Wang v State of New South Wales

[2020] NSWCA 21

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Wang v State of New South Wales [2020] NSWCA 21
Hearing dates:	17 February 2020
Date of orders:	20 February 2020
Decision date:	20 February 2020
Before:	Macfarlan JA; Payne JA
Decision:	Application for leave to appeal dismissed with costs.
Catchwords:	APPEALS – application for leave to appeal against refusal of leave for tutor to conduct proceedings without engaging a solicitor – UCPR r 7.14(2)
Legislation Cited:	Uniform Civil Procedure Rules Supreme Court Act 1970 (NSW)
Category:	Procedural and other rulings
Parties:	Li Wang (Applicant) State of New South Wales (First Respondent) Colin Hodgson (Second Respondent)
Representation:	Counsel: Self-represented Applicant A N Williams (First Respondent) B McManus (Second Respondent)   Solicitors: Self-represented Applicant Crown Solicitor’s Office (First Respondent) Colin Biggers & Paisley Lawyers (Second Respondent)
File Number(s):	2019/328872
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2014] NSWSC 909 [2019] NSWSC 1332 [2019] NSWSC 1599 Date of Decision: 8 July 2014 1 October 2019 21 November 2019 Before: Harrison JAdamson JHarrison AsJ File Number(s): 2013/128929 2019/227867

Judgment

1. THE COURT: These and a number of other proceedings arise out of allegations by the applicant, Ms Li Wang, that in January 2004 she was assaulted by her landlord and that her complaint to police about the assault was mishandled. The various proceedings have been the subject of a number of judgments of the Common Law Division and this Court. It is sufficient to refer to the three with which this application for leave to appeal is concerned.

2. The first is that of Harrison J of 8 July 2014 in which his Honour ordered that Ms Wang’s husband, Mr Yu Liu, be appointed her tutor in place of their daughter who had previously been appointed ([2014] NSWSC 909). His Honour declined to make an order under r 7.14(2) of the Uniform Civil Procedure Rules (“UCPR”) permitting Mr Liu to carry on the proceedings without a solicitor.

3. Secondly, by judgment of 1 October 2019 Adamson J made orders relating to the following notices of motion ([2019] NSWSC 1332). On 21 August 2019 Ms Wang had filed a notice of motion seeking summary judgment and on 6 September 2019 the second defendant, Mr Colin Hodgson had filed a notice of motion seeking that the Statement of Claim be struck out or summarily dismissed so far as he was concerned. On 10 September 2019 the Registrar set both notices of motion down for hearing on 30 October 2019. Taking the view that this hearing date was too far into the future, Ms Wang filed two further notices of motion seeking that her claim for summary judgment be heard at an earlier point in time. Adamson J found that Ms Wang was not entitled to any greater priority than was reflected by the allocated hearing date of 30 October 2019 and declined to fix any earlier date. Her Honour also directed that any further application by Ms Wang made in the proceedings prior to 31 October 2019 only be made with leave granted by the Court.

4. Thirdly, by judgment dated 21 November 2019 Harrison AsJ dismissed the proceedings against the second defendant and stayed the proceedings against the first defendant, the State of New South Wales, “unless and until the plaintiff’s tutor complies with the orders of Schmidt J and Harrison J that the tutor is to be represented by a lawyer” ([2019] NSWSC 1599). Those orders were made by the judgment of Schmidt J in Wang v State of New South Wales [2011] NSWSC 609 and that of Harrison J referred to in [2] above.

5. On the cover page of her Amended Summons Seeking Leave to Appeal which is the subject of this judgment, Ms Wang identifies the judgments of Adamson J and Harrison AsJ referred to above as those the subject of the application. In her appeal grounds she also seeks to challenge the judgment of Harrison J referred to above. That judgment was given in different substantive proceedings but that procedural difficulty can be put to one side as, for the reasons given below, the challenge to the judgment has no merit in any event. Likewise, in the case of the proposed appeal against Harrison AsJ’s judgment, this Court’s powers under s 44 of the Supreme Court Act 1970 (NSW) can be utilised to permit, contrary to the usual position, a challenge to an associate judge’s decision to be brought to this Court, rather than to a Divisional judge.

