Wang v Botany View Hotel (No 4)

[2019] NSWSC 1323

Supreme Court

New South Wales

Medium Neutral Citation:	Wang v Botany View Hotel (No 4) [2019] NSWSC 1323
Hearing dates:	25 September 2019
Decision date:	01 October 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [21]
Catchwords:	CIVIL PROCEDURE – parties – vexatious litigants –variation of orders made under Vexatious Proceedings Act 2008 (NSW) – defining category of cases the subject of proceedings not practical in particular circumstances of case – blanket order made   CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – no jurisdiction – proceedings dismissed
Legislation Cited:	District Court Act 1973 (NSW), s 127 Local Court Act 2007 (NSW), ss 39, 40 Supreme Court Act 1970 (NSW), ss 48, 49, 69 Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Vexatious Proceedings Act 2008 (NSW), ss 8, 9
Cases Cited:	Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13 Geftlic v Merhi [2010] NSWCA 256 Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 Vaughan trading as Johnston Vaughan v Wang [2017] NSWSC 1791 Viavattene v Attorney General (NSW) [2015] NSWCA 44
Category:	Procedural and other rulings
Parties:	Attorney General for New South Wales (Applicant on the motion) Yun Fu Wang (Plaintiff and Respondent on the motion) Botany View Hotel (Defendant and Respondent on the motion) Supreme Court of New South Wales (Defendant)
Representation:	Counsel: D Birch (Applicant on the motion) G S Guest, solicitor (Defendant and Respondent on the motion) Plaintiff and respondent on the motion in person   Solicitors: Crown Solicitor’s Office (Applicant on the motion) Sparke Helmore (Defendant and Respondent on the motion)
File Number(s):	2019/169660

Judgment

Introduction

1. By amended notice of motion filed on 24 July 2017, the Attorney General for the State of New South Wales (the Attorney) seeks orders, including that he be joined as a party to the proceedings; that the proceedings be summarily dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4; and that the vexatious proceedings order made by McCallum J on 19 December 2017 (the VPO) be varied to prohibit Mr Wang (the plaintiff) from commencing any proceedings in New South Wales without leave of this Court.

2. At the hearing of the application on 25 September 2019, Mr Wang appeared on his own behalf, assisted by a Mandarin interpreter. Mr Birch appeared on behalf of the Attorney. Mr Guest appeared on behalf of Botany View Hotel, a respondent to the motion. He indicated that his client consented to the orders sought by the Attorney on the motion.

3. At the commencement of the hearing of the notice of motion, I heard argument on the issue of joinder and made orders and gave reasons separately for joining the Attorney to these proceedings. Accordingly, the outstanding questions are whether the proceedings ought be summarily dismissed; and whether the VPO ought be varied.

4. In order to address the application for these orders, it is necessary to give some factual background to the present proceedings and to the basis on which McCallum J made the VPO against Mr Wang.

Factual background

The genesis of the present proceedings

5. On 5 November 2018 Mr Wang commenced proceedings by statement of claim in the Local Court against Botany View Hotel and the Supreme Court of New South Wales. The allegations made in those proceedings were, in so far as they can be discerned from the statement of claim and annexed documents, made against judicial officers. An amended statement of claim was filed on 9 November 2018 which, of present relevance, removed Botany View Hotel as a defendant, leaving the Supreme Court as the sole defendant. The proceedings were allocated to the Small Claims Division of the Local Court as Mr Wang claimed an amount of $9,390.

6. By notice of motion filed on 7 December 2018, the Supreme Court sought summary dismissal of the proceedings. This led to the proceedings being transferred from the Small Claims Division to the General Division of the Local Court as the Small Claims Division did not have jurisdiction to grant summary dismissal. On 23 January 2019 the Attorney sought to intervene in the proceedings to apply for summary dismissal in respect of Mr Wang’s claim against the Supreme Court. On 24 January 2019, the Local Court (in its General Division) granted leave to the Attorney to intervene and summarily dismissed the proceedings.

7. On 21 February 2019, Mr Wang filed a summons in the District Court in which he purported to appeal against the order for summary dismissal made by the Local Court. The Supreme Court and Botany View Hotel were both named as defendants. On 19 March 2019, Mr Wang filed an amended summons in the District Court. On 1 April 2019 Judicial Registrar Howard dismissed the summons on the basis that the District Court lacked jurisdiction to hear the appeal since the only right of appeal from the Local Court to the District Court arose under s 39(2) of the Local Court Act 2007 (NSW), which was confined to appeals from the Local Court sitting in its Small Claims Division.

