FEDERAL COURT OF AUSTRALIA Wang v Botany View Hotel [2014] FCA 730 Citation: Wang v Botany View Hotel [2014] FCA 730 Appeal from: Application for extension of time: Wang v Botany View Hotel [2014] FCCA 850 Parties: YUN FU WANG v BOTANY VIEW HOTEL File number(s): NSD 551 of 2014 Judge(s): JAGOT J Date of judgment: 8 July 2014 Catchwords: PRACTICE AND PROCEDURE – primary judge dismissed proceedings as frivolous or vexatious, abuse of process and for applicant's failure to comply with court order – applicant filed several voluminous and incomprehensible documents – whether extension of time should be granted to seek leave to appeal primary judge's decision Legislation: Federal Circuit Court Rules 2001 (Cth) rules 1.03, 13.03A, 13.03B, 13.10 Federal Court of Australia Act 1976 (Cth) s 24 Federal Court Rules 2011 (Cth) rules 35.13, 35.14 Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Burton v Shire of Bairnsdale (1908) 7 CLR 76 Croker v Philips Electronics Australia Ltd [2000] FCA 1731 DÉcor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Deighton v Telstra Corp [1997] FCA 1568 Hunter v Chief Constable of West Midlands Police [1982] AC 529; [1981] 3 All ER 727 Paramasivam v University of New South Wales [2006] NSWSC 1189 Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802 Date of hearing: 30 June 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 22 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr C E Dezarnaulds Solicitor for the Respondent: Dezarnaulds Legal IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 551 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: YUN FU WANG Applicant AND: BOTANY VIEW HOTEL Respondent JUDGE: JAGOT J DATE OF ORDER: 8 July 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application for extension of time and leave to appeal filed on 30 May 2014 be dismissed. 2. The applicant pay the respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 551 of 2014 ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA BETWEEN: YUN FU WANG Applicant AND: BOTANY VIEW HOTEL Respondent JUDGE: JAGOT J DATE: 8 July 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application pursuant to rule 35.14 of the Federal Court Rules 2011 (Cth) (the FCA Rules) for an extension of time and leave to appeal the orders of the Federal Circuit Court of Australia (FCC) summarily dismissing a proceeding with costs pursuant to rules 13.03B(1), 13.10(b) and 13.10(c) of the Federal Circuit Court Rules 2001 (Cth) (the FCC Rules) and pursuant to the Court's inherent jurisdiction to regulate its own process (Wang v Botany View Hotel [2014] FCCA 850). 2 The applicant, Mr Wang, was previously an employee of the respondent, Botany View Hotel, with whom he has been engaged in numerous proceedings since 2007 in the Workers Compensation Commission, the Supreme Court of New South Wales and the Federal Magistrates Court (now the FCC) in which, on each occasion, he has been unsuccessful. He has also unsuccessfully sought to appeal various of those decisions in the Federal Court, the New South Wales Court of Appeal and has been sought and been refused special leave to appeal to the High Court. Each of those proceedings concerned the same subject matter, being an injury which Mr Wang sustained in the course of his employment but which was held by the Workers Compensation Commission not to have been substantially contributed to by his employment, a finding which was not disturbed by any of the courts in which Mr Wang subsequently commenced proceedings. 3 The primary judge described the application by which Mr Wang commenced proceedings in the FCC in the following terms (at [5]): The grounds of the application and the orders sought were so incomprehensibly drafted that it was impossible to understand what relief was sought and the basis upon which the applicant sought that relief. The final orders sought and the grounds identified in support of those orders are as follows: Final Orders Sought: 1. Seymour v Sainal (2006) arbitrator taken evidence refused disability established 2. S.151A(3)(6) 1987 Act Commission Registry failure must give permanent outside worker insert [?] in repeal, The Workplace Compensation Act 1997. 3. Dinkua v Lipscombe (2006) under employer contract with judicial and recovered reward as well as under award industrial Relation Act (Qld) ss.278,399 Grounds of Application: 1. Commission determination engagement to aggravation injury, all [illegible] are contraventions. 2. Commission held supreme order to dismiss and disclose Federal settlement cause outside. 