement of Claim, in accordance with the Rules and r.16 of the Federal Court Rules 2011 (Cth), by 24 January 2014. The applicant confirmed that he had retained copies of the relevant rules given to him on the last occasion. I further ordered that in the event that the applicant failed to file a fully particularised Statement of Claim by 24 January 2014, the matter may be dismissed upon application by the respondent. The applicant was provided with the contact details of legal service providers headed in his own language.
On 24 January 2014, the applicant attempted to file an Application in a Case. On 6 February 2014, a Registrar of this Court wrote to the applicant informing him that in accordance with the Orders made by this Court on 11 December 2013, the Application in a Case could not be accepted for filing. The Application in a Case was returned to the applicant.
On 7 March 2014, the applicant again attempted to file an Application in a Case. The Registry of this Court again refused to accept the document for filing in accordance with the Orders made on 11 December 2013 and referred the applicant to those Orders.
On the same day, the applicant filed a document titled “Reply”. That document was well over 100 pages in length and appeared to attach many of the documents annexed to previous affidavits. The document was headed “Order Thought,” being a 15 page, single-spaced, small font incomprehensible document that in no way reflected a Reply as contemplated by the Rules.
On 20 March 2014, the parties appeared before me at a further directions hearing. As stated above, none of the documents filed by the applicant in any way complied with the Rules of the Court. None of the filed documents identified a proper juridical basis for any relief sought, and none identified the particular relief sought with any clarity or was in any way made referable to a juridical basis.
At this directions hearing, the Court again extended time to the applicant to file and serve a fully particularised Statement of Claim by 11 April 2014 in accordance with the Rules of the Court, and made an order that in the event that the applicant failed to comply with that order, the matter may be dismissed forthwith
On 11 April 2014, the applicant filed a document headed Statement of Claim. In no other respect does it comply with the Rules of the Court. It is a prolix, dense, incomprehensible and embarrassing document that appears to be a mixture of incoherent assertions and submissions.
On 16 April 2014, the respondent filed an Application in a Case seeking the following orders:
“1. Order pursuant to Rule 13.03B that the proceedings be dismissed to the whole of the relief claimed by the Applicant.
2. In alternative, Order pursuant to Rule 13.10 that the proceedings be dismissed as to the whole of the relief claimed by the Applicant.
3. In the alternative, order pursuant to the inherent jurisdiction of the Court that the proceedings be dismissed.
4. Order that the Applicant pay the Respondent’s costs of proceedings.”
The application was supported by the affidavit of Mr Camille Dezarnaulds, sworn and filed on 16 April 2014. That affidavit is as follows:
“1. I am the solicitor for the Respondent.
2. I make this affidavit in relation to an application by the Respondent to have the proceedings dismissed under Rule 13.03B or Rule 13.10 or pursuant to the inherent jurisdiction of the Court.
3. I refer to various Statements of Claim filed by the Applicant in these proceedings, including the most recent Statement of Claim filed on 11 April 2014.
4. I refer to Court Orders made 20 March 2014. A true copy of the minute of these orders is annexed hereto and marked with the letter “A”.
5. on about 11 April 2014, after the abovementioned Court Orders were made, I received service from the Applicant of the abovementioned Statement of Claim filed on 11 April 2014. I take it that this Statement of Claim is the Applicant’s “fully particularised statement of claim” as required by the abovementioned Orders.
6. I respectfully submit that the Statement of Claim filed on 11 April 2014 does not comply with the Rules of Court, nor with the Court orders of 20 March 2014.
7. I refer to the associated affidavit of Robert Murphy filed 21 February 2014, and the copies of court judgments annexed thereto. The applicant has filed a number of applications in various jurisdictions concerning related subject matter to the present subject matter and on each occasion the court has rejected his application and made orders for costs against him.
8. I respectfully submit that any attempt by the Applicant to litigate against the respondent in respect of injuries allegedly received by him at work, is prevented by estoppel and res judicata, and consequently is
a. without any reasonable prospect of success, and
b. frivolous or vexatious, and
c. an abuse of process of court.”
On 24 April 2014, the applicant filed an affidavit, sworn by him on 22 April 2014. It is not clear what the purpose of the affidavit is. Again the content is embarrassing in that it does not disclose with any clarity whatsoever the substance of the affidavit or its relevance. I understand from what the applicant said at the directions hearing on 29 April 2014, that the substance of the assertion by the applicant that the respondent had not prepared the respondent’s evidence in accordance with the correct rules of Court. However, the relevance of the substance of that complaint was not in any way clarified by the applicant and was not assisted by his somewhat erratic demeanour in Court.
