Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Wang & Liu v State of New South Wales [2011] NSWCA 321
• Hearing dates: 29 September 2011
• Decision date: 29 September 2011
• Before: Campbell JA at [1], [27]; Handley AJA at [26]

Decision

Application for leave to appeal dismissed with costs.

[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.]

• Catchwords: APPEAL - s 101(1) Supreme Court Act 1970 - appeals only lie against a "judgment or order" - where there is no formal judgment or order which when entered is binding on the parties and definitive of legal rights, no appeal lies - appeal is against judgment or order, not against the reasons for judgment - impossible to appeal against orders that have not been made
• Legislation Cited: Supreme Court Act 1970
• Cases Cited: Ah Toy v Registrar of Companies (1985) 10 FCR 280; Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309; Lake v Lake [1955] P 336; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Moller v Roy (1975) 132 CLR 622; Universal Tape Wholesalers Pty Ltd v AMP Fire and General Insurance Co Ltd (NSWCA, 8 March 1991, unreported); Wang v State of New South Wales [2010] HCASL 273; Wang v State of New South Wales [2010] NSWCA 209; Wang v State of New South Wales [2011] NSWSC 609; Wang v State of New South Wales [2011] NSWSC 882
• Category: Principal judgment
• Parties: Li Wang & Yu Liu (Applicants); State of New South Wales (Respondent)
• Representation: Counsel; In person (Applicants); C F Hodgson (Respondent); Solicitors; Unrepresented (Applicants); Crown Solicitor (Respondent)
• File Number(s): 2010/423390
• Publication restriction: Nil

Decision under appeal

• Jurisdiction: 9111
• Citation: Wang v State of New South Wales [2011] NSWSC 609
• Date of Decision: 2011-06-23 00:00:00
• Before: Schmidt J
• File Number(s): 2010/423390

Judgment

1 CAMPBELL JA : Ms Wang is the wife of Mr Liu. They both brought an action against the State of New South Wales. That action and various other proceedings that have sprung from it have all proceeded on the basis that Ms Wang is incapable and must bring any legal proceedings by her tutor. Mr Liu has acted as her tutor in all the proceedings so far.

2 The litigation against the State arose from an incident on 10 January 2004 in which Ms Wang claims to have been assaulted by her landlord. She complained to the police about the assault and was dissatisfied with the manner in which her complaint was dealt with. In particular, she was dissatisfied with the way in which a Senior Constable Kennedy had acted. All the litigation that Ms Wang and Mr Liu have brought is brought on the basis that the State is vicariously liable for the actions and inactions of the police officers.

3 On 29 December 2008, both Ms Wang and Mr Liu commenced proceedings against the State alleging that inadequacy in the police handling of the complaint had caused psychological injury. It seems that the contention was that Ms Wang had suffered the psychological injury, although both Ms Wang and Mr Liu were named as plaintiffs.

4 Ms Wang and Mr Liu have acted for themselves in all this litigation apart from at one stage obtaining the certificates from a solicitor that were needed for Mr Liu to act as Ms Wang's tutor.

5 In July 2009, R S Hulme J heard a notice of motion that was filed by the State seeking that the proceedings be dismissed or, alternatively, that the statement of claim be struck out. There had been amendments to the statement of claim such that the current version at the time of the hearing before R S Hulme J was the fifth amended statement of claim. R S Hulme J ordered that the proceedings be dismissed with costs.

6 Leave to appeal against that decision was granted.

7 On 24 August 2010, this Court allowed the appeal in part: Wang v State of New South Wales [2010] NSWCA 209. The order dismissing the statement of claim with costs was set aside and in its place the following orders were made:

"(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 Cracoar;

(iii) against Commanders G McCarthy, L Freudenstein and G Beresford;

(iv) against Police Prosecutor Mr Ian Casher;

(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 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."

8 The Court of Appeal declined to rule on an application to permit the filing of a sixth amended statement of claim that made allegations of misconduct against many people other than Senior Constable Kennedy. The Court of Appeal also made an order referring 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.

9 Ms Wang and Mr Liu sought special leave to appeal to the High Court from that decision. However, that application was unsuccessful: Wang v State of New South Wales [2010] HCASL 273.

