Wang v State of New South Wales
[2014] NSWSC 909
•08 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: Wang v State of New South Wales [2014] NSWSC 909 Hearing dates: 4 July 2014 Decision date: 08 July 2014 Before: Harrison J Decision: 1. Order that Yan Liu be removed as the plaintiff's tutor pursuant to UCPR 7.18(1)(b).
2. Order that, subject to compliance with UCPR 7.16, Yu Liu be appointed as the plaintiff's tutor pursuant to UCPR 7.18(1)(a).
3. Order that Yu Liu take no further or other step to carry on the proceedings in his capacity as the plaintiff's tutor until a notice of appearance by a solicitor appointed to act for him in that capacity in these proceedings has been filed in the Registry and served upon the defendant.
4. Otherwise stay the proceedings pursuant to s 67 of the Civil Procedure Act 2005 pending compliance with order 3 or until further order.
5. Grant liberty to apply on 7 days' notice to the other party and to the Court.
Catchwords: TUTOR - removal and appointment of tutor - UCPR 7.14 - whether in the interests of justice for tutor to carry on proceedings without a solicitor Legislation Cited: Civil Procedure Act 2005
Crimes Act 1900
Freedom of Information Act 1989
Police Act 1990
Uniform Civil Procedure Rules 2005Cases Cited: AA Shi Pty Ltd v Avbar Pty Ltd (No 4) [2010] FCA 878
Abse v Smith [1986] QB 536
Bay Marine Pty Ltd v Clayton County Properties Pty Ltd (No 2) (1986) 8 NSWLR 104
Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149
Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200
Hubbard Association of Scientologists International v Anderson [1972] VR 340
Li Wang v State of New South Wales [2014] NSWSC 661
Paragon Finance PLC v Noueiri [2001] 1 WLR 2357
Re G J Mannix Ltd [1984] 1 NZLR 309
Scotts Head Developments Pty Ltd v Pallasar Pty Ltd (NSWCA, 6 September 1994, unreported)
Silkearl Pty Limited v Ainsworth Game Technology Ltd [2006] FCA 949
South v Northern Sydney Area Health Service [2003] NSWSC 479
Wang v State of New South Wales [2010] NSWCA 209
Wang v State of New South Wales [2011] NSWSC 609
Wang v State of New South Wales [2011] NSWSC 882
Wang & Liu v State of New South Wales [2011] NSWCA 321
Wang v State of New South Wales [2013] NSWSC 386Category: Procedural and other rulings Parties: Li Wang (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
C Hodgson (Defendant)
Solicitors:
Crown Solicitor (Defendant)
File Number(s): 13/128929 Publication restriction: Nil
Judgment
HIS HONOUR: These and related proceedings have a long and difficult history: see, for example Wang v State of New South Wales [2010] NSWCA 209; Wang v State of New South Wales [2011] NSWSC 609; Wang v State of New South Wales [2011] NSWSC 882; Wang & Liu v State of New South Wales [2011] NSWCA 321; Wang v State of New South Wales [2013] NSWSC 386; Li Wang v State of New South Wales [2014] NSWSC 661. The matters discussed by Schmidt J, Garling J and Hamill J in the 2011, 2013 and 2014 decisions respectively are useful references for present purposes.
Factual background
The current proceedings represent the fourth attempt by the plaintiff to litigate a claim since the events of 10 January 2004 when the plaintiff, who is the wife of Mr Yu Liu, was apparently involved in an altercation with her landlord in which she alleges that he assaulted her. A report of the alleged assault was made to the Parramatta Police and Senior Constable Kennedy became the investigating officer and the officer in charge of the prosecution case against the landlord.
The plaintiff's allegation included a claim that S/C Kennedy did not attend the scene of the alleged assault as he was required to, that he treated the plaintiff and Mr Liu disrespectfully when they attended Parramatta Police Station on 12 and 13 January 2004 and that he deceived the plaintiff into signing a handwritten statement in his police notebook to the effect that she did not wish to pursue charges against the landlord.
Ultimately criminal charges were brought against the landlord, which came before the Local Court on 11 June 2004. The Court dismissed the proceedings on that day because the plaintiff failed to appear in her capacity as a witness. The Court dismissed the proceedings in her absence upon information from the police prosecutor, on instructions from S/C Kennedy that the plaintiff had been served with a subpoena to give evidence. The service details on the subpoena to give evidence to the plaintiff had been completed by S/C Kennedy, stating that the plaintiff had been personally served on 23 April 2004. However, the plaintiff alleges that she was never served with the subpoena and she made a complaint to NSW Police in relation to S/C Kennedy's conduct.
That complaint was investigated and the matter was referred to Police Legal Services, and ultimately to the Office of the Director of Public Prosecutions, for advice as to whether S/C Kennedy should be charged under the Crimes Act 1900 with perverting the course of justice. The Director of Public Prosecutions ultimately directed that there was insufficient evidence to proceed with any charge against S/C Kennedy. However, disciplinary action against him was considered to be appropriate.
In the meantime, notice had already been given by the Commissioner of NSW Police on 8 September 2005, pursuant to s 181D(3)(a) of the Police Act 1990, that he had lost confidence in the suitability of S/C Kennedy to remain a police officer, having regard to his competence, integrity, performance or conduct. Subsequently, S/C Kennedy was suspended without pay, effective from 30 January 2006.
By letter dated 8 February 2006 from S/C Kennedy to the Commissioner of NSW Police, he tendered his resignation effective from 26 February 2006. That resignation was accepted, effective from 15 February 2006.
The plaintiff and Mr Liu were, and are, dissatisfied with the result of the internal disciplinary investigation.
Procedural Background in relation to earlier Supreme Court Proceedings
The plaintiff and Mr Liu filed a statement of claim in the first Supreme Court proceedings on 29 December 2008. They did not retain solicitors and Mr Liu appeared for them. The defendant filed a defence in those proceedings on 20 March 2009. It also filed a notice of motion on 10 March 2009 seeking orders that the proceedings be dismissed or alternatively that the statement of claim be struck out. That notice of motion, together with notices of motion filed by the plaintiff and Mr Liu, came before R S Hulme J in the Common Law Division on 2 July 2009. His Honour held that neither the original statement of claim, nor the proposed amendment, identified a cause of action known to law for which damages were available. His Honour ordered that the statement of claim be dismissed and that the plaintiff and Mr Liu pay the defendant's costs.
