Wei-Qing Ma v MSM Corporation International Ltd

[2016] NSWSC 1094

Supreme Court

New South Wales

Medium Neutral Citation:	Wei-Qing Ma v MSM Corporation International Ltd [2016] NSWSC 1094
Hearing dates:	03/08/2016
Date of orders:	03 August 2016
Decision date:	03 August 2016
Jurisdiction:	Equity
Before:	McDougall J
Decision:	See at [18], [22], [23].
Catchwords:	PROCEDURE – whether proceedings should be dismissed – whether statement of claim properly verified – where plaintiff resides in People’s Republic of China and does not have legal representation – whether another natural person has capacity to represent the plaintiff
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Wei-Qing Ma (Plaintiff) MSM Corporation International Ltd (First Defendant) Charles Victor Alexander (Second Defendant) Yue Ming Shen (Third Defendant)
Representation:	Counsel: S J Zhao (Appearing for the plaintiff by leave on this occasion) R C Gration (Second and Third Defendants)   Solicitors: Jurisbridge Legal (Second and Third Defendants)
File Number(s):	2015/308403

Judgment   (EX TEMPORE – REVISED 3 AUGUST 2016)

1. HIS HONOUR: The plaintiff is a national of the People's Republic of China and lives in that country. She claims to have lent substantial sums of money to the first defendant and to have done so by reason of representations made to her by the second and third defendants.

2. She sued the first defendant to recover the balance of the loans said to be outstanding. Against the second and third defendants, the plaintiff asserts that they have been guilty of misleading or deceptive conduct, in connection with the loans, and claims damages accordingly. There are also claims in relation to a trust fund, but the nature of those claims is at best obscure.

3. The matter has had an unhappy procedural history. However, it has got to a stage where, it seems, the plaintiff has accepted that her claim against the first defendant is barred by a deed of company arrangement into which that defendant entered some time ago. Her claim against the second and third defendants has not yet been resolved.

4. The verification of the statement of claim was made not by the plaintiff herself but by a Mr Zhao, who is or purports to be her attorney.

5. The second and third defendants were concerned at that form of verification. They sought and obtained an order that the plaintiff herself make an affidavit verifying her statement of claim. Such an affidavit (or a document purporting to be such an affidavit) was filed on 29 June 2016. On its face, it does not appear to be a declaration or affidavit made by the plaintiff, given that her address is stated as being in the People's Republic of China but the witness to the affidavit is Mr Zhao, who lives at Granville in this state. Further, it does not appear that Mr Zhao has any capacity (for example, as a Justice of the Peace) to administer an oath.

6. The plaintiff had been represented by solicitors. One firm ceased to act. She appointed another firm. That firm also ceased to act. Mr Zhao has taken to representing the plaintiff in Court, pursuant to leave granted on specific occasions to do so.

7. When the matter was last before the Court on 21 July 2016, Mr Zhao handed up what was said to be a copy of a handwritten document made and signed by the plaintiff. In that document the plaintiff (if it were her document) said that she lives in China, it is very expensive to travel to Australia and she is nearly 60 years old. She said, further, that she has incurred very substantial expense in relation to this litigation. Accordingly, she said, she no longer wants to have lawyers acting for her, and wants Mr Zhao to "act the law affair whom as a plaintiff", apparently because he “is substance plaintiff”.

8. The document refers to other matters. Most of them are not important. However, the key feature for present purposes is that the document states that the plaintiff declares her wish no longer to be a plaintiff and wishes Mr Zhao to be a plaintiff in her place.

9. When that matter was put before the Registrar on the last occasion, 21 July 2016, he was not surprisingly somewhat concerned. Accordingly, he stood the matter over until today, and ordered that the plaintiff was to appear either in person or by an appropriately qualified legal representative. He ordered, further, that the plaintiff should file and serve a proper affidavit verifying her statement of claim.

10. The matter came back before the Registrar today. It became apparent that the plaintiff had not complied with those orders made on 21 July. Accordingly, the Registrar of her own motion referred the matter to me as Duty Judge.

11. Mr Zhao seeks again to appear today for the plaintiff. He says that he is authorised to do so by reason of UCPR r 7.1(1), (1A). Further, he says, he has tried to retain a lawyer but does not want to do so because "it will cost big money". He says that the plaintiff cannot travel to Australia because she is "big sick" and "have to lie in bed".

12. The starting point is that the Rules on which Mr Zhao relies give no right to a person to appear on behalf of another. Subrule (1) authorises a natural person to commence and carry on proceedings either by a lawyer or in person. Subrule (1A) provides for a situation where an attorney under power instructs a lawyer to commence proceedings on behalf of the donor of the power. Neither of those rules is in its terms applicable.

13. There has been no appeal against the orders made by the Registrar on 21 July 2016. In my view, taking into account the document handed up by Mr Zhao on that day and the unsatisfactory nature of the document purporting to be the affidavit verifying the statement of claim, the Registrar was abundantly justified in making those orders.

14. It is clear that a natural person, not being a lawyer, has no right to represent another natural person in Court proceedings. There is a practice whereby a "McKenzie friend" may assist a natural person in Court. That is not this case because the plaintiff is not here herself. There is also undoubtedly power in the Court to grant leave to a natural person to represent another natural person in Court where the interests of justice require that this be done. However, that cannot amount to an unqualified privilege to such a natural person to conduct the whole of the proceedings on behalf of the other.

15. There are many unsatisfactory aspects of the matter. One is the apparent declaration by the plaintiff that she no longer wishes to be a plaintiff. Another is the unsatisfactory nature of the affidavit verifying the statement of claim. Another is that the plaintiff has not complied with the Registrar’s orders made on the last occasion.

16. In those circumstances, it seems to me, the interests of justice require that this issue be resolved one way or the other in the near future. As it seems to me, the appropriate way to do that is to extend the time for the plaintiff to comply with the Registrar's orders made on 21 July 2016 but to grant the second and third defendants leave to move to have the proceedings dismissed for want of prosecution or otherwise if those orders are not complied with.

17. Further, I should record my own view (I say this because the matter will not come back before me) that if the plaintiff does not comply with the orders I am about to make, the proceedings should in any event be dismissed for default in compliance with orders of the Court. I express no more than my own view to that effect because it may be that when the matter comes back, the Registrar or another Judge of the Court may take a different view depending on what is then put before the Court.

18. In those circumstances I make the following orders:

1. I extend up until 5pm on 25 August 2016 the time within which the plaintiff is to comply with order 2 made on 21 July 2016.

2. I list the matter for directions before the Registrar on 29 August 2016.

3. I direct that on 29 August 2016 the plaintiff either appear in person or appear by an appropriately qualified legal practitioner.

4. In the event that the plaintiff makes default in complying with these orders, I give leave to the defendant to move on 29 August 2016 for an order dismissing the proceedings or for such other orders as the second and third defendants may be advised are appropriate.

19. The second and third defendants ask for their costs of 21 July 2016 and today.

20. On 21 July 2016 the matter should have moved forward. It was effectively a wasted appearance, because of the unsatisfactory aspects of the conduct of the plaintiff's case to which I referred earlier. Today again was totally wasted because of the plaintiff's non-compliance with the orders made on 21 July 2016.

21. In those circumstances it seems to me appropriate that the second and third defendants should have their costs, and that those costs should be paid on the indemnity basis. I say that because to the extent that an order for costs is capable of compensating the second and third defendants for the waste of time and effort, it should do so.

22. I order the plaintiff to pay the second and third defendants costs of 21 July 2016 and today. I order that those costs be assessed on the indemnity basis.

23. I direct that they may be assessed forthwith.

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Decision last updated: 09 August 2016