8. By notice of appeal filed on 30 May 2019, Mr Wang purported to appeal to the Court of Appeal against the decision of Judicial Registrar Howard. The Botany View Hotel and the Supreme Court were named as respondents but not the Attorney, although he had been joined to the Local Court and District Court proceedings. On 25 June 2019 the Attorney filed a notice of motion seeking leave to be joined to the proceedings in this Court. In the course of the hearing on 26 June 2019, the Registrar of the Court of Appeal indicated to Mr Wang, without deciding the question, that his appeal was incompetent as it did not fall within s 127 of the District Court Act 1973 (NSW), but that he may wish to consider seeking leave to appeal to the Supreme Court from the Local Court under s 40 of the Local Court Act or commencing proceedings under s 69 of the Supreme Court Act 1970 (NSW) to challenge the decision of the Judicial Registrar of the District Court. On 26 June 2019 the Registrar of the Court of Appeal ordered that, by reason of ss 48 and 49 of the Supreme Court Act, the proceedings be transferred to the Common Law Division of this Court.

9. Mr Wang did not take either of the courses indicated as being legally open to him. He has continued to press his appeal to this Court against the decision of the Judicial Registrar of the District Court to dismiss his appeal to that court as incompetent.

Other proceedings commenced by Mr Wang

10. The submissions made on behalf of the Attorney included a table of other proceedings commenced by Mr Wang (not including the proceedings in the Local and District Courts or this Court referred to above), together with references in the decisions to findings and observations made by the relevant decision makers as to the attributes of the proceedings, including incomprehensibility of reasons, reagitating matters already litigated, non-compliance with procedural requirements and whether there were grounds for summary dismissal. I have found the table to be a helpful summary of the various proceedings, the relevant documents associated with which are exhibited to the affidavit of Claire-Louise Langford affirmed 24 July 2019 which was read in support of the application and marked CL-2. I adopt the table, which is reproduced in the Schedule to these reasons.

11. The proceedings which are set out in the table fall into two categories: first, proceedings brought against Johnston Vaughan, Mr Wang’s former solicitors (items 9, 12, 13, 14 and 15); and, secondly, proceedings brought against the Botany View Hotel or a party associated with that hotel (items 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 16, 17 and 18). It is sufficient to note that Mr Wang brought a workers compensation claim against the Botany View Hotel for an alleged work-related injury in 2000 which was rejected on the ground that his employment had neither caused nor contributed to the injury. Johnston Vaughan acted as his solicitors and were themselves sued as a consequence. These matters of historical fact form the basis for all of the proceedings listed in the table.

12. In 2017 Mr Vaughan trading as Johnston Vaughan commenced proceedings in this Court for a vexatious proceedings order against Mr Wang under the Vexatious Proceedings Act 2008 (NSW). The firm initially sought a blanket order against Mr Wang which, if granted, would have had the effect of staying any proceedings in New South Wales already commenced and prohibiting him from commencing any proceedings in New South Wales or throughout the Commonwealth. However, Mr Vaughan, in submissions to McCallum J, confined his application to proceedings commenced or to be commenced against himself and other persons associated with Johnston Vaughan. McCallum J made the orders ultimately sought by Mr Vaughan against Mr Wang: Vaughan trading as Johnston Vaughan v Wang [2017] NSWSC 1791.

Submissions

13. The reasons set out below largely reflect the submissions made by Mr Birch on behalf of the Attorney. For this reason it is not necessary to refer to them further except to record that Mr Birch informed me that he had been able to locate only one decision of this Court in which an order under the Vexatious Proceedings Act had been varied pursuant to s 9: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13. The effect of the order under s 9 which was made by Fagan J in that case was to remove the limiting words “in any court” in the order as made and add the words “in New South Wales” to confine the limitation to this jurisdiction. The effect of the removal of the words “in any court” was to extend the prohibition to tribunals, such as the Civil and Administrative Tribunal.

14. Mr Wang made submissions which did not address the Attorney’s application in any material way. He repeated on more than one occasion that it was not appropriate that the Attorney be present because the dispute involved such a small sum of money. He complained that the documents relied on by the Attorney had not been sealed and that therefore they were illegal and that some unidentified person ought be arrested and put in gaol. Mr Wang’s written submissions did not shed any more light on the matters in issue or the submissions which he wanted to make in opposition to the orders sought by the Attorney. I infer that Mr Wang is, for whatever reason, unable to understand either the gravamen of the proceedings he has brought; the basis for the Attorney’s application; or the questions asked of him in the course of the proceedings. I am satisfied that his evident lack of comprehension does not derive from language difficulties since he had the assistance of a qualified interpreter for the hearing and asserted that he could understand English. Although he spoke to me at times in English, I encouraged him to use the services of the interpreter in order that I could better understand what he was saying.