The plaintiff and Mr Liu filed a summons seeking leave to appeal from his Honour's decision and such leave was granted by the Court of Appeal on 14 October 2009.
The Court of Appeal heard the appeal on 10 August 2010. At that time the plaintiff and Mr Liu proffered a further proposed amendment to the statement of claim dated 9 August 2010. The Court of Appeal gave judgment on 24 August 2010.
In addition to allegations concerning the misconduct of S/C Kennedy, the proposed amended statement of claim raised allegations related to the misconduct of other police officers including police prosecutor Ian Casha, Commander Buckley, Inspectors Melton and Krawczyk, as well as Commanders Freudenstein, Beresford and McCarthy. The police prosecutor was involved in the hearing of the assault claim against the landlord and the other police officers were involved, in varying roles, in relation to the internal police investigation of S/C Kennedy. The statement of claim also brought a claim of misconduct directly against Mr Cowdery, the Director of Public Prosecutions, another police officer Searson, whose involvement was to provide documents under the Freedom of Information Act 1989 against various lawyers for the defendant who had acted either in the original proceedings or the Court of Appeal proceedings. The amended statement of claim also raised allegations of misconduct against Court of Appeal Registrars Schell and Rizynyczok.
The Court of Appeal held that R S Hulme J was entitled to find that the pleading failed to identify a reasonable cause of action in negligence or for breach of statutory duty. However, the Court of Appeal held that it was not appropriate to treat the pleading as if it was limited to such claims and that it may have included a claim for an intentional tort. As a result, the Court of Appeal gave the plaintiff leave to re-plead limited to the conduct of S/C Kennedy. It specifically excluded the making of any claim by Mr Liu or claims by the plaintiff in relation to the other named police officers, the Director of Public Prosecutions and claims in respect of the present proceedings, meaning the claims raised in relation to the various lawyers who had acted for the defendant and the Court of Appeal Registrars.
In relation to deficiencies in the pleading, the Court of Appeal specifically noted at [27]:
"that ... the approach which the legal representatives of the State have taken to the civil proceedings in this Court appears to have been both reasonable and sensible and to conform to its obligations as a model litigant. As with any other litigant, the State is entitled to resist the undue expenditure of resources in response to what may seem to it to be hopeless litigation."
The Court of Appeal also identified significant deficiencies in the pleadings, and in particular, the inappropriateness of a number of the claims. It noted the difficulty of pleading an intentional tort claim, such as that which the plaintiff may wish to plead, and recommended that the plaintiff obtain legal assistance for that purpose. The Court of Appeal referred her to "the Registrar for referral to a barrister having experience in relation to claims in tort against public authorities, on the Pro Bono Panel, for assistance in drafting a Statement of Claim".
The plaintiff and Mr Liu unsuccessfully sought special leave to appeal from the decision of the Court of Appeal to the High Court of Australia.
After the High Court published its judgment on 11 November 2010, there was correspondence between the plaintiff and Mr Liu, or Mr Liu, and the defendant's solicitors in relation to a possible amendment of the statement of claim in the first Supreme Court proceedings. It appears not to be in dispute that the plaintiff and Mr Liu did not seek legal advice in relation to the amendment.
The plaintiff and Mr Liu then filed a notice of discontinuance on 6 December 2010 in relation to the first Supreme Court proceedings and filed a statement of claim in the second Supreme Court proceedings on 22 December 2010. It is apparent from an examination of that statement of claim that those proceedings were brought contrary to the orders of the Court of Appeal and involved a claim by Mr Liu and claims by the plaintiff against police officers other than S/C Kennedy. Moreover, the claim in relation to S/C Kennedy was not re-pleaded and remained in essentially the same deficient form of the proposed amended statement of claim dated 9 August 2010.
The defendant filed a notice of motion on 17 January 2011 seeking orders that the proceedings be dismissed pursuant to UCPR 13.4(a) and/or (c) or alternatively that it be struck out pursuant to UCPR 14.28(a), (b) and/or (c). That notice of motion, together with other notices of motion that raised issues such as whether Mr Liu could act as the tutor for his wife and if so, whether he could do so without the intervention of a solicitor, were heard by Schmidt J on 15 March 2011, 11 May 2011 and 16 May 2011.
Her Honour published reasons for judgment on 23 June 2011 and, whilst indicating her findings, made no orders, requesting instead that the parties bring in short minutes of order to reflect her conclusions. Her Honour determined that it was appropriate for Mr Liu to act as the plaintiff's tutor, but that he not be given leave to commence or continue to act as such without the intervention of a solicitor. Her Honour indicated her view that the proceedings as commenced by Mr Liu should be dismissed.
Because of the different approaches taken in the first proceedings by the Court of Appeal in relation to the plaintiff and to Mr Liu, her Honour was inclined to allow the plaintiff an opportunity to re-plead her claim in accordance with the judgment of the Court of Appeal, and to obtain legal assistance for that purpose. However, when her Honour handed down her judgment on 23 June 2011, the proceedings were disrupted when the plaintiff became distressed. Mr Liu sought a short adjournment but, as events unfolded, neither he nor the plaintiff returned to Court. In those circumstances her Honour adjourned the proceedings until 21 July 2011 for further consideration and, in the interim, referred the plaintiff to the Registrar for referral to a barrister on the pro bono panel. Unfortunately, the plaintiff and Mr Liu refused to accept such assistance. They determined thereafter to take no further part in the proceedings when they later came before her Honour on 21 July 2011 and 5 August 2011. On 18 August 2011 her Honour published her further reasons for judgment and made orders disposing of all the notices of motion heard before her. She dismissed the statement of claim filed by the plaintiff and Mr Liu. The events that occurred on 23 June, 21 July and 5 August 2011 are set out in paragraphs [1]-[9] of her Honour's second judgment.