6. We now refer as follows to the five Appeal Grounds that appear in Ms Wang’s draft Notice of Appeal filed in support of her application for leave to appeal.

7. Appeal Ground 1 alleges that Adamson J’s orders, as well as the Notice of Motion and evidence on which she acted, are “illegal”. Neither the draft Notice of Appeal nor Ms Wang’s written argument provides any support for this assertion. In any event this appeal ground should be rejected because any appeal from Adamson J’s orders would be completely otiose. The effect of her Honour’s decision was simply to refuse to bring forward the then allocated hearing date of 30 October 2019, which has now passed. Furthermore, her Honour’s constraint on Ms Wang filing any further application in the proceedings was expressly limited to operate only until 31 October 2019, a date which has now also passed.

8. Appeal Ground 2 also challenges Harrison J’s orders as “illegal”. The basis for this contention appears to be that Ms Wang alleges that Harrison J acted on the mistaken assumption that the issue of whether Ms Wang’s tutor could act without the appointment of a solicitor had not previously been dealt with by this Court. However his Honour’s assumption was correct. In particular, the Court did not deal with that issue in its decisions of 14 October 2009 and 24 August 2010 ([2009] NSWCA 340 and [2010] NSWCA 209 respectively). In any event, as this Court pointed out in its decision of 31 October 2014 ([2014] NSWCA 373), the determination of such a question is very much dependent upon the circumstances prevailing at the time and “it would be open for Ms Wang at any time, should circumstances change, to make a further application under r 7.14(2), supported by the appropriate evidence as to why her tutor should not be represented by a qualified legal representative” (at [26]).

9. The period approaching six years that has elapsed since Harrison J’s judgment was delivered is more than sufficient to warrant refusal of leave to appeal from it, quite apart from the fact that an application for leave to appeal from it has previously been made to this Court and was refused ([2014] NSWCA 373). It remains open to Ms Wang to make a further application on a different basis, for example, if it be the case, that neither Ms Wang nor her tutor has sufficient funds to engage a solicitor and that the proceedings would therefore be stultified if her tutor were not permitted to act without a solicitor.

10. By Appeal Ground 3, Ms Wang alleges that Harrison AsJ’s orders are also “illegal”. The apparent basis for this contention is that the State of New South Wales filed its Notice of Appearance in the proceedings late. That did not, contrary to what Ms Wang contends, render everything that followed in the proceedings “illegal”. In any event the time for the filing of the Notice of Appearance was subsequently extended (see Wang v State of New South Wales (No 3) [2019] NSWSC 1599 at [80]-[83]). So far as the challenge to Harrison AsJ’s order of a stay of proceedings against the first defendant until Ms Wang’s tutor obtained a solicitor is concerned, no error in her Honour’s reasoning has been identified, although we emphasise that her Honour was not asked to deal with any stultification argument such as that referred to in the paragraph above. Nor, it appears, was evidence adduced in support of such an argument. There is no challenge to the other principal order made by her Honour, namely, dismissal of the proceedings against the second defendant.

11. In Appeal Ground 4, Ms Wang again challenges Harrison J and Harrison AsJ’s refusals to make an order under r 7.14(2) permitting her tutor to act without a solicitor. It alleges that the orders were made “in the respondents’ interests” and were “irregular and injustice [sic]” but does not identify any argument that indicates that there was an error in what their Honours did.

12. Appeal Ground 5 contends that the lawyers acting for the respondents intentionally misled Adamson J, Harrison J and Harrison AsJ and therefore should be ordered to pay costs. There is no evidence to indicate that this allegation has any basis.

13. In conclusion, we add that Ms Wang’s argument put orally that the respondents’ positions are prejudiced because they have not filed notices of contention in this Court has no substance. Whether they wish to file such notices to seek to support the primary decisions on grounds additional to those given by the judges is a matter for them.

14. For these reasons, none of Ms Wang’s Appeal Grounds has any merit. As a result, her application for leave to appeal is dismissed with costs.

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Decision last updated: 20 February 2020