Wang v State of New South Wales

[2023] NSWSC 1478

Supreme Court

New South Wales

Medium Neutral Citation:

Wang v State of New South Wales [2023] NSWSC 1478

Hearing dates:

28 November 2024

Date of orders:

5 December 2023

Decision date:

05 December 2023

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1)   The proceedings are dismissed.

(2)   Unless the parties approach to be heard within 7 days, in which event they should file and serve short written submissions about the order that they seek, Ms Wang is to bear the State’s costs of the proceedings, as agreed or assessed.

Catchwords:

CIVIL PROCEDURE — Notice of motion — dismissal of proceedings sought — whether plaintiff’s claims are frivolous and vexatious — abuse of process — Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1) — further proceedings to advance arguments already rejected by the Court of Appeal — failure to plead material facts — the just, quick and cheap resolution of the real issues in proceedings — Civil Procedure Act 2005 (NSW), s 56 — proceedings dismissed.

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1), 42.1

Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Agius v The State of New South Wales [2001] NSWCA 371

General Steel Industries Inc V Commissioner for Railways (NSW) (1964) 112 CLR 125

Li Wang v State of NSW [2022] NSWSC 544

McGuirk v The University of New South Wales [2009] NSWSC 1424

Wang & Anor v State of New South Wales [2010] HCASL 273

Wang & Anor v State of New South Wales [2012] HCASL10

Wang & Anor v State of New South Wales [2015] HCASL 45

Wang v State of New South Wales& Anor [2020] HCASL 266.

Wang v State of New South Wales & Ors [2022] NSWSC 1700.

Wang v State of New South Wales [2009] NSWCA 340

Wang v State of New South Wales [2010] NSWCA 209

Wang v State of New South Wales [2011] NSWCA 321

Wang v State of New South Wales [2011] NSWSC 609.

Wang v State of New South Wales [2011] NSWSC 882

Wang v State of New South Wales [2013] NSWSC 386

Wang v State of New South Wales [2014] NSWCA 373

Wang v State of New South Wales [2014] NSWSC 909

Wang v State of New South Wales [2019] NSWSC 1332.

Wang v State of New South Wales [2019] NSWSC 1599

Wang v State of New South Wales [2020] NSWCA 21

Wang v State of New South Wales [2023] NSWCA 124

Wang v State of New South Wales (No 2) [2020] 64

Wang v State of New South Wales (No 3) [2020] 148

Wang v State of New South Wales (No 4) [2020] 171

Category:

Principal judgment

Parties:

Li Wang (Plaintiff)
State of New South Wales (First Defendant)
Commonwealth of Australia (Second Defendant)

Representation:

Counsel:
N Bentley (Defendant)
Solicitors:
Li Wang (self-represented)
Crown Solicitors (First Defendant)
Attorney General Solicitors (Second Defendant)

File Number(s):

2023/199785

Publication restriction:

Nil.

JUDGMENT

1. Ms Wang brought these proceedings in June 2023, pursuing a claim for damages for personal injury and economic loss she claims she suffered after she was assaulted by her landlord in 2004. She contends that the State is vicariously liable for actions later taken by Senior Constable Kennedy, which resulted in the dismissal of the proceedings brought against her landlord, for want of evidence.

2. Ms Wang also seeks damages which she claims resulted from actions of the Registry of this Court and the Crown Solicitor’s office. They include legal costs which she incurred in proceedings she commenced in this and other courts in 2008, 2009, 2010, 2012, 2013, 2019, 2020, 2022 and 2023. Her claims include that the State took various illegal steps in those proceedings, including by the pursuit of illegal motions, which resulted in illegal and even forged judgments, as well as costs orders which she had no money to pay.

3. Complaints Ms Wang advances against the Commonwealth concern proceedings which she unsuccessfully pursued in the High Court. It has filed a submitting appearance.

4. This judgment deals with the State’s August 2023 motion, supported by affidavits sworn by Mr Gates, a solicitor employed in the office of the Crown Solicitor. It seeks orders under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), striking out the proceedings, as well as other orders, in the alternative.

The parties’ cases

5. The State’s case was that this was yet a further impermissible attempt by Ms Wang to pursue claims which have previously been dismissed, advanced on the basis of arguments rejected by the Court of Appeal, by which the parties and the Court were bound.

6. There was no issue about the course of the litigation which Ms Wang has unsuccessfully pursued to this point, explained in Mr Gate’s affidavits.

7. Ms Wang appeared unrepresented at the hearing. The State had arranged for an interpreter to be present, but despite what she had said in the written submission she relied on about her English language problems, she declined to avail herself of that assistance, insisting that her case was adequately explained in her written submission and November 2023 affidavit. While she had earlier filed another affidavit in these proceedings, she did not rely on it to advance her case.