3. The employer also is a Worker compensation solicitor, he from knowingly made false recklessly had 10 years, he identifies slip injury but 3 times refused pay recovered reward. Interlocutory Orders Sought: 1. DPP v ESSO, Employer from knowingly made false 3 time refused pay recovered award pay 1.65 million time 25% is $404,500 enforce pay by TPC Act 2. Commission registry a) 7 day lodge Reply dismiss, b) no on foot dismiss c) hold d) hold supreme court order dismiss E) disclose Federal settlement $5000 x 4. Reopen my file 3. Commission correct all basic error, pay $55,000" 4 The originating application was accompanied by an affidavit containing, without explanation, some 121 unpaginated pages of annexures. Mr Wang subsequently filed two further affidavits which were similarly incomprehensible. The primary judge described the first directions hearing, which occurred on 8 November 2013, in the following terms (at [9]): I endeavoured without success to explore with the applicant the nub of his complaint and the purpose and basis for this proceeding. On that occasion, the applicant was ordered to file and serve a fully particularised Statement of Claim by 6 December 2013. The applicant was further ordered not to file any other document without the leave of the Court. The applicant was provided with a copy of r.16 of the Federal Court Rules 2011 (Cth) in relation to the drafting of pleadings. 5 The applicant failed to comply with either of those orders. On two further occasions, he was again ordered to file a fully particularised statement of claim. He did ultimately file a document titled "statement of claim" but, before doing so, twice attempted to file interlocutory applications and successfully filed a document titled "Reply" which the primary judge described (at [15]) as: well over 100 pages in length and appeared to attach many of the documents annexed to previous affidavits. The document was headed "Order Thought," being a 15 page, single-spaced, small font incomprehensible document that in no way reflected a Reply as contemplated by the Rules. 6 As to the document purporting to be Mr Wang's statement of claim, the primary judge said: On 11 April 2014, the applicant filed a document headed Statement of Claim. In no other respect does it comply with the Rules of the Court. It is a prolix, dense, incomprehensible and embarrassing document that appears to be a mixture of incoherent assertions and submissions. 7 Shortly after Mr Wang filed his statement of claim, the respondent filed an interlocutory application seeking dismissal of the proceedings pursuant to rule 13.03B or 13.10 of the FCC Rules or pursuant to the Court's inherent jurisdiction. The supporting affidavit sworn by the respondent's solicitor deposed to the following grounds for dismissal: (1) Mr Wang had failed to comply with the orders made by the FCC requiring him to file a fully particularised statement of claim. The document purporting to be a statement of claim filed by Mr Wang on 11 April 2014 did not comply with either the FCC Rules or the FCC orders. (2) The proceeding was an attempt by Mr Wang to re-litigate matters finally decided by another Court. He "has filed a number of applications in various jurisdictions concerning related subject matter to the present subject matter and on each occasion the court has rejected his application and made orders for costs against him." Accordingly, the proceedings had no reasonable prospect of success, were frivolous or vexatious and an abuse of the Court's process and should be dismissed pursuant to rule 13.10 or pursuant to the Court's inherent jurisdiction to regularise proceedings before it. 8 Approximately a week later, Mr Wang filed an affidavit which the primary judge described in the following terms (at [21]): It is not clear what the purpose of the affidavit is. Again the content is embarrassing in that it does not disclose with any clarity whatsoever the substance of the affidavit or its relevance. I understand from what the applicant said at the directions hearing on 29 April 2014, that the substance of the assertion by the applicant [is] that the respondent had not prepared the respondent's evidence in accordance with the correct rules of Court. However, the relevance of the substance of that complaint was not in any way clarified by the applicant and was not assisted by his somewhat erratic demeanour in Court. 9 Rules 13.03A, 13.013B and 13.10 of the FCC Rules are relevantly as follows: Rule 13.03A (1) For rule 13.03B, an applicant is in default if the applicant fails to: (a) comply with an order of the Court in the proceeding; or (b) file and serve a document required under these Rules; or … Rule 13.03B(1)(a) Orders on default (1) If an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; ... Rule 13.10 Disposal by summary dismissal The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or (b) the proceeding or claim for relief is frivolous or vexatious; or (c) the proceeding or claim for relief is an abuse of the process of the Court." 