Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Pi v Zhou [2016] NSWCA 24 Hearing dates: 29 February 2016 Decision date: 02 March 2016 Before: Gleeson JA Decision: (1) Summons dismissed. (2) Applicant (Mr Pi) to pay the respondents' costs of the summons. Catchwords: ADMINISTRATIVE LAW – judicial review – summary dismissal – summons seeking review pursuant to s 69 Supreme Court Act 1970 (NSW) – power to summarily dismiss proceedings – s 46(1)(b) Supreme Court Act – power only exercised where high degree of uncertainty about the outcome of the proceedings – orders of Supreme Court judge not amenable to judicial review under s 69 Legislation Cited: Civil Procedure Act 2005 (NSW), s 98(1)(c) Supreme Court Act 1970 (NSW), ss 46(1)(b), 46(2)(b), 69 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 42.1 Vexatious Proceedings Act (2008) (NSW), 8(7)(b) Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23 Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Penson v Titan National Pty Ltd [2015] NSWCA 404 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Category: Procedural and other rulings Parties: Jian Cheng Zhou (First applicant on the Motion) Christine Zhao (Second applicant on the Motion) Guang Hua Pi (Respondent on the Motion) Representation: Solicitors: Wang Lawyers Pty Ltd (Applicants) Respondent (Self-represented) File Number(s): 2016/41912 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 1644 Date of Decision: 9 November 2015 Before: Adamson J File Number(s): 2013/389177 [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. GLEESON JA: Before the Court is a notice of motion filed 19 February 2016 by Jian Cheng Zhou and Christine Zhao for summary dismissal of a summons filed 9 February 2016 seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) of a decision of Adamson J given on 9 November 2015: Pi v Zhou [2015] NSWSC 1644. 2. The background to the matter is as follows. Between about June 2010 and early 2011, Mr Zhou and Mrs Zhao leased a separate one-bedroom flat at a property which they owned in Lakemba to Mr Pi. On 12 January 2011, there was an altercation at the property between Mr Zhou and Mr Pi. This followed Mr Zhou having given Mr Pi two weeks' notice to move out of the property on or about 9 January 2011. 3. Mr Pi brought proceedings in the Supreme Court against Mr Zhou and Mrs Zhao claiming damages for breach of contract against Mr Zhou arising out of his eviction from the property, damages against both Mr Zhou and Mrs Zhao with respect to an alleged assault and damages against Mr Zhou for conversion of a washing machine. The primary judge rejected each of these claims, gave judgment for Mr Zhou and Mrs Zhao, and ordered Mr Pi to pay their costs of the proceedings. 4. On 16 November 2015, Mr Pi commenced proceedings against Mr Zhou and Mrs Zhao in this Court by filing a summons seeking judicial review of the decision of Adamson J. On 4 December 2015, Mr Pi filed a notice of discontinuance without leave. On 7 December 2015, the Registrar of the Court of Appeal made the following orders: 1. Direct the removal of the notice of discontinuance filed without leave. 2. Grant leave to the applicant to discontinue the proceedings. 3. Applicant to pay the respondents' costs of the proceedings assessed at $1,200.00. Those costs have not been paid. 1. Notwithstanding that history, on 9 February 2016 Mr Pi commenced fresh proceedings by filing a summons again seeking judicial review of the decision of Adamson J. Mr Pi stated in his oral submissions that he wished to appeal from the decision of Adamson J, and he had only used a Form 107 "Summons (Supervisory Jurisdiction)" on the advice of the Registrar. However, he later contradicted this when he acknowledged that the Registrar had informed him that the Form 107 summons was the wrong means to challenge the decision of the primary judge. An appeal against the decision of the primary judge should be commenced by filing a notice of appeal (Form 105). 2. Mr Zhou and Mrs Zhao seek dismissal of the present proceedings on the grounds that they are frivolous or vexatious, or an abuse of the process of the Court: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4. 3. A single judge of appeal may exercise the powers of the Court of Appeal, relevantly, to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the Rules: s 46(1)(b) Supreme Court Act. That power would include dismissal of a purported application for judicial review: Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23 at [71] (McColl JA). 4. A single judge may not, however, make an order or direction involving the determination or decision of the an appeal or other proceedings: s 46(2)(b) Supreme Court Act. A dismissal of the summons on the basis of UCPR r 13.4 does not determine or decide the proceedings itself because an order made pursuant to that rule is interlocutory: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [11]. 5. It may be accepted that the power to order summary dismissal is one that should be exercised with great care and not unless it was clear that there is no real question to be tried. The test to be applied has been variously expressed, including: "So obviously untenable that it cannot possibly succeed"; and "manifestly groundless", but the underlying point is that there must be a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial or a hearing in the ordinary way: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24]-[25] (French CJ and Gummow J). 6. In the present case, the orders of Adamson J are not amenable to review by another judge of the Supreme Court under s 69 of the Supreme Court Act. As this Court said in Penson v Titan National Pty Ltd [2015] NSWCA 404 at [8]: Section 69 of the Supreme Court Act provides for a procedure that replaces the prerogative writs for which the common law provided. Those writs did not lie against a superior court: The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636. A judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36]; Barton v Walker [1979] 2 NSWLR 740. Nor is there power to make an order in the nature of certiorari, as sought by Ms Penson in Order 5 of her application. Section 69 has not altered that position. The orders of judges of the Supreme Court, including of the Court of Appeal, are not amenable to review under s 69. Ms Penson's application in this respect is misconceived and should be dismissed. 1. Similarly, Mr Pi's application is misconceived and should be dismissed. 2. By their notice of motion, Mr Zhou and Mrs Zhao also sought an order that Mr Pi be prohibited from initiating proceedings in New South Wales without leave of the court pursuant to s 8(7)(b) of the Vexatious Proceedings Act (2008) (NSW). That relief was not pressed on the hearing of the motion. 3. With respect to costs, no reason was shown why costs should not follow the event in relation to that motion: UCPR, r 42.1. Mr Zhou and Mrs Zhao did not press their claim for an order for costs on an indemnity basis. 4. The orders of the Court are: 1. Summons dismissed; 2. Plaintiff to pay the defendants' costs of the summons. ********** 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: 07 March 2016