The plaintiff and Mr Liu filed a summons seeking leave to appeal from what was said to be orders 1, 2, 3 and 5 made by Schmidt J on 23 June 2011. No application was made for leave to appeal from the orders in fact made by her Honour on 18 August 2011, despite the defendant's solicitors written suggestion that they consider amending their application for leave so that it related to orders that had been made on that day, and despite a further opportunity to do so being given to the plaintiff on 29 September 2011 by the Court of Appeal when the application for leave to appeal was listed for hearing. As a result, after hearing submissions by Mr Liu on behalf of the plaintiff and Mr Liu, the application for leave to appeal was dismissed. An application for special leave to appeal to the High Court was subsequently dismissed on 9 February 2012.
On 3 July 2012, the plaintiff and Mr Liu filed a further statement of claim, which was summarily dismissed by Garling J. His Honour noted the following at [35]:
"[35] The Statement of Claim presently before the Court does not make any claim for damages arising from the conduct of the police officers in respect of the original complaint to NSW Police, which was the subject of the 2008 and 2010 proceedings. Rather, it seeks to make a claim for damages for intentional torts arising out of various events which occurred in the course of the litigation, which I have outlined above."
The plaintiff commenced the current proceedings by statement of claim filed on 26 April 2013. That document is in the following relevant terms:
"1. This action is brought pursuant to the Crown Proceeding Act 1988 Sect 5, the Law Reform Act 1983 Sect 8(1), 9B, 9C, 9D, 10, the Victims Right Act 1996, Sect 6.1, 6.4, 6.5(c), (d), 6.14., the Police Act 1990 Sect 150, Proceedings on Claim for Intentional Torts and Vicarious Liability for personal injury and economic loss.
2. The defendant is sued in respect of the New South Wales Police Force.
3. On 10 January 2004 the plaintiff was physically assaulted in her home by her landlord. Having already suffered physical injury, she dialled Triple 0 for police. Police Radio called Senior Constable Kennedy to go to the site of incident and see the plaintiff. Kennedy failed to go to the site. However he forged police record which stated that he had seen the first plaintiff and had provided legal advice for the plaintiff. (Evidence 'N')
4. On 12 January 2004 the plaintiff reported the assault to Parramatta Police Station. Senior Constable Kennedy, in an attempt to cover up his mistake on the 10 January 2004, intentionally:
a. Insulted the plaintiff to prevent any further actions/complaints. (Evidence 'CCTV footage')
b. Refused to establish a formal complaint regarding the assault. (Evidence 'N')
c. Refused the plaintiff the services of an interpreter and led the plaintiff away from the front desk to a corner location to enable him to carry out his plan to deceive the plaintiff. (Evidence 'CCTV footage')
d. Deceived the plaintiff into signing a statement that was untruthful and opposite to the intention of the plaintiff. (Evidence 'A', 'N', 'CCTV footage')
5. On 13 January 2004 the plaintiff again went to Parramatta LAC to report to police. Under the immediate order from his supervisor, Kennedy had no choice but to establish a complaint regarding the assault and to take photographic evidence of the physical injuries in several places on the plaintiff's body, but says to Yu Liu 'you are bullshit, you are liar.' (Evidence 'N', 'CCTV footage')
6. From 19 January 2004 to 11 June 2004, Senior Constable Kennedy did not contact the plaintiff under any circumstances. The plaintiff attempted, through several avenues, to discover the progress of the investigation and the court date of the case but was unable to access the appropriate information regarding the investigation. Senior Constable Kennedy intentionally severed contact with the plaintiff in a ploy to conceal the court date and therefore prevent the plaintiff's attendance as a witness. (Evidence 'N')
7. On 11 June 2004 Kennedy in a ploy to have the case dismissed by the court:
a. Concealed all of the evidence from the court (including photos of the injuries suffered by the victim and the statement from the victim). (Evidence 'A', 'A1', 'A2', 'A3', 'A4', 'B')
b. Made false testimony on P 703 Form used by police, stating that the subpoena had been served by 'handing to the person'. (Evidence 'D')
c. Made false affidavit on the hearing date, stating that the victim had received the subpoena but failed to attend the hearing. (Evidence 'B')
d. Deceived the presiding judge into believing that the plaintiff did not care to attend the hearing.
e. Did not notify the victim of the result of the hearing until the appeal period expired.
8. In January 2007 Wang and Liu knew that the police internal investigation had completed only after they made phone enquiries. Afterwards Wang and Liu phoned the police on several occasions and requested to be informed of the outcome of the investigation but were refused by the then commander [E]. (T) [E] breached the Police Act 1990 Sect 150(a), (b) by intentionally concealing the outcome of the investigation and committing intentional tort.
9. Because the intentional torts committed by those members of the NSW Police Force have already caused permanent psychiatric injury to the plaintiff, the defendant should be vicariously liable for the plaintiff's personal injury, loss and the plaintiff's economic loss.
10. Wang's psychiatric injuries contributed to the plaintiff's economic losses, which are set out in the Statement of Particulars.
11. The plaintiff's psychiatric injury ..."
No defence to that statement of claim has yet been filed. However, the defendant filed a notice of motion on 14 May 2014 in which it sought an order pursuant to s 67 of the Civil Procedure Act 2005 that the proceedings be stayed until either the plaintiff's tutor is represented by a solicitor or a notice of motion for her removal and replacement has been filed. That came before Hamill J on that day and clearly prompted the events that are called up for consideration before me. His Honour directed that the proceedings be stayed until the plaintiff had filed a motion seeking replacement of the tutor and an order that the tutor be permitted to appear other than by a lawyer. His Honour also directed that the plaintiff serve evidence in support of any such motion, including evidence of the reasons why the current tutor was sought to be replaced, the reasons why Mr Liu was said to be a suitable or appropriate replacement for her and the reasons why legal representation "cannot, has not or will not be obtained". His Honour adjourned the hearing of the motion to 4 July 2014.
Issues for determination
By an amended notice of motion filed on 27 May 2014, the plaintiff seeks a series of orders as follows:
"1. Replacement of current tutor to Li Wang (Yan Liu) with Yu Liu.