The Court has a responsibility to the overriding interests of justice to both parties. The opportunities that the applicant has been given, in my view, are more than ample to enable him to obtain legal advice and to otherwise comply with the orders of the Court in pleading his case.
Section 42 of the Federal Circuit Court Act 1999 (Cth) requires the Court to endeavour to ensure that proceedings are not protracted. Moreover, it is well established that cases need to be dealt with expeditiously if they are to be dealt with justly (see: Bi v Mourad [2010] NSWSC 17 at [47] per Allsop J)
I find that the applicant’s conduct demonstrates an unwillingness to cooperate with the Court and the respondent. The applicant’s non-compliance of directions made by the Court causes unnecessary delay, expense and prejudice to the respondent. Such conduct is unjustifiably oppressive to the respondent (see Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at 452; Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at [36]).
In Rogers v The Queen (1994) 181 CLR 251 at [53], McHugh J concluded that, although the categories of abuse of process are not closed, most cases of abuse fall into one of the three following categories:
"(1) the court's procedures are invoked for an illegitimate purpose;
(2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or
(3) the use of the court's procedures would bring the administration of justice into disrepute."
In Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189 at [24], Sully J said as follows:
“I say again, and say it with emphasis, it is time that all litigants understood that it is no part of the judicial duty to accept an undifferentiated mass of documentary material as though it were a matter of course that the Judge will simply wade through it hoping that, after hours or, in a case of the present kind, days, of reading at large, he will somehow manage to identify correctly what the parties thought they were putting before him in the first place.”
In Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd (2009) 239 CLR 75, French CJ, Gummow, Hayne and Crennan JJ at [28] made clear that abuse of process extends to proceeding that are “seriously and unfairly burdensome, prejudicial or damaging.” I am satisfied that the manner in which the applicant has conducted himself in this proceeding is seriously and unfairly burdensome and prejudicial to the respondent.
Further, the Court possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness (see: Jago v District Court of New South Wales (1989) 168 CLR 23 at [23] per Mason CJ). There is a broad public interest in the efficient allocation of the Court’s resources amongst all suitors and it is a consideration to which I have regard in considering the overall interests of justice. It is well recognised that the resolution of disputes serves the public as a whole and not merely the parties to a proceeding (see: Aon Risk Services v Australian National University [2009] HCA 27 at [113]; Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490 at [26] - [27] per Pembroke J).
I have no confidence that the present matter, if it was to proceed to final hearing, would be properly pleaded in the way I have sought to direct in the past such that the respondent and the Court would understand the applicant’s claims, and the juridical basis for those claims, and the relief that the applicant seeks. This Court does not have the resources to indulge such an applicant and, indeed, in my view, to indulge such conduct and behaviour would be antithetical to the need to maintain public confidence in the judicial system at large.
The applicant has failed to comply with the orders of this Court. I am satisfied that to allow the applicant’s proceeding to continue as it presently stands is frivolous, vexatious, and an abuse of the Court’s process.
There has to be an end to the opportunities given to the applicant to identify a case in accordance with the Rules. The opportunities provided by the Court have been ignored by the applicant. As stated above, the applicant was provided with the contact details of legal services providers and translation and interpreting service in documents headed in his own language and encouraged at every direction hearing to seek legal advice.
In my view, to allow the continuation of this proceeding against the respondent is unfair and unjustifiably oppressive and constitutes an abuse of process. Its continuation is likely to bring the administration of justice into disrepute among right-thinking people (see: Walton v Gardiner (1993) 177 CLR 378 at 393).
The orders that I propose to make have been considered in the light of the knowledge that the power to dismiss cases summarily ought to be very sparingly exercised and only in exceptional cases (see: Sea Culture International v Scoles [1991] FCA 523 at [12] per French J). It is well recognised that what amounts to an abuse of Court process is insusceptible of a formulation comprising closed categories (see: Batistatos v Roads and Traffic Authority of New South Wales 226 CLR 256 at [265] per Gleeson CJ, Gummow, Hayne and Crennan JJ).
In the circumstances, I am satisfied that the applicant is in default, pursuant to r.13.03A(1)(a) of the Rules. The orders sought by the respondent are appropriate on all the bases identified by the respondent`.
Accordingly, the proceeding commenced by way of application on 21 August 2013 should be dismissed with costs, pursuant to r.13.03B(1), r.13.10(b) and (c) of the Rules and pursuant to the inherent jurisdiction of the Court to regulate its processes in the interests of justice.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 14 May 2014
7
15
0