Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wang v State of New South Wales [2023] NSWCA 124 Hearing dates: 31 May 2023 Date of orders: 2 June 2023 Decision date: 02 June 2023 Before: Ward P; Kirk JA Decision: 1. Summons seeking leave to appeal dismissed with costs. Catchwords: CIVIL PROCEDURE – Appeal – Application for leave to appeal against summary dismissal of proceedings – Application for leave against costs orders – where applicant has history of instituting proceedings – where no error shown Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28 Vexatious Proceedings Act 2008 (NSW), ss 8(1), 8(4) Cases Cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Li Wang v State of NSW [2022] NSWSC 544 Macatangay v State of New South Wales [2012] NSWCA 374 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Muriniti v Lawcover Insurance Pty Ltd [2022] NSWCA 159 Pi v Pierce and Attorney General for NSW [2015] NSWCA 118 Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; (2016) 316 FLR 318 Wang v State of New South Wales (No 3) [2020] NSWCA 148 Wang v State of New South Wales [2020] NSWCA 21 Wang v State of New South Wales [2022] NSWSC 1700 Young v Hones (No 2) [2014] NSWCA 338 Category: Principal judgment Parties: Li Wang (Applicant) State of New South Wales (Respondent) Representation: Counsel: Li Wang (Applicant – in person) N Bentley (Respondent) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2023/00003513 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2022] NSWSC 1700 Date of Decision: 16 December 2022 Before: Bellew J File Number(s): 2022/00002581 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] JUDGMENT 1. THE COURT: By summons filed on 4 January 2023, the applicant (Li Wang) seeks leave to appeal from a decision of Bellew J delivered on 16 December 2022 (Wang v State of New South Wales [2022] NSWSC 1700), dismissing three notices of motion filed by the applicant (on 11 February 2022, 28 February 2022 and 17 May 2022, respectively), dismissing the substantive proceedings (on the first defendant's application), and ordering the applicant to pay the costs of the first defendant in those proceedings including the costs of the various motions. The first defendant in those proceedings was the State of New South Wales (the respondent to the present application) (the State). 2. The history of the litigation between the parties (described by the primary judge as long and tortured) is summarised by the primary judge in the primary judgment from [6]. In essence, the genesis of the litigation relates to complaints by the applicant as to her treatment by the police after the making by her of a complaint of physical and verbal abuse by her landlord. This has led to the commencement of numerous sets of proceedings by the applicant in the Court below and in this Court (as well as unsuccessful applications for special leave to appeal to the High Court in respect of certain of the decisions). 3. Before the primary judge, the applicant's notices of motion included, variously, complaints as to an asserted failure of the State to file an appearance within time in the latest set of proceedings commenced by the applicant in January 2022; the assertion that the appearance that was filed was incomplete due to the absence of the signature of the Crown Solicitor and was therefore an abuse of process; and the complaint that a decision of Rothman J on 5 May 2022 (Li Wang v State of NSW [2022] NSWSC 544) was delivered "illegally" and/or "irregularly" and/or was "an abuse of process", and further, was irregular because of the absence of certification of the judgment (see the primary judgment at [34]). 4. The grounds of appeal, for which leave is now sought to pursue, as set out in the draft notice of appeal are as follows: 1. Pursuant to r36.15 of the UCPR, the illegal decision 1 and 4 of 16 Dec 2022 should be set aside because it was made in the illegal motion of 23 Feb 2022. 2. Pursuant to r36.15 of the UCPR, the illegal decisions 2 and 3 of 16 Dec 2022 should be set aside because it was made in the illegal application – the written submissions of 9 Jun 2022. Pursuant to r 18.1 of the UCPR, the application for the court order to be by a motion. 3. Pursuant to r7.1(2) of the UCPR, the appearance is no legal representative for the respondent to sign in, therefor [sic] the respondent has no legal representative to commence and to carry on the proceeding, the respondent take [sic] no step in the proceedings and it is illegal to file the motion and the written submissions to the court. 1. The applicant's summary of argument and written submissions both raise issues as to the notice of appearance filed by the State in the 2022 proceedings (including as to the lack of signature of the Crown Solicitor). 2. The State opposes the grant of leave to appeal, contending that none of the appeal grounds has any merit, that no error in the House v The King (see (1936) 55 CLR 499; [1936] HCA 40 at 504-5 per Dixon J (as his Honour then was), Evatt and McTiernan JJ) sense (i.e., that the primary judge made an error of legal principle or a material error of fact, took into account an irrelevant consideration, failed to take into account or give sufficient weight to a relevant consideration, or arrived at a result so unreasonable or unjust as to bespeak such an error – see Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] per Heydon JA, with whom Sheller JA and Studdert AJA agreed; Choi v Secretary, Department of Communities and Justice [2022] NSWCA 170 at [91] per Ward P, Meagher and Leeming JJA) is shown; and that the matter does not involve a question of principle, a question of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] per Campbell JA, with whom Young and Meagher JJA agreed). Determination 1. The principles applicable in respect of applications for leave to appeal are well-known and, as the State has noted, leave to appeal will not be granted in respect of interlocutory decisions where the appeal is doomed to fail (see Young v Hones (No 2) [2014] NSWCA 338 at [63] per Bathurst CJ, Ward JA (as her Honour then was) and Emmett JA; Pi v Pierce and Attorney General for NSW [2015] NSWCA 118 at [11] per Ward JA). 