10 At no time did Ms Wang and Mr Liu seek to avail themselves of the opportunity given them by the Court of Appeal to obtain pro bono assistance in drafting a statement of claim that could survive striking out. Instead, they discontinued the proceedings that they had started in December 2008 and on 22 December 2010 they filed fresh proceedings. The 2010 proceedings sought to make a wider range of allegations than those that had been permitted by the order of the Court of Appeal. In particular, they made claims against police officers other than Kennedy, including some against police officers who were specifically excluded from the leave to re-plead that the Court of Appeal had granted. Again, in this new 2010 proceeding, Mr Liu acted as the tutor for Ms Wang.

11 On 15 March, 11 May and 16 May 2011, Schmidt J heard four different notices of motion in the 2010 proceedings. Her Honour delivered judgment concerning the notices of motion on 23 June 2011: Wang v State of New South Wales [2011] NSWSC 609. As appears from her Honour's judgment at [5], those notices of motion were:

(1) By the plaintiffs concerning a failure of the defendant to file a defence to the statement of claim and concerning the court's failure to take specified steps in previous proceedings between the parties. Mr Liu in submissions to Schmidt J explained that that notice of motion sought an order for summary judgment in favour of the plaintiffs because the defendant had failed to file a defence to the statement of claim within the time the rules required: [28].

(2) By the plaintiffs seeking an order that Mr Liu file an affidavit that he had sworn in February 2011 in relation to a complaint against the defendant's legal representative's conduct in relation to certain earlier proceedings and seeking that its solicitor and counsel be disciplined.

(3) By the plaintiffs that Mr Liu "consent to act as Ms Wang's tutor" and that a further affidavit be filed. It appears that this notice of motion was in substance an application that Mr Liu be permitted to act in the proceedings as tutor for his wife and that leave be granted to him pursuant to UCPR 7.14(2) to act as a tutor without a solicitor.

(4) By the defendant seeking an order dismissing the proceedings or, in the alternative, striking out the plaintiff's statement of claim, or staying the proceedings. As well, the defendant contended that Mr Liu should not be permitted to continue to act as his wife's tutor.

12 In her judgment Schmidt J made decisions in principle:

(1) That Mr Liu should not be given leave to commence and continue the proceedings as his wife's tutor without a solicitor (at [41]-[43]).

(2) That Mr Liu should not be prevented from acting as his wife's tutor (at [47]).

(3) That summary judgment in favour of Mr Liu and Ms Wang should not be ordered (at [49]).

(4) That insofar as the 2010 proceedings asserted rights of Mr Liu that were outside the scope of the leave granted by the orders of the Court of Appeal, they were an abuse of process and should be dismissed (at [56]-[57]).

(5) That insofar as the statement of claim in the 2010 proceedings asserted rights of Ms Wang that were outside the scope of the leave granted by the Court of Appeal, Schmidt J made a fresh referral to the Registrar for referral to a barrister having experience in tort claims against statutory authorities for advice as to the position that she was in and assistance in relation to the drafting of a statement of claim (at [61]).

13 Schmidt J declined to make any final decision concerning dismissal or striking out of Ms Wang's action in whole or part until such time as such advice had been obtained.

14 Importantly for present purposes, Schmidt J's judgment of 23 June 2011 only gave a direction and did not make orders. Her judgment concluded at [63] by saying:

"The parties should bring in short minutes of order to reflect this judgment. If necessary, I will hear the parties on the question of costs. It appears that the orders should be that:

1. The plaintiff's January, February and March 2011 motions be dismissed so far as Mr Liu is concerned;

2. The statement of claim be dismissed insofar as Mr Liu is concerned.

3. Mr Liu's application that he be allowed to commence and carry on the proceedings as tutor for Ms Wang without a solicitor be refused.

4. The defendant's application that Mr Liu be removed as Ms Wang's tutor be refused.

5. Refer Ms Wang 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 advice as to her position and assistance in drafting the statement of claim.

6 This matter be adjourned to 14 July 2010 at 9.30 am for further directions."

15 As it eventuated, orders of the type that were foreshadowed in the judgment of 23 June 2011 were not made. Ms Wang and Mr Liu did not attend court on the further occasions when the matter was before her Honour on 21 July 2011 and 5 August 2011.