10 The primary judge (at [22] to [28]) considered the principles relevant to an application for summary dismissal on the grounds raised by the respondent, and their application to Mr Wang's conduct of the proceeding. The following passages are significant: [22] The Court has a responsibility to the overriding interests of justice to both parties. The opportunities that the applicant has been given, in my view, are more than ample to enable him to obtain legal advice and to otherwise comply with the orders of the Court in pleading his case. [23] Section 42 of the Federal Circuit Court Act 1999 (Cth) requires the Court to endeavour to ensure that proceedings are not protracted. Moreover, it is well established that cases need to be dealt with expeditiously if they are to be dealt with justly (see: Bi v Mourad [2010] NSWSC 17 at [47] per Allsop J). [24] I find that the applicant's conduct demonstrates an unwillingness to cooperate with the Court and the respondent. The applicant's non-compliance of directions made by the Court causes unnecessary delay, expense and prejudice to the respondent. Such conduct is unjustifiably oppressive to the respondent. … [26] In Paramasivam v University of New South Wales & Ors [2006] NSWSC 1189 at [24], Sully J said as follows: "I say again, and say it with emphasis, it is time that all litigants understood that it is no part of the judicial duty to accept an undifferentiated mass of documentary material as though it were a matter of course that the Judge will simply wade through it hoping that, after hours or, in a case of the present kind, days, of reading at large, he will somehow manage to identify correctly what the parties thought they were putting before him in the first place." 11 Ultimately, the primary judge concluded: [29] I have no confidence that the present matter, if it was to proceed to final hearing, would be properly pleaded in the way I have sought to direct in the past such that the respondent and the Court would understand the applicant's claims, and the juridical basis for those claims, and the relief that the applicant seeks. This Court does not have the resources to indulge such an applicant and, indeed, in my view, to indulge such conduct and behaviour would be antithetical to the need to maintain public confidence in the judicial system at large. [30] The applicant has failed to comply with the orders of this Court. I am satisfied that to allow the applicant's proceeding to continue as it presently stands is frivolous, vexatious, and an abuse of the Court's process. [31] There has to be an end to the opportunities given to the applicant to identify a case in accordance with the Rules. The opportunities provided by the Court have been ignored by the applicant. As stated above, the applicant was provided with the contact details of legal services providers and translation and interpreting service in documents headed in his own language and encouraged at every direction hearing to seek legal advice. [32] In my view, to allow the continuation of this proceeding against the respondent is unfair and unjustifiably oppressive and constitutes an abuse of process. Its continuation is likely to bring the administration of justice into disrepute among right-thinking people. [33] The orders that I propose to make have been considered in the light of the knowledge that the power to dismiss cases summarily ought to be very sparingly exercised and only in exceptional cases (see: Sea Culture International v Scoles [1991] FCA 523 at [12] per French J). It is well recognised that what amounts to an abuse of Court process is insusceptible of a formulation comprising closed categories (see: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [265] per Gleeson CJ, Gummow, Hayne and Crennan JJ). [34] In the circumstances, I am satisfied that the applicant is in default, pursuant to r.13.03A(1)(a) of the Rules. The orders sought by the respondent are appropriate on all the bases identified by the respondent`. [35] Accordingly, the proceeding commenced by way of application on 21 August 2013 should be dismissed with costs, pursuant to r.13.03B(1), r.13.10(b) and (c) of the Rules and pursuant to the inherent jurisdiction of the Court to regulate its processes in the interests of justice. 12 As an appeal from an interlocutory decision of the FCC, leave is required to appeal to this Court (Federal Court of Australia Act 1976 (Cth) s 24(1A)) and the application for leave must be made within 14 days after the date on which the judgment was pronounced or order made (FCA Rules rule 35.13). Mr Wang did not file his application for leave until 30 May 2014, approximately 30 days after the making of the 28 April 2014 orders and more than 15 days after the time set by Rule 35.13. Accordingly, he also seeks an extension of time pursuant to rule 35.14. 