8. Ms Wang again defended the orders the State sought on the basis that contrary to the applicable requirements of the Rules, its motion had not been signed by Karen Smith, the Crown Solicitor herself. The result, she contended, was that it had had no solicitor to carry on these proceedings and the orders it sought could not legally be made.

9. Ms Wang has already unsuccessfully advanced similar arguments to resist the orders which the State pursued before Bellew J, in the proceedings she had brought in 2022. There she sought to pursue similar claims to those which she seeks again to advance in these proceedings, but his Honour concluded that her statement of claim disclosed no reasonable cause of action and was an abuse of process, it being her seventh attempt to pursue such proceedings. He was also satisfied that pleading an amendment could not cure that abuse and that the Rules regulating the signing of documents could not be construed in the way for which Ms Wang contended: Wang v State of New South Wales & Ors [2022] NSWSC 1700.

10. Ms Wang’s application for leave to appeal against that judgment was dismissed: Wang v State of New South Wales [2023] NSWCA 124.

11. Ms Wang’s case was that the conclusions which Bellew J had arrived at, that the arguments she had advanced about the Rules, that notices of appearance and other documents filed by the State in court proceedings had to be signed personally by Ms Smith, the Crown Solicitor and not by a solicitor employed in her office could not be accepted, were wrong: see at [27]-[31].

12. Further, that despite the Court of Appeal concluding at [10] of its judgment, that there was no error in his Honour’s conclusions about these requirements of the Rules, Ms Wang contended that could not change the law, with the result that the orders which the State sought could not lawfully be made.

The orders sought must be made

13. I am satisfied that this cannot be accepted.

14. The proceedings Ms Wang first brought in the District Court in 2008 concerned her complaints about the alleged improper actions of Senior Constable Kennedy. They were dismissed for want of due despatch.

15. The 2009 proceedings she and her husband Mr Liu then pursued in this Court about these matters were struck out by Hulme J: Wang v State of New South Wales [2009] NSWCA 340. Leave to appeal was granted to Ms Wang and she was given leave to pursue her claim in respect of the conduct of Senior Constable Kennedy: Wang v State of New South Wales [2010] NSWCA 209. Her special leave application in respect of this judgment was refused in November 2010: Wang & Anor v State of New South Wales [2010] HCASL 273.

16. In December 2010 Ms Wang and Mr Liu commenced further proceedings about the 2004 events in this Court. His statement of claim was dismissed and she was referred for pro bono legal assistance, which she did not pursue: Wang v State of New South Wales [2011] NSWSC 609. Her statement of claim was eventually also dismissed: Wang v State of New South Wales [2011] NSWSC 882. Her appeal was also later dismissed: Wang v State of New South Wales [2011] NSWCA 321. As was her further special leave application to the High Court: Wang & Anor v State of New South Wales [2012] HCASL10.

17. In July 2012 Ms Wang and Mr Liu brought yet further proceedings which concerned events which had occurred during the course of their earlier litigation. They were dismissed in April 2013: Wang v State of New South Wales [2013] NSWSC 386.

18. In April 2013 Ms Wang’s daughter brought further proceedings about the 2004 events as her tutor. There was an unsuccessful mediation in 2014 and after other interlocutory hearings, in July 2014 her daughter was removed, Mr Liu was appointed as Ms Wang’s tutor and the proceedings were stayed until a notice of appearance was filed by a solicitor: Wang v State of New South Wales [2014] NSWSC 909. Leave to appeal was refused: Wang v State of New South Wales [2014] NSWCA 373. As was the further special leave application: Wang & Anor v State of New South Wales [2015] HCASL 45. An attempt to further appeal the July 2014 orders also failed.

19. In July 2019 Ms Wang commenced further proceedings about the events of 2004. Orders precluding her filing any notice of motion without leave of the Court were made in October: Wang v State of New South Wales [2019] NSWSC 1332. In November the proceedings were stayed until her tutor was represented by a lawyer: Wang v State of New South Wales [2019] NSWSC 1599. Her application for leave to appeal was refused, as were three applications to set aside previous decisions: Wang v State of New South Wales [2020] NSWCA 21; Wang v State of New South Wales (No 2) [2020] 64; Wang v State of New South Wales (No 3) [2020] 148; and Wang v State of New South Wales (No 4) [2020] 171. Her further special leave application was also refused in December 2020: Wang v State of New South Wales& Anor [2020] HCASL 266.

20. In February 2022 Ms Wang filed a notice of discontinuance of the 2019 proceedings, which she did not serve on the State and to which it did not consent. The proceedings against the Commonwealth were later dismissed and the other orders earlier made, including that the proceedings were stayed until her tutor was represented by a lawyer, were reissued.

