Zhang v The State of New South Wales [2012] NSWSC 363

Supreme Court New South Wales

Medium Neutral Citation: Zhang v The State of New South Wales [2012] NSWSC 363 Hearing dates: 26 March 2012 Decision date: 26 March 2012 Jurisdiction: Common Law Before: Grove AJ Decision: Decline to permit the filing of the two notices of motion in court Legislation Cited: Limitation Act Category: Procedural and other rulings Parties: 2005/00269552 James Zhao Ming Zhang v The State of New South Wales 2006/00267005 Shao Qiang Liao v The State of New South Wales Representation: Counsel: R McKeand SC with J Clifton - Plaintiffs M Windsor SC with M Hutchings - Defendant Solicitors: Raymond Lee & Co - Plaintiffs IV Knight Crown Solicitor - Defendant File Number(s): 2005/00269552, 2006/00267005

Judgment 1HIS HONOUR: Two cases have been brought by the respective plaintiffs against the State of New South Wales as what I might describe as the inheritor of the responsibilities of various corporations set up for the purpose of the conduct of the Olympic Games in Sydney in the year 2000. 2The first plaintiff Mr Zhang in the latest edition of his statement of claim seeks damages on what I will describe as four counts. They are respectively false imprisonment, malicious prosecution by unnamed police officer, malicious prosecution by a person on behalf of a corporation and interference with contractual relations. 3The second plaintiff Mr Liao sues on what I would call six counts, they are in short for false imprisonment, malicious prosecution by a named police officer, malicious prosecution by the same alleged agent of a corporation, interference with contractual relations by the police and by a corporation pursuant to the earlier named alleged agent. 4These proceedings have been on foot for some years and it appears to be common ground that to a large extent it has been case managed by Davies J. The listing today which would have been arranged in accordance with the ordinary listing procedures of the court provided as I understood it for the hearing by me of notices of motion by each of the plaintiffs which in short rather broadly seeks that a number of paragraphs of defences filed be struck out as embarrassing and there be directions that certain admissions be made. 5In the background of this litigation is previous litigation by a man called Zhu arising out of what are said to be similar circumstances. That case was heard by Bergin J and ultimately disposed of in the High Court of Australia. It is claimed that findings of fact in that litigation are pertinent to the relief being sought in the notice of motion to which I have made reference. 6As I understand it there was also to be dealt with before the court today notices of motion which had been filed in November last year by the defendants seeking in both cases costs thrown away as the result of vacation of a hearing date last year and in the case of Zhang an application for security of costs and for a stay in respect of a particular claim that is in his statement. 7At the outset of proceedings this morning I sought to establish just precisely what the parties wished to have dealt with by me over the two days that have been set aside for the hearing. I should observe that apparently on Friday and perhaps in one instance on Thursday some substantial written submissions were lodged with the registry. These did not arrive until shortly before the court sat this morning, however on my inquiry it appears that the defendant wishes to proceed first with motions seeking for orders substantially inhibiting the proceedings by reason of provisions in the Limitation Act. 8I am informed and accept for these purposes that at a directions hearing before Davies J where leave was granted to file the third amended statement of claim and a defence was also to be filed it is conceded that the defence as filed does raise limitation issues. The proposition therefore advanced is that rationally if limitation defences are to be successful then that would render unnecessary a lot of the other material that is presently being advanced before the court. 9Whilst that has a certain attraction the fact of the matter is that no appropriate motions have been filed until this morning when senior counsel for the defendant sought to file in court notices of motion in each case seeking orders substantially bringing into play provisions of the Limitation Act. 10It may be true that since 22 February it was known that limitation was an issue desired to be raised by the defendant. On the other hand, having pleaded the matter it may have been anticipated by the opponent plaintiff that this is a matter which would be dealt with at an ultimate trial. 11It is said that in the middle of last year in each case the plaintiff filed a notice of motion seeking extensions of time pursuant to the limitation and these would be relevant to claims for damage in the nature of what I might call for present purposes personal injury. The plaintiffs' senior counsel expressly disavowed the intention to rely on this and pointed out that the third amended statement of claim is drafted explicitly to exclude claims of that nature. In response to my inquiry he affirmed that it was not intended to proceed on the notice of motion seeking extension of time. 12There has been some dispute between counsel as to how obvious it would have been to the opposing parties and in this case the defendant that it was not intended to proceed with those claims but it seems to me that that is not a matter upon which the current application should be determined. The current application in effect is for leave to file notices of motion seeking to raise questions of limitation and as a corollary to that that those matters be dealt with first. 13In my view, given the state of the pleading and the matters that have been raised, leave to file the notice of motion should not be refused in a general sense but I would not proceed first with those matters. It therefore seems that the motions should be filed in court in the ordinary way. 14I should point out that in response senior counsel for the defendant asserted contrary to the implications of the plaintiff's senior counsel's submission that this was not a matter of ambush and that it would be a proper course to proceed first and that this would be an appropriate way of seeing to the efficient disposal of proceedings in accordance with the exhortations in the rules for just, quick and cheap disposal of litigation. 15I have taken that into account but for the reasons that I have indicated I am of the view that what should be heard today are the matters that were put before the court by the listing system in order to be determined. 16No doubt in due course this very complex litigation will go back to the judge having case management of it. It is not a unique situation that these matters are dealt with by judges other than Davies J. I observe the vacation of the hearing date was in fact ordered by Hall J. I therefore as a matter of practicality decline to permit the filing of the two notices of motion in court, each of which I have initialled and dated today, and I return those.