13 The question whether to grant an extension of time pursuant to rule 35.14 of the FCA Rules involves a consideration of the likelihood of leave to appeal being granted and whether there is a satisfactory explanation for the delay (Deighton v Telstra Corp [1997] FCA 1568; Croker v Philips Electronics Australia Ltd [2000] FCA 1731). As to prospects of successfully obtaining leave to appeal, the test is essentially the same as for granting of leave itself: (i) whether the decision from which the applicant seeks to appeal is attended with sufficient doubt to warrant its being reconsidered by an appellate court, and (ii) whether substantial injustice would result if leave were to be refused supposing the decision to be wrong (DÉcor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400; Sharman License Holdings Ltd v Universal Music Aust Pty Ltd [2005] FCA 802). 14 Mr Wang's application for extension of time and leave to appeal as filed is 15 pages long and contains nothing resembling a ground of appeal. In addition, he has filed two affidavits, one of which annexes a large bundle of documents which is not paginated. The application and affidavit are of the same general character as the documents he filed in the FCC; they are almost entirely incomprehensible and the relevance of much of their contents is far from apparent. Among the annexures to Mr Wang's affidavit are the decisions of the Supreme Court of New South Wales, the Federal Magistrates Court, and the Federal Court and several documents apparently relating to those proceedings. The only thing that can be ascertained from Mr Wang's application to this Court, the body of his affidavits and the general nature of the documents he has annexed is that his central grievance concerns the same workplace injury which was the subject of his litigation in each of the courts referred to above and in the Workers Compensation Commission. He makes various vague references to some alleged fraudulent conduct, but it is entirely unclear what that conduct is or why it is said to have been fraudulent. He also appears to make a claim for unlawful or unfair dismissal, but it is not apparent on what basis other than that it has some connection with his injury. 15 At the hearing of his application in this Court, Mr Wang appeared in person, assisted by an interpreter. He was given a number of opportunities to say why it was he believed the primary judge's decision was wrong. Even with the assistance of an interpreter, Mr Wang was extremely difficult – indeed, almost impossible – to understand. He referred to the primary judge's decision being "contradictory of itself". However, when asked what in particular about the primary judge's decision was said to be self-contradictory, his response was unintelligible. He also made an assertion of bias, but it must be said that it was not entirely clear whether he was referring to the primary judge or to one of his various earlier proceedings in this and other courts. Ultimately, I was unable to discern from anything said by Mr Wang during oral submissions any matter of substance going to the merits of his proposed appeal. 16 Some days after the conclusion of oral submissions, Mr Wang sought to file a further affidavit and later sent a letter to the Court. Leave was not granted to file further evidence or submissions and the documents, garbled as they are, do not disclose any reason why it would be appropriate to permit Mr Wang to do so. In his letter, Mr Wang also sought leave to file an amended application, although it was not apparent what the proposed amendment was. To permit an amendment at this late stage in the proceeding without any explanation or indication as to its content would be inappropriate. Accordingly, leave should not be granted to Mr Wang to file the further documents or to amend his pleadings, and I have not had further regard to these documents. 