2. Insofar as the applicant seeks to appeal from the interlocutory decision to dismiss her three notices of motion, the applicant must not only establish error in the House v The King sense but must also confront the difficulty that there is a well-recognised reluctance of appellate courts to review matters of practice and procedure (see Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ; Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; (2016) 316 FLR 318 at [29] per Barrett AJA). 3. Insofar as the applicant seeks to appeal from the summary dismissal of the proceedings (which was sought by the State pursuant to rr 13.4 and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)), again an error in the House v The King sense must be established to warrant appellate intervention (see Muriniti v Lawcover Insurance Pty Ltd [2022] NSWCA 159 at [76]-[79] per Gleeson JA and Griffiths AJA). 4. No error has been established in relation to the rejection by the primary judge of the applicant's complaints as to the notice of appearance that was filed (both as to the timing of the filing of the notice of appearance and as to its signature by a solicitor on behalf of the Crown Solicitor); and in any event, the complained of lack of compliance with the UCPR is a matter that would be appropriately dealt with by case management directions or otherwise dispensed with in appropriate circumstances. Nor is there any error in the primary judge's refusal of the complaint made as to certification of the judgment. There is no issue of principle or public importance that here arises; and no injustice in the requisite sense. 5. As to the summary dismissal of the substantive proceedings, again there is no error shown in the primary judge's statement of the applicable principles (see at [39]-[44]); nor in his Honour's reasons (see at [45]-[59]) for the conclusion that the statement of claim filed by the plaintiff discloses no reasonable cause of action and is an abuse of process. 6. The applicant has for some 14 years commenced successive sets of proceedings (and served numerous statements of claim) in relation to her complaint that her assault allegation was improperly investigated by the police. Insofar as the intentional tort claim is concerned, the State's complaint that it fails to include the necessary material facts to make out such an allegation has force, as is the submission that the claim would now be statute-barred. The deficiencies identified by the primary judge in the current pleading are apparent on its face. Insofar as the applicant is seeking to re-litigate costs orders made in proceedings that have already been disposed of (being the proceedings determined in 2008, 2019 and 2020) by reference to the contention that the proceedings were illegal (because of complaints as to the notice of appearance or as to the certification of judgments), the applicant's contention has no prospects of success. The complaint as to the second defendant in the proceedings (not a party to the present application) appears to relate to the time for filing of a special leave application and does not give rise to a cause of action; and the complaints as to the orders made in the 2019 proceedings face the difficulty that this was the subject of the appeal that was dismissed in Wang v State of New South Wales [2020] NSWCA 21. Finally, the complaint as to the summary dismissal by the Registrar of the 2020 proceedings goes nowhere, not least because the pleading of the intentional tort claim in that proceeding suffered from the same deficiency as identified by the primary judge in the 2022 proceedings. 7. In those circumstances no error is shown in the summary dismissal by the primary judge of the substantive proceedings, nor in the costs orders made by his Honour. 8. Leave to appeal should be refused. There is no reason why costs should not follow the event. Accordingly, the appropriate order is for the summons seeking leave to appeal to be dismissed with costs. 9. Finally, it should be noted that the State has referred to a history of the applicant failing to comply with the Court's orders (referring to Wang v State of New South Wales (No 3) [2020] NSWCA 148) and says that the applicant has still not paid the State's costs from the 2019 proceedings (2019/328872). The State submits that the applicant's conduct has reached the point that she should show cause as to why a vexatious proceedings order should not be made against her (noting that ss 8(1) and (4) of the Vexatious Proceedings Act 2008 (NSW) enable the Court to make such an order on its own motion if it is satisfied that the applicant has frequently instituted vexatious proceedings in Australia; and referring to Macatangay v State of New South Wales [2012] NSWCA 374 at [4], [7], [9] per Macfarlan JA, Sackville AJA, Tobias AJA; Quach v New South Wales Health Care Complaints Commission; Quach v New South Wales Civil and Administrative Tribunal [2017] NSWCA 267 at [105]-[114] per Gleeson JA (with whom Simpson JA and Sackville AJA agreed)). 10. The State has foreshadowed seeking such an order (if the Court is not minded at this time to make a vexatious proceedings order) at first instance if further proceedings are commenced by the applicant that relate to previous proceedings and claims already brought by her against the State. In circumstances where the applicant is self-represented (and requires assistance from an interpreter) it would be more appropriate for any application for a vexatious proceedings order to be made in separate proceedings where the applicant has the opportunity to seek representation if she wishes to resist such an order. Accordingly, the Court does not propose to make such an order of its own motion in this application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2023