21. In June 2020 Ms Wang commenced further proceedings about the events of 2004 against the State and the ‘Australia Government’, but there were service problems and her application for summary judgment was refused. Further orders were made in May: Li Wang v State of NSW [2022] NSWSC 544. It was in December 2022 that Bellew J dismissed those proceedings, accepting that they involved an abuse and that the Rules could not be construed in the way for which she contended and in 2023 that Ms Wang’s application for leave to appeal was refused, as earlier explained.

22. Applications for orders under the Vexatious Proceedings Act 2008 (NSW) were then foreshadowed but have not been pursued against Ms Wang. There was thus no impediment which such orders would pose for Ms Wang commencing these proceedings in June 2023. But that she again commenced proceedings in order to pursue claims which have already been dismissed in earlier proceedings, as I have explained, did present a difficulty, resulting as it did in the State again seeking orders dismissing these further proceedings.

23. There is no question that the Court has the power to dismiss proceedings which are frivolous or vexatious or involve an abuse of process: r 13.4(1). The stringent test which must be satisfied on such an application is long settled: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130. Namely, that there must be real certainty that the case is so untenable that it cannot succeed.

24. That can be established even where the pleaded cause of action may be good, when its pursuit otherwise involves an abuse of process: Agius v The State of New South Wales [2001] NSWCA 371 at [24]. Thus, statements of claim must comply with the requirements of the Rules and parties are not entitled to receive unlimited opportunities to replead when they fail to adhere to them. They also cannot proceed on pleadings which are unintelligible, vague, or so general that the other party does not know what is alleged, because material facts are not pleaded, as the Rules require: see McGuirk v The University of New South Wales [2009] NSWSC 1424 at [21]-[39].

25. Permitting parties to proceed again in such circumstances would not be consistent with the requirements of s 56 of the Civil Procedure Act 2005 (NSW), which imposes obligations on the Court and the parties in relation to furthering the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings.

26. The history of Ms Wang’s unsuccessful pursuit of pleadings which fail to comply with the requirements of the Rules and her refusal to accept that she is bound by decisions of this Court about those requirements, including in relation to the signing of documents by a party’s legal representative, even when upheld on appeal, inevitably drive the conclusion that the orders which the State seeks must now be made.

27. The statement of claim which Ms Wang filed in these proceedings still does not adhere to the requirements of the Rules in relation to her claims about the events of 2004, because she has still not pleaded the material facts on which she advances her case. Further, her complaints about what she perceives to be the illegality both of steps taken by the State in earlier proceedings and judgments of the Court which have resulted, have already been considered and rejected, including on appeal.

28. Bringing further proceedings in order to advance such claims again is not an available basis on which earlier judgments of this Court and of the Court of Appeal can be challenged. Its orders are binding and the conclusions it has reached on which those orders rest cannot be successfully challenged in these proceedings.

29. Ms Wang undoubtedly has never waivered in her beliefs. Not only that she has a good case to advance about the events of 2004, given how she has repeatedly sought to pursue those claims, but that judges of this Court and the Court of Appeal were incorrect in their views about the operation of the Rules, including those which regulate how documents and pleadings filed in proceedings commenced in this Court must be signed.

30. The Court has referred Ms Wang more than once for pro bono legal assistance, to help her meet the requirements of the Rules. She has refused such assistance and has seemingly been unable, herself, to fund legal representation, or to take the steps which all litigants must take, to pursue their litigation in accordance with the applicable requirements of the Rules.

31. This is entirely regrettable, as is the result, that none of the proceedings Ms Wang has brought have resulted in a hearing of her claims on the merits and that costs orders have nevertheless been made against her, which she does not believe she can afford to pay. But on the evidence that is the consequence of choices Ms Wang has made, not of illegality in steps taken by the State or error in decisions which various courts have made.

32. In all of the circumstances I have explained, I am satisfied that it must now be accepted that her pursuit of the claims she again seeks to pursue in these proceedings does involve an abuse of process which the Court cannot permit her to pursue further.

33. In the result the orders which the State seeks must be made.

Costs

34. The usual order under the Rules is that costs follow the event: r 42.1. In this case that is an order that Ms Wang bear the State’s costs of the proceedings, as agreed or assessed.

35. Unless the parties approach to be heard within 7 days, in which event they should file and serve short written submissions about the order that they seek, that will be the Court’s order.

Orders

36. For these reasons I order that:

1. The proceedings are dismissed.

2. Unless the parties approach to be heard within 7 days, in which event they should file and serve short written submissions about the order that they seek, Ms Wang is to bear the State’s costs of the proceedings, as agreed or assessed.

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Decision last updated: 07 December 2023