2. Yu Liu to appear as tutor without legal representation.
3. Based on fresh evidence (the medical report of Dr Phillip Brown dated 22 October 2013), the plaintiff seeks leave to amend the statement of claim.
4. As the proposed amended statement of claim will be significant [sic] different to the original one, the plaintiff seeks leave to remove the original statement of claim.
5. Pursuant to the Law Reform Act 1983 s 9C the plaintiff seeks summary judgment for the State's vicarious liability on 4 July 2014 or on 4 August 2014 after the filing of a defence by the defendant.
6. Pursuant to Law Reform Act 1983 ss 9C, 9D, 10, the defendant's motion file dated 31 May 2013 paras 5, 6 discloses no reasonable cause of action or is otherwise an abuse of the process of the court, and should be struck out pursuant to UCPR 2005 r 14.28 (1) (a) (c).
7. Defendant's notice of motion filed dated 13 May 2014 should be struck out pursuant to UCPR 2005 r 14.28 (1) (a) (c) as it discloses no reasonable cause of action or is otherwise an abuse of the process of the court.
8. The defendants pay costs of this motion."
The plaintiff filed a further notice of motion on 1 July 2014. It was also returnable on 4 July 2014. It claimed the following relief:
"1. Pursuant to the UCPR-2005, r 14.28(1)(b), Seeking the Order to strick [sic] out the 'Affidavit of Marjorie Collins sworn 13,16 of June 2014' because the Defendant did not follow the Court's Orders of 14 May 2014 and delayed filing those two documents to the Court, without a Consent Order, a Notice of Motion or a Court's Leave. They have had as long as two months to do so, which is ample time and opportunity.
2. Seeking the Order to remove the Submissions of the Defendant's counsel because this document has not been filed to the Court, the lawyers of the Crown Solicitor's Office should not smuggle it into the Book and sneak this Book into the Court's File.
3. Seeking the Order to remove the 'Summary of Factual and Procedure History' because this document dose [sic] not has a signature even a printed name of the writer and cannot be recognised as the part of the Submissions.
4. The Defendant to pay the costs of this Motion."
The notices of motion were supported by affidavits of Yu Liu sworn 27 May 2014 and 1 July 2014. Neither affidavit contains any evidence or other material of the type to which Hamill J referred or any evidence that is in any other way relevant to the issues raised by the first two prayers for relief sought in the amended notice of motion.
I was also provided with written submissions filed by the plaintiff on 20 June 2014. I have had regard to those submissions for the purposes of arriving at my conclusions in this case.
The defendant read the affidavits of Marjorie Collins sworn 13 June and 16 June 2014. The defendant also provided me with written submissions and a summary of the factual background to the proceedings.
In accordance with other directions made by Hamill J, the defendant has indicated that it does not oppose the removal of the plaintiff's tutor, on the condition that she remains liable in respect of everything done in the proceedings and all costs incurred from the date on which she filed her consent to act as tutor on 6 June 2013 up to the date of her removal. The defendant does not consent to the appointment of Mr Liu as the plaintiff's tutor. In the event that he were appointed as the plaintiff's tutor, the defendant opposes Mr Liu carrying on proceedings as such except by a solicitor.
The applicable rules
The following rules should be noted:
"7.14 Proceedings to be commenced or carried on by tutor
(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.
(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.
7.15 Tutors generally
(1) Subject to this Division, a person may become the tutor of a person under legal incapacity without the need for any formal instrument of appointment or any order of a court.
(2) Any person (other than a corporation) is eligible to be the tutor of a person under legal incapacity, in respect of any proceedings, unless the person is:
(a) a person under legal incapacity, or
(b) a judicial officer, a registrar or any other person involved in the administration of a court, or
(c) a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity.
(3) In the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee and Guardian Act 2009, the tutor of that person is to be the person who has the management of the person's estate under that Act.
(4) Subrule (3) does not apply if the person concerned declines to act as tutor or is unable to act as tutor, or if the court orders otherwise.
(5) A person may not replace another person as tutor of a person under legal incapacity except by order of the court.
(6) Anything that these rules authorise or require a party to do in relation to the conduct of proceedings may, if the party is a person under legal incapacity, be done on his or her behalf by his or her tutor.
7.16 Tutor to file certain documents
A tutor may not commence or carry on proceedings on behalf of a person under legal incapacity unless there have been filed:
(a) the tutor's consent to act as tutor, and
(b) a certificate, signed by the tutor's solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.
7.17 Non-appearance of person under legal incapacity
(1) Subject to subrule (2), the plaintiff in proceedings against a defendant who is a person under legal incapacity may take no further step in the proceedings following service of the originating process until a tutor has entered an appearance on behalf of the defendant.
Note: If no such appearance is entered, the plaintiff may apply to the court under rule 7.18 for the appointment of a tutor of the defendant, or for the removal and appointment of such a tutor.
(2) In the case of proceedings in the Local Court against a defendant who appears to be a person under legal incapacity by reason only of his or her minority:
(a) the plaintiff may serve on the defendant a notice requiring a tutor of the defendant to enter an appearance in the proceedings, and
(b) unless the court orders otherwise, the plaintiff may continue the proceedings as if the defendant were not a person under legal incapacity if such an appearance is not entered within 28 days after service of the notice.
7.18 Court may appoint and remove tutors
(1) In any proceedings in which a party is or becomes a person under legal incapacity:
(a) if the person does not have a tutor, the court may appoint a tutor, or
(b) if the person has a tutor, the court may remove the party's tutor and appoint another tutor.
(2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings.
(3) If the court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor.
(4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person's tutor, on the tutor.
(5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include:
(a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and
(b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.
(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor."
The defendant's position
The defendant's position before me, with respect to the question of the appointment of Mr Liu as the plaintiff's tutor and whether he should, if appointed, be permitted to act without a solicitor, was supported by submissions to the following effect.
