Wang v Vaughan

[2016] NSWSC 1430

Supreme Court

New South Wales

Medium Neutral Citation:	Wang v Vaughan [2016] NSWSC 1430
Hearing dates:	26 September 2016
Date of orders:	26 September 2016
Decision date:	26 September 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Summons dismissed.  (2) Order the plaintiff to pay the defendant's costs of the proceedings, which include the defendant's costs of the notice of motion filed on 19 September 2016, and the hearing before Beech-Jones J on Friday the 9 September 2016.
Catchwords:	PRACTICE AND PROCEDURE – summons seeking to appeal against seven separate decisions – notice of motion seeking dismissal of proceedings pursuant to UCPR r 13.4 – no jurisdiction to entertain appeal against any of decisions identified by plaintiff – summons dismissed
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Category:	Principal judgment
Parties:	Yun Fu Wang (Plaintiff) Michael John Vaughan trading as Johnston Vaughan (Defendant)
Representation:	Counsel: Plaintiff in person M Hammond (Defendant)   Solicitors: Colin Biggers & Paisley Pty Ltd (Defendant)
File Number(s):	2016/260513

Judgment: EX TEMPORE

1. By notice of motion filed on 19 September 2016 the defendant seeks an order that the proceedings be dismissed in accordance with Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 13.4(b) on the basis that no reasonable cause of action is disclosed. The defendant also seeks an order that the plaintiff pay the defendant's costs.

2. These proceedings were commenced by summons filed on 30 August 2016. The summons was returnable on Friday 9 September 2016 before Beech-Jones J as the duty judge. On that occasion the defendant sought that the summons be struck out under UCPR r 13.4. His Honour considered the application to be apparently well-founded. However, his Honour adjourned the application to dismiss the proceedings until today on the basis that the plaintiff's command of English was not such that he could make himself comprehensible, either to his Honour or to the court reporter without an interpreter.

3. The plaintiff arranged for an interpreter to be present today. The interpreter, who I am satisfied is duly qualified, is also called Mr Wang, but I am assured by the interpreter that there is no relationship between him and the plaintiff. The interpreter has helped the plaintiff to make his submissions comprehensible, and for that I am grateful.

4. The summons is difficult to understand. It identifies that a decision in the District Court has been challenged. However, the plaintiff clarified before me today that in fact he seeks to appeal against the following seven decisions:

1. A decision of Mr Philip Harvey, a Workers' Compensation Commission Arbitrator on 3 August 2007 in respect of which the plaintiff’s application for leave to appeal to the Workers’ Compensation Commission was refused on 26 February 2008 (Yun Fu Wang v Botany View Hotel [2008] NSWWCCPD 25);

2. A decision of Hislop J on 2 December 2011 (Wang v Botany View Hotel [2011] NSWSC 1487);

3. A decision of Campbell J on 19 July 2013 (Wang v Vaughan [2013] NSWSC 1016);

4. A decision of the Court of Appeal on 6 March 2015 (Wang v Johnston Vaughan [2015] NSWCA 35);

5. A decision of Button J on 29 October 2015 (Wang v Dlakic [2015] NSWSC 1590);

6. A decision of Magistrate Farnan of the Local Court made on 14 June 2016, in which his Honour dismissed the plaintiff's statement of claim and ordered the plaintiff to pay the defendant's costs as agreed or assessed;

7. A decision of the Registrar of the District Court on 4 August 2016, in which the Registrar dismissed Mr Wang's summons challenging the decision of Magistrate Farnan on the basis that the District Court had no jurisdiction to entertain the appeal.

5. The background of the dispute between the plaintiff and the defendant has been helpfully set out by Emmett JA in (4) above. It appears that the defendant acted as a solicitor for the plaintiff in unfair dismissal proceedings some time ago, and that this has given rise to a stream of allegations made by the plaintiff against the defendant, and has resulted in the commencement of a number of proceedings of which the present is the most recent example.

6. UCPR r 13.4 empowers the Court to order that proceedings be dismissed, either generally, or in relation to a particular claim. The basis identified by the defendant in the notice of motion is that no reasonable cause of action is disclosed. There is a degree of overlap between the grounds in UCPR r 13.4. Mr Hammond, who appeared for the defendant, also relied on the other grounds in UCPR r 13.4 in support of the defendant’s application for dismissal.

7. In my view the particular form of words which is used to describe the summons filed on 30 August 2016 is not significant. It is not only unclear but, in parts, incomprehensible. This Court’s jurisdiction to entertain an appeal against any of the decisions listed above has not been identified. I have no jurisdiction to review any decision of the Court of Appeal, or any decision made by a single judge of the Common Law Division. That covers the Court of Appeal decision ((4) above), and the decisions of Justices Button ((5) above), Hislop ((2) above) and Campbell ((3) above).

8. In respect of (1), the basis of this Court’s jurisdiction has not been identified. As for the decisions of Magistrate Farnan, and the Registrar of the District Court, no error of law such as would found this Court's jurisdiction in a matter of this nature has been identified.

9. Accordingly, on the basis of the form and substance of the summons I am satisfied that these proceedings ought be dismissed under UCPR r 13.4. It does not appear to me that there is any reason whatsoever why costs ought not follow the event.

Orders

10. I make the following orders:

1. Summons dismissed.

2. Order the plaintiff to pay the defendant's costs of the proceedings, which include the defendant's costs of the notice of motion filed on 19 September 2016, and the hearing before Beech-Jones J on Friday the 9 September 2016.

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Decision last updated: 06 October 2016