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Wang v Botany View Hotel (No 4)

Wang v Botany View Hotel (No 4)

Case [2019] NSWSC 1323 1 October 2019

Vexatious Proceedings

Jurisdiction

Summary Judgment

Civil Litigation & Procedure

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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

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.
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.
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.
In…

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 (No 4)

Details

AGLC: Wang v Botany View Hotel (No 4) [2019] NSWSC 1323
Case: [2019] NSWSC 1323
Decision Date: 01 October 2019

CaseChat Overview and Summary

The parties in Wang v Botany View Hotel (No 4) were Wang, the plaintiff, and the Botany View Hotel, the defendant. The dispute arose out of Wang's persistent litigation against the hotel, which led to multiple proceedings. The court was required to address the issue of whether Wang could be declared a vexatious litigant under the Vexatious Proceedings Act 2008 (NSW) and to determine the appropriate orders to be made in such a case. The case was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether it was practical to define the category of cases that were the subject of Wang's proceedings and whether a blanket order could be made to prevent Wang from initiating further litigation against the hotel without leave of the court. The court had to consider the implications of declaring Wang a vexatious litigant and the potential impact on Wang's right to access the courts. The court also had to decide whether the proceedings were frivolous or vexatious and whether it had jurisdiction to dismiss the proceedings.

The court found that defining the category of cases that were the subject of Wang's proceedings was not practical in the particular circumstances of the case. Therefore, the court made a blanket order that Wang could not initiate further litigation against the hotel without leave of the court. The court also found that the proceedings were frivolous or vexatious and dismissed them. The court held that it had jurisdiction to make such orders and that doing so was necessary to prevent an abuse of the court's process.

The court made an order declaring Wang a vexatious litigant and prohibiting him from initiating further proceedings against the hotel without leave of the court. The court also dismissed the current proceedings as frivolous or vexatious. The court held that it had jurisdiction to make such orders and that doing so was necessary to prevent an abuse of the court's process.

Orders