Wang v Purpose Pty Ltd t/as Botany View Hotel

[2021] NSWCA 10

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Wang v Purpose Pty Ltd t/as Botany View Hotel [2021] NSWCA 10

Hearing dates:

11 February 2021

Date of orders:

11 February 2021

Decision date:

17 February 2021

Before:

Macfarlan JA;
Meagher JA;
Payne JA

Decision:

(1)   Extension of time for the filing of the application for leave to appeal refused.

(2)   Application for leave to appeal dismissed.

(3)   Mr Wang to pay the costs of the two respondents.

Catchwords:

CIVIL PROCEDURE – parties – vexatious litigants – limited vexatious proceedings order in relation to applicant – primary judge extended vexatious proceedings order – Vexatious Proceedings Act ss 8, 9 – application for leave to appeal filed late – no sensible argument advanced nor any explanation for lateness

Legislation Cited:

District Court Act 1973 (NSW), s 127

Local Court Act 2007 (NSW), s 39

Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46

Category:

Principal judgment

Parties:

Mr Yun Fu Wang (Applicant)
Purpose Pty Ltd t/as Botany View Hotel (First Respondent)
Attorney General of NSW (Second Respondent)

Representation:

Counsel:
Self-represented Applicant
S McMahon (First Respondent)
D Birch (Second Respondent)

Solicitors:
Sparke Helmore Lawyers (First Respondent)
Crown Solicitor for NSW (Second Respondent)

File Number(s):

2020/244422

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 1323

Date of Decision:

01 October 2019

Before:

Adamson J

File Number(s):

2019/169660

Judgment

1. THE COURT: On 17 August 2020 Mr Yun Fu Wang, the applicant, filed a summons seeking leave to appeal from a judgment of Adamson J of the Common Law Division delivered on 1 October 2019 ([2019] NSWSC 1323). On 11 February 2021, we made orders refusing an extension of time for filing the summons, dismissing the summons, reserving our reasons for judgment and requiring Mr Wang to pay the respondents’ costs. These are our reasons for making those orders.

2. By her judgment, Adamson J ordered that the proceedings before her be summarily dismissed and that a limited vexatious proceedings order made by McCallum J on 19 December 2017 (see Vaughan t/as Johnston Vaughan v Wang [2017] NSWSC 1791) be extended to prohibiting Mr Wang from commencing any proceedings in New South Wales without the leave of the Supreme Court.

3. The genesis of the multiple court proceedings commenced by Mr Wang and referred to in the judgments of McCallum J and Adamson J was an injury he suffered in August 2000 whilst employed at the Botany View Hotel, which was operated by the first respondent. Mr Wang’s workers compensation claim was refused on the basis that his injuries did not arise out of any work-related incident. In consequence, he pursued many proceedings, referred to in the judgment of McCallum J, to attempt to reverse that result. As well, he brought multiple proceedings against Mr Michael John Vaughan and Mr Amil Dlakic (each of whom traded as Johnston Vaughan at different points in time), solicitors who acted for Mr Wang for a time in relation to his workers compensation claim.

4. In her judgment of 19 December 2017, McCallum J stated that she was satisfied that “all of the substantive proceedings instituted against persons associated with Johnston Vaughan have been instituted without reasonable ground and on that basis are vexatious within the meaning of the [Vexatious Proceedings Act 2008 (NSW)]” (at [27]). That finding led her Honour to make an order under that Act that “Mr Wang be prohibited from instituting proceedings naming Michael Vaughan, Amil Dlakic or Johnston Vaughan as a party”.

5. In her judgment, Adamson J described the inception of the proceedings that came before her as follows:

“[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. Her Honour then noted that the proceedings were transferred to the General Division of the Local Court which granted leave to the Attorney General to intervene and summarily dismissed the proceedings. A purported appeal by Mr Wang to the District Court was dismissed by Judicial Registrar Howard of that Court because there was no right of appeal available from the General Division of the Local Court to the District Court (compare s 39(2) of the Local Court Act 2007 (NSW) in relation to the Small Claims Division). A purported appeal from that decision to the Court of Appeal was transferred by the Court of Appeal registrar to the Common Law Division of the Court. Adamson J, sitting in that Division, then summarily dismissed it on the basis that Mr Wang had no right of appeal from the District Court order to the Supreme Court because it was not made “in an action”, but on a purported statutory appeal (see s 127 of the District Court Act 1973 (NSW) and Muldoon v Church of England Children’s Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46).

7. Her Honour then adopted, and attached to her judgment, a table prepared on behalf of the Attorney General which described a number of other proceedings commenced by Mr Wang and, in her Honour’s words, gave “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” (at [10]). The proceedings referred to in the table related both to Mr Wang’s complaints against Johnston Vaughan and to those in relation to the Botany View Hotel.

8. Her Honour concluded that it was appropriate, on the application of the Attorney General, to extend the order made by McCallum J under the Vexatious Proceedings Act to preclude Mr Wang commencing any proceedings in New South Wales without leave of the Supreme Court, that is, to impose a blanket ban. Her Honour considered that it was “neither practical nor consistent with the objects of the Vexatious Proceedings Act, to define a category of cases which [is] the subject of the prohibition or which [is] exempt from the prohibition” (at [18]). Her Honour gave detailed reasons for that view including that, by reason of the nature of the litigation Mr Wang had commenced and pursued in the past, registry staff would, if no blanket ban were imposed, be placed in the difficult, if not impossible, position of having to make a judgment call as to whether particular originating processes did or did not fall within the ambit of the prohibition.

9. In this Court, although he spoke for more than 20 minutes Mr Wang did not advance any sensible explanation for the filing of his application for leave to appeal long out of time, nor any sensible argument identifying an error on the part of Adamson J. Despite being able to understand most of his English in the absence of an interpreter, Mr Wang’s oral submissions were almost entirely unintelligible. Having regard also to the equally incomprehensible written material on which he relies, we infer, as did Adamson J, that Mr Wang is unable to understand either the nature of the proceedings he has brought, or the matters to which this Court must have regard in dealing with his application. There being no apparent error in her Honour’s reasoning and no excuse proffered for the delay in seeking leave, the Court concluded that it was appropriate to make the orders referred to in [1] above.

10. In conclusion we mention one further matter. Adamson J took the view that in considering whether the limited vexatious proceedings order made by McCallum J should be varied, it was unnecessary for her Honour to satisfy herself of the matters identified in s 8 of the Vexatious Proceedings Act as to which it was necessary for McCallum J to satisfy herself before making the limited order. It is unnecessary for us to express a view on that question as it appears that in any case Adamson J was satisfied that Mr Wang has frequently instituted vexatious proceedings in Australia (at [18]), as is required by s 8(1) of the Vexatious Proceedings Act. In any event, this Court was not given any reason to doubt the correctness of McCallum J’s judgment.

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Decision last updated: 17 February 2021