16 Her Honour gave a further judgment on 18 August 2011, Wang v State of New South Wales [2011] NSWSC 882. In it, her Honour recorded the events that had occurred from the time at which the judgment of 23 June 2011 was given. After referring to the giving of the judgment on 23 June 2011, her Honour continued:

"2. While giving that judgment the proceedings were disrupted, when Ms Wang became distressed. Mr Liu sought a short adjournment but, as events unfolded, neither he nor Ms Wang returned to court. In the circumstances, the steps which I took were to adjourn the matter until 21 July for further consideration and in the interim, to refer Ms Wang to the registrar for referral to a barrister on the Pro Bono Panel.

3. I understand that this referral led to such assistance being made available to Ms Wang, but that it was refused. When the matter came before me on 21 July, there was no appearance from either Mr Liu, nor Ms Wang. It was reported that the defendant understood that they had decided to appeal the June judgment, but that they did not intend to appear further in the proceedings.

4. The matter was adjourned for further hearing on 5 August, on the basis that Mr Liu and Ms Wang would be informed that if they did not appear on that occasion, the matter would be dealt with in their absence.

5. There was then no appearance for either Mr Liu or Ms Wang. The defendant pressed for orders dismissing the proceedings and sought costs. The evidence established that Mr Liu and Ms Wang had been given notice of the orders which would be sought. In evidence was a letter from Mr Liu in which he advised that they would not attend the hearing."

17 The orders that Schmidt J made on 18 August 2011 were:

"1. The Notices of Motion filed by the plaintiffs in these proceedings be dismissed.

2. The defendant's Notice of Motion filed 5 April 2011 be dismissed with no order as to costs.

3. The Statement of Claim filed on 22 December 2010 be dismissed.

4. Otherwise, the plaintiffs pay the defendant's costs of the proceedings, as agreed or assessed."

18 The process that is before the Court today is an application by Ms Wang and Mr Liu for leave to appeal against what is described as orders 1, 2, 3 and 5 of Schmidt J on 23 June 2011.

19 There is evidence before the Court that the Crown Solicitor's Office wrote to Mr Liu on 18 August 2011 contending that no orders had been made on 23 June 2011 and suggesting that the Applicants might consider whether they wished to amend the application for leave so that it related to orders that had been made on 18 August 2011. That invitation to amend was not availed of before today's hearing.

20 At the start of the hearing today, Mr Liu was again given the opportunity either to amend the application, or to supplement it, so that it related to the orders of 18 August 2011. He declined to take that opportunity. I mention also that even though Mr Liu continues to act as tutor for Ms Wang without a solicitor, the Court today took no action to prevent that happening for the purpose of today's hearing as that seemed to be the only practical way of allowing submissions to be made to challenge what was said to be an order that Schmidt J had made on 23 June 2011 concerning whether he should continue to act as a tutor without a solicitor.

21 In the course of submissions today, Mr Liu made numerous objections to the procedure by which this application for leave to appeal has come before the Court today. One particular type of objection related to the authenticity of judgments that have been given in the proceedings. That is an objection that is of no substance because the Court takes judicial notice of its own judgments and knows through that judicial notice what judgments have been given and in what terms.

22 Other objections were taken, but they need not be dealt with specifically because there is a fundamental problem with today's application. It is impossible for this application for leave to appeal to succeed.

23 Appeals from the Supreme Court in a Division are against a "judgment or order" : s 101(1) Supreme Court Act 1970 . A " judgment or order " in this context means an operative judicial act, ie the formal judgment or order which when entered is binding on the parties and definitive of legal rights: Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; Lake v Lake [1955] P 336 at 343; Moller v Roy (1975) 132 CLR 622 at 625, 632, 639; Universal Tape Wholesalers Pty Ltd v AMP Fire and General Insurance Co Ltd (NSWCA, 8 March 1991, unreported); Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127; Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; (2005) 62 NSWLR 309 at [30], [39]; Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 285-6. While error in a judgment or order might be demonstrated on an appeal by showing error in a judge's reasons for judgment, the appeal is against the judgment or order, not the reasons for judgment: Driclad at 64; Lake v Lake at 344; Ah Toy at 286.

24 Her Honour made no orders of the type that are sought to be appealed against on 23 June 2011. It is impossible to appeal against orders that have not been made. For that reason the application for leave to appeal must be dismissed.

25 The orders that I propose are that the application for leave to appeal be dismissed with costs.

26 HANDLEY AJA : I agree.

27 CAMPBELL JA : The orders of the Court are therefore those that I have proposed.

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Decision last updated: 10 October 2011