In her judgment published 23 June 2011 (Wang v State of New South Wales [2011] NSWSC 609), Schmidt J determined that Mr Liu should not be permitted to carry on those proceedings as tutor without a solicitor. However, her Honour determined that he should not be removed as tutor but should be permitted to continue to act as such, subject to the requirement that he act through a solicitor. However, her Honour left that issue open to be revisited saying:
"[47] On the evidence, I am not able to conclude that Mr Liu continuing to act as Ms Wang's tutor would be inconsistent with her own best interests, given the other orders which I have made. The assistance of a solicitor should address the difficulties which have arisen, to this point, so that the overriding purpose of s 56 may be achieved. If they are not resolved, no doubt a further application may be made."
Notwithstanding the need for her Honour's second judgment and the subsequent judgment of the Court of Appeal, Schmidt J's reasoning in relation to whether or not Mr Liu should be the plaintiff's tutor, and whether he should be permitted to act without legal representation, remains persuasive and should not be departed from unless I formed the view either that her Honour was plainly wrong or that subsequent events suggest a different conclusion.
In relation to the issue of whether or not Mr Liu ought to be able to act as the plaintiff's tutor without legal representation, the defendant submitted her Honour's reasoning was cogent and ought to be followed by me. The defendant also submitted that there has been a change in position since Schmidt J's determination, in that the subsequent conduct of Mr Liu tips the balance further against him acting in any capacity. The defendant accepts that the starting point in this regard is Schmidt J's decision, which is adverse to the defendant on this point. The defendant does not argue that her Honour erred in that decision. It instead submits, bearing in mind the matters raised by her Honour at [47] of her judgment that, having regard to subsequent events, it would no longer be appropriate for Mr Liu to be appointed as the plaintiff's tutor.
Specifically, the defendant submitted that Mr Liu's conduct in the appeal in those proceedings, in the proceedings commenced subsequently and dismissed summarily by Garling J, and in the current proceedings, further demonstrates that it would not be appropriate and not consistent with the overriding purpose of s 56 of the Civil Procedure Act 2005, or consistent with the best interests of the plaintiff, for him to be permitted to act as tutor without legal representation. Details of that conduct, such as the way in which Mr Liu conducted that appeal and subsequent proceedings, including the form and substance of the submissions filed by him in relation to the current amended notice of motion, were referred to in detail by the defendant as forming a substantial reason for not appointing Mr Liu as the plaintiff's tutor. It is unnecessary to record all of those concerns in detail in these reasons.
However, by way of recent example, the defendant refers to the submissions upon which the plaintiff relies in support of the amended notice of motion. According to the defendant:
(1) They are in the main entirely irrelevant to the issues to be determined by the Court.
(2) They demonstrate Mr Liu's factual inaccuracies and/or misunderstandings that have been highlighted by the judgments in the various earlier proceedings of the Court.
(3) They contain scandalous and inappropriate allegations.
(4) They demonstrate a misunderstanding of procedural matters and legal principle.
The plaintiff's claim, as indicated by the Court of Appeal (see Wang v State of New South Wales [2010] NSWCA 209 at [40]), raises complex and difficult legal issues. Without appropriate legal representation, Mr Liu will not be in a position to conduct the matter in a way that facilitates the just, quick and cheap resolution of the real issues in dispute.
Additionally, despite being directed to do so by Hamill J, and despite his failure to do so being raised in correspondence from the defendant's solicitor dated 6 June 2014 and 13 June 2014, Mr Liu has not served any evidence in relation to his ability to obtain appropriate legal representation, either on a pro bono, paid or contingency fee basis, or any evidence as to why he seeks to appear without legal representation.
Whilst Mr Liu has put on no evidence in this regard, it appears from his submissions that the reason for replacement of the current tutor is apparently that the plaintiff is unhappy with her daughter's performance and does not trust her. Whilst the defendant accepts that that may be an unavoidable fact, if Ms Liu wishes no longer to continue to act as the tutor, the defendant does not object to her ceasing to act in that capacity upon the basis set out previously. The plaintiff's expressed desire for Mr Liu to be her tutor should be disregarded.
Legal principles
The defendant drew attention to the following relevant legal principles. The plaintiff did not suggest that the following summary was inaccurate or inapplicable.
A tutor may be removed if he or she has an interest in the suit adverse to the incapable person, is closely connected with another party who has such an adverse interest, will not proceed with the action or conducts it improperly. Hodgson J dealt with these principles in Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200. His Honour considered the position regarding the appointment of a tutor for a defendant who, as an infant, was a disabled person within the meaning of the rules. At 203-204 his Honour said:
"A useful statement of principle concerning the role of a tutor is contained in the judgment of Bowen LJ in Rhodes v Swithenbank (1889) 22 QBD 577 at 579 (quoted with approval by Williams, J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 113-114):
'...The only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that he is the officer of the court to take all measures for the benefit of the infant in the litigation in which he appears as next friend. One of the purposes of appointing a next friend is to have a person on the record who is personally liable for costs. But that is not the only purpose for which a next friend is appointed. He is appointed principally to institute and carry on the proceedings on behalf of the infant because the law considers that an infant is incapable of asserting or protecting his rights or forming a judgment as to the necessity of applying for protection or redress to the tribunals of the country. Accordingly, where more than one person is willing to act as a next friend, the court will appoint as most suitable the father or if he is dead the widow or some near relative in preference to a stranger unless the interest of the father or other relative is adverse to that of the infant. The next friend will be removed by the court if he has an interest, or is closely connected with some person who has an interest, which is adverse to that of the infant, or if for any reason the court considers that the infant's interests will not be properly protected by him. If there be any suspicion that the proceeding is an improper one or that the next friend is unfit to have the conduct of it, an inquiry may be directed on such matters, and if it appears on inquiry, or in clear cases without inquiry, that the proceeding is not for the infant's benefit it will be stayed, or, if the circumstances warrant it, dismissed with costs to be paid by the next friend.'
This statement concerns the next friend of an infant, and the comment about the principal purpose of the appointment of a person to act on behalf of the infant in proceedings being because the law considers that an infant is incapable of asserting or protecting his rights, applies with at least equal force to the case of a guardian ad litem, that is a tutor appointed to represent an infant defendant in proceedings. Similarly, in most cases, if willing, a parent or near relative is the appropriate person to be appointed tutor."