Consideration

Application for summary dismissal

15. The proceedings brought by Mr Wang in this Court are misconceived in a number of respects. Of these, the most fundamental is that they do not fall within s 127 of the District Court Act since the orders made by Judicial Registrar Howard were not made “in an action”: Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 and Geftlic v Merhi [2010] NSWCA 256 at [7]-[11] (Sackville AJA, Handley AJA agreeing). Accordingly, this Court has no jurisdiction to entertain the appeal. In these circumstances the proceedings ought be summarily dismissed.

Whether the VPO ought be varied

16. As referred to above, the VPO made by McCallum J was worded in accordance with the submissions made by Mr Vaughan and was sufficient to protect the interests of Mr Vaughan and his firm. The Attorney, by reason of his office, has a wider interest in litigation generally and in the proper administration of justice in this State than does any individual litigant. Mr Birch, who appeared on behalf of the Attorney, submitted that although the Court of Appeal, in decisions such as Potier v Attorney General in and for the State of New South Wales (2015) 89 NSWLR 284; [2015] NSWCA 129 at [17]-[19] and [127]-[129] and Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [79] (Leeming JA), has cautioned against blanket orders, a blanket order was appropriate in the present case. He contended that were I, for example, to vary the VPO to include proceedings against those associated with the Botany View Hotel, this would not remedy the problem created by Mr Wang’s propensity to litigate without foundation. He pointed to the current proceedings, which name this Court as a party, and submitted that if this Court were the new target for Mr Wang’s litigious tendencies, this could produce new proceedings against judicial officers, registrars and the like. In essence, he submitted that any order short of a blanket order would put the registry staff of the courts of New South Wales in a position where they would have to make a judgment as to whether particular proceedings fell within the “carve-out” in such an order. Mr Birch contended that the making of a “carve-out” order which nominated particular parties against whom or which the institution of proceedings was prohibited, or particular subject matters, would potentially create more problems than it solved. He relied on the difficulty of understanding Mr Wang’s written documents (pleadings, evidence and submissions) and his oral submissions, even where, as at the hearing before me on 25 September 2019, a qualified interpreter was available to translate from Mandarin to English and from English into Mandarin to assist him.

17. I accept Mr Birch’s submission that it is not necessary for me, when considering whether to vary the VPO under s 9 of the Vexatious Proceedings Act, to satisfy myself of the matters in s 8 of the Act, which McCallum J was required to consider before making the VPO. It is, however, necessary for the Attorney, as applicant, to demonstrate why the VPO ought be varied and, to that end, to show that the VPO as made is insufficient to fulfil the purpose for which such orders are made. It is important to record that her Honour did not reject an application for a wider order than the one which was made; rather, her Honour made the order as ultimately sought by Mr Vaughan, whose interest was a confined one.

18. It is, as Leeming JA said at [79] in Viavattene v Attorney General (NSW), desirable to consider whether provision should be made carving out certain categories of proceedings which may be instituted without leave, as was done in Potier v Attorney General in and for the State of New South Wales. For the reasons advanced by Mr Birch in his submissions, which I have summarised above, I am persuaded that, in the present case, it is neither practical, nor consistent with the objects of the Vexatious Proceedings Act, to define a category of cases which are the subject of the prohibition or which are exempt from the prohibition. Either course would be problematic because the underlying cause of the multitude of proceedings would appear to be that Mr Wang misapprehends his legal rights and remedies and is unable to formulate his grievances in a way which could entitle him to legal redress.

19. I am, accordingly, persuaded that, in the particular circumstances of the present case, it is appropriate to make a blanket order as sought.

20. I note that no order as to costs is sought. Accordingly, no order as to costs is made.

Orders

21. For the reasons given above, I make the following orders:

1. The proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

2. Pursuant to s 9(1) of the Vexatious Proceedings Act 2008 (NSW), vary order (2) made by McCallum J on 19 December 2017 in proceedings 2017/71166 by removing the words “naming Michael Vaughan, Amil Dlakic or Johnston Vaughan as a party” and adding the words “in New South Wales, without leave of the Supreme Court of New South Wales” so that the order, as amended reads:

“That Mr Wang be prohibited from instituting proceedings in New South Wales without leave of the Supreme Court of New South Wales.”

Schedule A (17.3 KB, docx)

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Decision last updated: 01 October 2019