17 Nothing in Mr Wang's application or other documents filed in this Court, or in anything said by him during oral submissions, discloses any particular allegation of error, legal or otherwise, on the part of the primary judge. It is appropriate to make two initial points. First, nowhere in the documents filed by Mr Wang is any legal cause of action, let alone one arising within Federal jurisdiction, disclosed or readily apparent. Second, to the extent that Mr Wang seeks to agitate a claim in respect of his workplace injury, it is difficult to see how he would be able to do so in the FCC. It is clear from the extracts of the decisions in the Supreme Court of New South Wales and the Federal Court as, well as the copies of those decisions annexed to the affidavit of Mr Murphy (the sole director of the respondent) in the proceedings below, that any claim arising out of Mr Wang's alleged workplace injury has been finally decided in another Court. Moreover, the injury occurred more than thirteen years ago. Accordingly, it is difficult to imagine any circumstance that would overcome the obvious issues of res judicata, issue estoppel or, indeed, any statutory limitation period. To the contrary, it seems apparent that any such claim would be doomed to fail. 18 It should be apparent from these initial observations that I do not consider there to be any doubt about the correctness of the primary judge's decision. The various voluminous materials filed in the FCC were incomprehensible and embarrassing. Mr Wang's conduct throughout the proceeding below and, in particular, his persistent filing of similarly embarrassing documents was such that continuation of the proceeding would be likely to cause unnecessary delay, expense and prejudice to the respondent. As I have said above, of the matters that can be discerned (and not without difficulty) from the documents filed by Mr Wang, none of them discloses any claim known to law or any reasonable prospect of success. In these circumstances, to permit such a proceeding to continue would be thoroughly unfair to the respondent and an abuse of the FCC's process. Further, regard was also to be had to the interests of other litigants in the FCC whose proceedings might be unfairly delayed by the continuation of Mr Wang's proceeding (rule 1.03 of the FCC Rules; Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27). There is no doubt the FCC had the power to dismiss Mr Wang's claim on this basis, whether pursuant to rule 13.10 of the FCC rules or pursuant to its inherent jurisdiction (Burton v Shire of Bairnsdale (1908) 7 CLR 76; Hunter v Chief Constable of West Midlands Police [1982] AC 529; [1981] 3 All ER 727). Nor is there any doubt that such a course was reasonably open to the primary judge. Indeed, in these circumstances it was an entirely appropriate course to take. 19 Moreover, I agree with the primary judge that the document styled "statement of claim" did not in any sense comply with her Honour's order that Mr Wang file a "fully particularised statement of claim". Mr Wang had been ordered on several occasions to file such a document and did not do so. The purpose of such an order was obvious. It was made in the hope of focussing Mr Wang's mind upon the issues he sought to raise in the FCC and to encourage him to articulate those issues in a comprehensible manner. Further, it was always open to Mr Wang to seek the advice and assistance of a legal practitioner in preparing a statement of claim. Mr Wang was not entitled to be provided an unlimited number of opportunities to plead his case or to proceed at his own leisure in the face of court orders setting out a timetable for the filing of documents. No criticism can properly be made of the primary judge's decision to dismiss the proceedings on this basis pursuant to rule 13.03B of the FCC Rules. 20 It should be apparent that I do not consider the appeal would enjoy any reasonable prospect of success. As there is no conceivable basis on which the appeal could succeed, I do not consider it necessary or appropriate to consider whether substantial injustice would be caused to Mr Wang were leave to be refused. To the contrary, I give weight to the discretionary consideration that, as matters stand, permitting such the appeal to proceed would cause further substantial unfairness, embarrassment, expense and delay to the respondent. 21 As to the explanation for Mr Wang's delay in bringing his application for leave, none is apparent from the material he has filed in this Court. In oral submissions he said it was because he had been "sick". He sought to tender what he described as "medical documents". The respondent objected to these two documents and I rejected them. They relate to the periods between the years 2000 and 2003 and the second document was not in English. These documents have no relevance to why he was late filing an application for leave to appeal in 2014. There is no reliable evidence to support Mr Wang's contention that he was delayed due to illness. Accordingly, I am also not satisfied that there is any reasonable explanation for the delay. 22 For these reasons, the application for an extension of time and leave to appeal should be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 8 July 2014