If a tutor is removed, even if no substitute is proffered who is willing to accept liability for the costs of the proceedings, that will rarely justify an order dispensing with the requirement of a tutor: see South v Northern Sydney Area Health Service [2003] NSWSC 479. In that case the parent of the plaintiff was removed upon the basis of a conflict of interest. The Protective Commissioner was unwilling to accept an appointment as tutor and the proceedings were stayed until a new tutor was appointed.
In general, the public interest in the efficient and proper conduct of litigation, according to general standards of professional competence and probity, requires litigation to be conducted by properly qualified practitioners: see Abse v Smith [1986] QB 536 at 545-546. Whilst the Court may permit litigation to be conducted other than by legal practitioners, such leave ordinarily should be regarded as "a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it be unduly technical or burdensome to insist on counsel": Re G J Mannix Ltd [1984] 1 NZLR 309 at 314.
Leave is more likely to be given in straightforward cases in Courts of limited jurisdiction, for example the Local Court, but the Court should be very wary of giving leave in higher courts: see for example Re G J Mannix at 314 and 316; Hubbard Association of Scientologists International v Anderson [1972] VR 340 at 343; Bay Marine Pty Ltd v Clayton County Properties Pty Ltd (No 2) (1986) 8 NSWLR 104 at 110-111; Scotts Head Developments Pty Ltd v Pallasar Pty Ltd (NSWCA, 6 September 1994, unreported at 4-5); and Paragon Finance PLC v Noueiri [2001] 1 WLR 2357 at 2368-2369.
Assistance can also be gained from consideration of applications by companies to conduct litigation other than through a solicitor. In Silkearl Pty Limited v Ainsworth Game Technology Ltd [2006] FCA 949, Allsop J considered that because of factors such as the legal and factual complexity of the litigation, the emotive involvement of the applicant company's director in the dispute and the absence of meaningful financial information regarding the applicant company, it should not be permitted to conduct the litigation without a solicitor appearing for it. Also, in AA Shi Pty Ltd v Avbar Pty Ltd (No 4) [2010] FCA 878, Collier J refused a similar application.
In Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149, the Court of Appeal considered a situation where in District Court proceedings a friend of the appellant, who was not a lawyer, sought to appear for her but was not permitted to do so. Stein JA considered the relevant authorities at length and extracted the following principles from those authorities, at [69] to [86] in the following terms:
"Principles from the cases
[69] A number of themes or principles run through the cases which are relevant to the exercise of the discretion to grant or refuse leave to an unqualified person to appear on behalf of an unrepresented litigant. They may be briefly summarised as follows:
(a) The complexity of the case
[70] Whether the case is one of complexity or minor or straightforward has often been seen as a discretionary factor. See for example, Scotts Head, per Mahoney A-P (at 4); Re G J Mannix (at 311, 314, 316); Bay Marine, per Samuels JA (at 110-111); Hubbard (at 343); Abse (at 549) and Miles CJ (at 3) in Commonwealth Bank v Individual Homes.
[71] In the instant case Dent DCJ, referred to the case as a complex one having regard to the pleadings. This was a relevant factor well open to be concluded by the judge.
(b) Genuine difficulties of the unrepresented party
[72] These include matters such as unexpected language difficulties and emergencies. An example of the latter was the absence of legal aid in a criminal appeal (Schagen (at 411-412)). Also, in that case, the appellant was deaf and virtually incomprehensible to the court reporters. The court permitted two law students to address the court. See also Re G J Mannix (at 314, 316, 317); Scotts Head (at 4); Abse (at 549); Galladin (at 147-148) and Stergiou (at 247).
[73] The case before the court does not fall into an emergency situation nor one where the appellant experienced unexpected language difficulties in conducting his own case. Mr Damjanovic was probably always going to need an interpreter. If he gave evidence, as he would need to in order to establish his case, Ms Vukic could not interpret for him. Doing so would obviously conflict with her position as his advocate. See, for example, Pacific Air Freighters (Qld) Pty Ltd v Toller (2000) 171 ALR 519 at 521. That the appellant had previously been dissatisfied with interpreting services is beside the point. To be able to present his own case, the appellant would need an accredited interpreter of the Croatian language. That the appellant has poor command of the English language is no reason to grant Ms Vukic leave to appear as his advocate.
(c) The unavailability of disciplinary measures and a duty to the court by lay advocates
[74] Almost every case mentioned these matters as protection for a client when a qualified lawyer represented a party but were protections which were not available where an unqualified lay advocate appears. See Re G J Mannix (at 311, 316); Scotts Head (at 3); Hubbard (at 343); Abse (at 546, 555); Bay Marine (at 110-111); R v Smith (at 614); Tritonia (at 587) and Paragon (at 2371) referring to Woolf MR in D v S. Abse also emphasised the duty of a legal practitioner of absolute probity.
[75] In appropriate cases a legal practitioner may be ordered to pay costs. The position is far from clear in relation to a non party lay advocate. There may be extreme circumstances where the conduct of a lay advocate could attract an adverse costs order.
[76] In my opinion, the overall duty of a barrister or solicitor to the court is an important consideration. It is a duty of candour and a practitioner must not knowingly mislead the court. The court is entitled to place reliance on that duty and expect it to be met. The disciplinary codes of the legal profession back up the overriding duty of a practitioner to the court. (See D A Ipp, "Lawyers' Duties to the Court" (1998) 114 Law Quarterly Review 63).
[77] Training, qualifications and experience are also important. This is not to say that there are not incompetent lawyers, including some who seek to practice advocacy. For the most part, the market and the disciplinary codes account for them. But with unqualified and uninsured lay advocates, the court loses the benefit of the overriding duty and clients are at a distinct disadvantage. Apart from endeavouring to ensure that a lay person granted leave to appear obeys the rules, there is little a court can do except, in an appropriate case, withdraw the leave to appear.
[78] All of the above is not to say that Ms Vukic has not obeyed the rules of court when she has been granted leave to appear. In the court's experience she has been unfailingly courteous and polite. However, the absence of a disciplinary code and duty to the court underlines the inappropriateness of permitting unqualified persons to appear apart from an exceptional case.
