WANG v STATE OF NEW SOUTH WALES [2010] NSWCA 209

Appeal Outcome: Special leave application dismissed by the High Court, 11 November 2010, (S201/2010) [2010] HCASL 273

New South Wales Court of Appeal

CITATION: WANG v STATE OF NEW SOUTH WALES [2010] NSWCA 209

HEARING DATE(S): 10 August 2010

JUDGMENT DATE: 24 August 2010

JUDGMENT OF: Basten JA at 1; Macfarlan JA at 1; Handley AJA at 1

(1) Allow the appeal. (2) Set aside the order made in the Common Law Division on 2 July 2009 dismissing the statement of claim and ordering the plaintiffs to pay the defendant's costs. (3) In place thereof make the following orders: (a) strike out the statement of claim filed 29 December 2008, but grant the plaintiff (Li Wang) leave to file a fresh statement of claim by 8 October 2010, such leave being limited to: a claim against the State of New South Wales with respect to the conduct of Richard Kennedy, then a senior constable of police, during the period from 10 January to 27 July 2004, following a complaint of an alleged assault on the plaintiff by her landlord; (b) such leave excludes any claim – (i) by the plaintiff's husband; (ii) against Inspectors Melton and Krawczyk; DECISION: (iii) against Commanders G McCarthy, L Freudenstein and G Beresford; (iv) against Police Prosecutor Mr Ian Casha; (v) against the Director of Public Prosecutions; (vi) against Mr B Searson of the New South Wales Police Legal Services, and (vii) in respect of the present proceedings. (c) no order as to the costs of the motions determined on 2 July 2009; (d) grant the plaintiff leave to apply to a judge in the Common Law Division to vary these conditions, if so advised, but only on the basis of an affidavit provided by a legal practitioner that there is a cause of action which would otherwise be precluded, which has reasonable prospects of success. (4) Order that the respondent pay the appellant's costs, assessed as an unrepresented party, in this Court. (5) Refer the appellant to the Registrar for referral to a barrister having experience in relation to claims in tort against public authorities, on the Pro Bono Panel, for assistance in drafting a statement of claim.