Wang v State of New South Wales (No 3)

[2020] NSWCA 148

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

On the papers

Date of orders:

20 July 2020

Decision date:

20 July 2020

Before:

Macfarlan JA
Payne JA

Decision:

(1) Dismiss Ms Wang’s notice of motion filed on 1 May 2020 with costs.

(2) Should Ms Li Wang seek to file any further application against the State of New South Wales or Mr Colin Hodgson in respect of any of the matters the subject of this Court’s decisions of 20 February 2020 and 20 April 2020 ([2020] NSWCA 21 and [2020] NSWCA 64) Ms Wang must at the same time file a document of no more than five pages showing cause why this Court should not in Chambers summarily dismiss the application as vexatious and an abuse of process.

(3) In lieu of the order made by this Court on 20 April 2020 that Ms Li Wang pay the costs of the State of New South Wales, order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that Ms Wang pay to the State of New South Wales the sum of $5,000 in respect of the State’s costs of Ms Wang’s notice of motion dated 3 March 2020.

Catchwords:

APPEALS – notice of motion by Wang seeking to reverse result of application for leave to appeal – attempt to re-agitate arguments previously put – notice of motion of same character previously dismissed – order to the effect of that made in Teoh v Hunters Hill Council

COSTS – notice of motion by State of NSW seeking specified gross sum order – Civil Procedure Act, s 98(4) – relevance of history of proceedings and likelihood of incurring further significant costs

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

Teoh v Hunters Hill Council (No 7) [2012] NSWCA 356

Category:

Procedural and other rulings

Parties:

Li Wang
State of New South Wales
Colin Hodgson

Representation:

Counsel:
Self-represented (Ms Wang)
A N Williams (State of New South Wales)

Solicitors:
Self-represented (Ms Wang)
Crown Solicitor’s Office (State of New South Wales)
Colin Biggers & Paisley Lawyers (Mr Hodgson)

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 J
Adamson J
Harrison AsJ

File Number(s):

2013/128929
2019/227867

Judgment

1. THE COURT: This judgment addresses two notices of motion, one filed by the State of New South Wales (“the State”) on 20 April 2020 and the other filed by Ms Li Wang on 1 May 2020.

2. Proceedings between these parties have a long history, some of which is referred to in our judgment of 20 February 2020 ([2020] NSWCA 21). By that judgment we dismissed an application by Ms Wang for leave to appeal. By our further judgment of 20 April 2020 we dismissed a motion filed by Ms Wang filed on 3 March 2020 to set aside the 20 February judgment. We concluded that the motion was simply an impermissible attempt by Ms Wang to re-argue her leave application which we dismissed on the earlier occasion. Ms Wang’s notice of motion of 1 May 2020, with which this judgment is in part concerned, is of the same character. By it, she seeks to re-agitate arguments she previously put. She has not advanced any sensible arguments in support of her new motion which the Court needs to address. As a result, Ms Wang’s notice of motion filed on 1 May 2020 should be dismissed with costs.

3. In addition, as sought by the respondents to Ms Wang’s motion, an order as follows, to the effect of that made by this Court in Teoh v Hunters Hill Council (No 7) [2012] NSWCA 356, should be made:

Should Ms Li Wang seek to file any further application against the State of New South Wales or Mr Colin Hodgson in respect of any of the matters the subject of this Court’s decisions of 20 February 2020 and 20 April 2020 ([2020] NSWCA 21 and [2020] NSWCA 64) Ms Wang must at the same time file a document of no more than five pages showing cause why this Court should not in Chambers summarily dismiss the application as vexatious and an abuse of process.

4. The repetition of essentially the same claim by Ms Wang, almost immediately after delivery of judgment in Wang (No 2), has persuaded us that such an order should be made.

5. We have not extended the order to any further steps that might be taken by Ms Wang at first instance, contrary to the respondents’ request. Whether an order having that effect should be made is a matter for a divisional judge to determine upon full information, which we do not have, about steps taken by Ms Wang at first instance.

6. The other notice of motion presently before the Court is the State’s motion filed on 20 April 2020 (which was the day on which we delivered the second of our judgments referred to above) seeking a specified gross sum order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), or alternatively an order that the State’s costs of the motion dealt with in that judgment of 20 April be paid on an indemnity basis.

7. The State’s motion is supported by an affidavit of Mr Raphael Hudson, a solicitor employed in the office of the Crown Solicitor. Mr Hudson identifies in detail the costs incurred by the Crown Solicitor on a solicitor and client basis. He then assesses the recoverable party/party costs as $10,281.60 but indicates that only a conservative amount of $5,000 is sought by the State as the subject of a gross sum costs order.

8. Mr Hudson’s lengthy experience as a solicitor qualifies him to make this assessment. He identifies the reasons for seeking the award as follows:

“[17] In my experience, costs assessment is a lengthy and costly process that rarely leads to recovery in respect of unrepresented litigants that do not have readily identifiable assets capable of satisfying the judgment debt. However, obtaining a costs judgment can provide a degree of protection against my client incurring further costs due to the abuse of the Court’s processes or actions by litigants in breach of the Court’s orders and directions.

[18] Based on my review of the conduct of these proceedings and related proceedings since 2008, I consider that it is reasonably likely that the appellant and or her tutor will seek to further agitate the present claim in new proceedings in a manner that will result in my client incurring further significant costs that are unlikely to be commercially recoverable.”

9. The reasons given by Mr Hudson for seeking the lump sum order are persuasive. We adopt them and shall make the order sought.

10. For these reasons, we make the following orders:

1. Dismiss Ms Wang’s notice of motion filed on 1 May 2020 with costs.

2. Should Ms Li Wang seek to file any further application against the State of New South Wales or Mr Colin Hodgson in respect of any of the matters the subject of this Court’s decisions of 20 February 2020 and 20 April 2020 ([2020] NSWCA 21 and [2020] NSWCA 64) Ms Wang must at the same time file a document of no more than five pages showing cause why this Court should not in Chambers summarily dismiss the application as vexatious and an abuse of process.

3. In lieu of the order made by this Court on 20 April 2020 that Ms Li Wang pay the costs of the State of New South Wales, order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) that Ms Wang pay to the State of New South Wales the sum of $5,000 in respect of the State’s costs of Ms Wang’s notice of motion dated 3 March 2020.

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