(d) Protection of the client and the opponent
[79] Lay advocates are unqualified, unaccredited and uninsured. This places a client at considerable risk. The point was made in Scotts Head that an unqualified advocate may cause loss to a party (at 3). A lay advocate does not owe the same duty to his client as does a lawyer. See also Abse (at 546) highlighting the duty owed by a lawyer to assist the court in ensuring the end of the proper administration of justice. On the same issue see also Paragon and D v S.
[80] One should also not lose sight of a lawyer's duty to his/her opponent, Scotts Head (at 3). None of these protections for the system of justice exist with an unqualified lay advocate. In this case, Mr Damjanovic has none of the protections although he can afford a lawyer. As I have said, it is difficult to accept that he cannot find a competent and trustworthy Croatian or non-Croatian lawyer.
(e) Lay advocates in inferior courts and tribunals
[81] There are indications in some of the cases that Local Courts, given their jurisdiction and large numbers of unrepresented litigants, may be more likely to grant leave to unqualified persons. This is, one assumes, in straightforward uncomplicated matters where the party is under some disability in presenting his/her own case. This may also be the case with some specialist jurisdictions and tribunals.
[82] The authorities however suggest that higher courts should be very chary at giving leave. See Re G J Mannix (at 314); Hubbard (at 343); Bay Marine (at 111); Scotts Head (at 3-4) and D v S (see Paragon (at 2369)).
(f) The interests of justice
[83] What runs through all of the authorities as the guiding principle in the exercise of the discretion is the public interest in the attainment of the ends of justice. The public has an interest in the effective, efficient and expeditious disposal of litigation in the courts. As a general rule this can best be achieved by parties employing qualified lawyers.
[84] The reason for this was explained by Gleeson CJ in a speech given to the Supreme Court of Japan in January 2000 (Current Issues for the Australian Judiciary). The Chief Justice said that:
'The adversary system assumes, in the interests of both justice and efficiency, that cases will be presented to courts by skilled professionals. To the extent to which that assumption breaks down, so does the system'.
[85] Representation by legal practitioners will not always be possible because of the high cost of legal services and restrictions on legal aid. There is therefore room for the discretion to be exercised in an appropriate case, as indeed the authorities make plain and in circumstances where the achievement of justice cannot be otherwise secured.
[86] Nonetheless, the foundation for the general principle and limited room for the discretion to be exercised is, as Mahoney A-P said in Scotts Head, the proper administration of justice and the protection of the parties. It is not a rule devised to protect a lawyer's privilege or monopoly. Access to justice is a difficult issue in an ever more complex society with constraints on public resources. It will therefore be understandable and appropriate that judges will from time to time be prepared to grant leave to an unqualified person. Advocacy before courts is however a difficult skill to acquire without formal qualifications, training and practice. Ultimately perhaps governments may take up some of the recommendations of the Access to Justice Report referred to earlier."
These important matters are considered below.
The plaintiff's position
Without intending any disrespect to Mr Liu or the plaintiff, I did not find submissions made on their behalf, either in writing or in Court, particularly helpful. They were not directed to the issues to be decided by me. That is so notwithstanding my attempts to have Mr Liu concentrate upon and direct his attention to those issues. In particular, Mr Liu was unable to point me to any evidence of the type required by Hamill J that illuminated the question of why any tutor for the plaintiff should not be required to appear by a solicitor or why I should order otherwise as contemplated by the rules. In the circumstances I proceeded upon the basis that the plaintiff and Mr Liu wanted their daughter to be removed as the tutor, for Mr Liu to be appointed to replace her, and that thereafter he could act in that capacity to carry on the proceedings without a solicitor.
Mr Liu was also intent on drawing to my attention the fact that in his submission the defendant had failed strictly to comply with time limits for the filing of evidence and in certain other respects. I have taken the view that any failures of this type to which Mr Liu was able to point were de minimus and not such as to preclude the defendant opposing the orders sought.
Consideration
It is not possible to make a reasonable assessment of the competing positions in this litigation without making some observations about Mr Liu and the plaintiff and the way in which the proceedings unfolded before me. Mr Liu appeared and conducted the case for the plaintiff. He was accompanied by the plaintiff who sat at the bar table with him. Despite, or perhaps because of, the matters that appear to have led to the appointment of the plaintiff's tutor, she constantly and emotionally contributed to the proceedings. She occasionally wailed and wept while seated. She stood up from time to time and remonstrated with me and with counsel for the defendant. It was clear that she is dissatisfied with any number of things, including her daughter continuing to act as her tutor, her belief or perception that the defendant has not acted appropriately in choosing to contest her claims and defend the case and her concern that lawyers should not be permitted to come between her and her husband in the conduct of the proceedings. The plaintiff also enthusiastically supports Mr Liu's appointment as her tutor.
It is also clear that Mr Liu is struggling with the task that confronts him. As I have earlier noted, the defendant seizes upon Mr Liu's "inappropriate" conduct as a fundamental or threshold basis to oppose his appointment as the plaintiff's tutor. In that respect it is accurate to say that Mr Liu's conduct, represented by the form and content of his pleadings, his affidavits and his submissions, has been extravagant, to say the least. There are allegations of what amounts to deceitful conduct on the part of the defendant and other unsupported allegations of impropriety. The defendant has characterised these allegations as scandalous. There is certainly no current support for any of them.
I think that it is important, however, not to lose sight of the overall context in which the current proceedings have been formulated. As the history reveals, there may well exist an authentic foundation for the plaintiff's dissatisfaction with what happened to her. It is certainly not out of the question that the relevant facts may be capable of supporting the existence of a cause of action known to the law. The passionate and emotional responses in court that I observed are to some extent at least an obvious and understandable reflection of this. Unfortunately, there would not appear ever to have been a professional assessment of that possibility conducted for the plaintiff or certainly not one that produced any pleading capable of withstanding scrutiny. That in turn has generated consistent and reasonable responses from the defendant and judges of this Court that have for the most part only served to heighten the frustrations in the plaintiff's camp. The end result is an almost inevitable cycle of combat between the parties to the proceedings that never manages to advance them to a satisfactory conclusion or anything vaguely approaching it.
There appear to me to be two overarching realities in this case. The first is that Mr Liu will remain active and influential in the future conduct of these proceedings, whether in the capacity of his wife's tutor or simply as her husband, in precisely the same ways that he has done so far. The question of his appointment as the plaintiff's tutor must almost inevitably in the particular circumstances of this case be understood and accepted as a formal matter that is highly likely, if not certain, to have no measurably different effect at all upon what has occurred to date or upon what happens from here on.
In saying as much I repeat my earlier observation that I have not been provided with information of the type referred to by Hamill J that his Honour carefully directed the plaintiff to provide. I accept that Mr Liu and the plaintiff do not want their daughter to continue in her current role. The tutor has not provided an affidavit outlining her own views, although she was in court during the proceedings before me and her body language and expressions were a silent testament to my suspicion that she would be delighted to be replaced.
The second reality would appear to be that Mr Liu and the plaintiff will neither take any steps themselves to appoint a solicitor to represent them nor take or accept any advice that any such solicitor might provide if that occurred. At a slight remove from that question, I have been informed that attempts to appoint a legal adviser through the Court's pro bono panel went nowhere. It seems that no lawyers who were approached were prepared to undertake the job. Having regard to the combination of legal, cultural and emotional complexities involved, that is hardly surprising. Moreover, it seems to me that any principled basis that may exist for refusing to permit the plaintiff's tutor to continue to represent her without a lawyer necessarily has to confront the same considerations.
I have no difficulty accepting that the several matters identified by Stein JA in Damjanovic v Maley could apply to the present case. It would in that way be possible to make a case that any proposed tutor in these proceedings ought not to be permitted to appear without a lawyer for one or more of the reasons identified by his Honour. On the other hand, any other conclusion would potentially also confront the very real prospect that the plaintiff would be denied access to justice, albeit for different reasons.
In that last respect I do not intend to suggest that the plaintiff and Mr Liu have not managed to prosecute their concerns in this Court with great enthusiasm over a number of years. Unfortunately their efforts have produced nothing more than procedural conclusions that were at best mildly encouraging or at worst totally unsuccessful. While I accept that the plaintiff and Mr Liu are undoubtedly seeking a measure of vindication, this Court's ability to provide it is effectively limited to an award of damages. One attempt to mediate the dispute did not succeed. Mr Liu peremptorily rejected my suggestion that another attempt at mediation might be considered.
The case that the plaintiff wishes to prosecute is not particularly complex, certainly if viewed from the point of view of a legal practitioner customarily concerned with cases of intentional torts involving the police. It is factually fairly straightforward, even taking into account all of the detail that is included in the proposed amended statement of claim that became exhibit "A" in the proceedings before Hamill J. Indeed, that document could conveniently be treated as further particulars of the current statement of claim. Of course, there is as yet no defence to the statement of claim, so that the legal issues cannot be said to have completely materialised or crystallised. Even so, the anticipated legal questions should not be overly difficult or complicated.
Mr Liu is a little difficult to understand when he speaks, as he tends to do so quickly and with a reasonably strong accent. However, this has not carried over to his written material, and the statement of claim and his submissions are perfectly easy to read and to understand. The major genuine difficulties are substantive and procedural, rather than communicative. There is little doubt that Mr Liu fully understands the wrong he perceives has been done, but the same cannot be said of his level of understanding of how to go about putting it right. In my estimation he will always fail to do the best for the plaintiff if he persists with his refusal to obtain a solicitor or barrister to appear for him.
I am particularly aware of the difficulties for the defendant that are associated both with the plaintiff's current and past legally unrepresented status. The defendant is a model litigant and in the proceedings before me unquestionably adhered to the constraints that such status imposed upon it. Mr Hodgson of counsel, who appeared for the defendant, was particularly helpful and forebearing in the face of fairly colourful conduct by the plaintiff and Mr Liu. It is unfortunate that Mr Hodgson's perfectly reasonable and proper non-combative generosity was not understood or accepted, far less embraced, by his unrepresented opponents.
None of these matters is by itself an insurmountable obstacle for the plaintiff. However, the interests of justice are not so easily served, as they not only contemplate the public interest in the attainment of the effective, efficient and expeditious disposal of litigation in the courts but necessarily also the individual rights of a particular litigant. Overall, I cannot see that the plaintiff and Mr Liu will ever be able to do themselves justice in these proceedings without legal assistance. With limited exceptions, that has proved so far to be the case, and the events that unfolded in court before me suggest that it will not change. Whatever may be the hypothetical strength of the case that the plaintiff wishes to pursue, there is almost no likelihood that this Court will ever be able to assess it accurately or fairly if the plaintiff's tutor is not legally represented. It is therefore in that very important respect that the interests of justice cannot on balance be served by granting the plaintiff the leave that she seeks.
Conclusions and orders
It will be apparent that I am prepared to order that the plaintiff's tutor be removed and that, subject to compliance with UCPR 7.16, Mr Liu be appointed as the tutor in her stead. It will also be apparent, however, that I am not prepared to order otherwise in terms of UCPR 7.14(2) so as to permit the plaintiff's tutor to carry on these proceedings except by a solicitor. Pending compliance with UCPR 7.14(2) and UCPR 7.16, the proceedings should therefore be stayed.
Unless the parties wish to contend for different orders giving effect to my conclusions, I propose to order as follows:
(1) Order that Yan Liu be removed as the plaintiff's tutor pursuant to UCPR 7.18(1)(b).
(2) Order that, subject to compliance with UCPR 7.16, Yu Liu be appointed as the plaintiff's tutor pursuant to UCPR 7.18(1)(a).
(3) Order that Yu Liu take no further or other step to carry on the proceedings in his capacity as the plaintiff's tutor until a notice of appearance by a solicitor appointed to act for him in that capacity in these proceedings has been filed in the Registry and served upon the defendant.
(4) Otherwise stay the proceedings pursuant to s 67 of the Civil Procedure Act 2005 pending compliance with order (3) or until further order.
(5) Grant liberty to apply on 7 days' notice to the other party and to the Court.
**********
Decision last updated: 08 July 2014
10
10
5