Wang v Johnston Vaughan [2015] NSWCA 35

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wang v Johnston Vaughan [2015] NSWCA 35 Hearing dates: 1 December 2014 Date of orders: 06 March 2015 Decision date: 06 March 2015 Before: McColl JA at [1]; Macfarlan JA at [2]; Emmett JA at [3] Decision: Each of proceedings 2014/117615, 2014/219732 and 2014/233674 be dismissed with costs. Catchwords: APPEAL AND NEW TRIAL – appeal sought in respect of four decisions – whether any discernible ground of appeal has been specified Legislation Cited: Civil Procedure Act 2005 (NSW), s 73 District Court Act 1973 (NSW), s 127 Legal Profession Act 2004 (NSW), s 350(5) Local Court Act 2007 (NSW), ss 39, 40 Supreme Court Act 1970 (NSW), ss 48(2)(f), 101(2)(q) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 51.10 Cases Cited: Macatangay v State of NSW (No 2) [2009] NSWCA 272 Category: Principal judgment Parties: Yun Fu Wang (Applicant/Appellant) Michael John Vaughan and Amil Dlakic t/as Johnston Vaughan (Respondent) Representation: Counsel: Self-represented (Applicant/Appellant) P Arblaster (Respondent)

Solicitors: Self-represented (Applicant/Appellant) Colin Biggers & Paisley (Respondent) File Number(s): 2014/1176152014/2197322014/233674 Publication restriction: Nil Decision under appeal Court or tribunal: (1) District Court of NSW(2) Local Court of NSW(3) Workers Compensation Commission(4) Supreme Court of NSW Jurisdiction: (4) Common Law Division Citation: (4) Wang v Vaughan [2013] NSWSC 1016 Date of Decision: (1) 28 February 2014(2) 1 September 2011(3) 3 August 2007(4) 19 July 2013 Before: (1) Judicial Registrar Howard(2) Atkinson LCM(3) Arbitrator Harvey(4) Campbell J File Number(s): (1) 2013/347580(2) 2011/152780(3) 3530-2007(4) 2012/299645

[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.]

Decisions under appeal

Judgment 1. McCOLL JA: I agree with Emmett JA. 2. MACFARLAN JA: I agree with Emmett JA. 3. EMMETT JA: There are three separate proceedings before the Court. In each of them, the moving party is Mr Yun Fu Wang and the only respondents are Michael Vaughan and Amil Dlakic, who carry on a practice as solicitors under the name Johnston Vaughan. It is not easy to understand the relief sought by Mr Wang in any of the proceedings. However, Mr Wang appears to have three bases for complaint. The first is his failure to obtain workers compensation for a workplace injury that he claims to have suffered in August 2000. The second concerns the alleged wrongful termination of his employment in 2001. The third concerns fees charged by Johnston Vaughan and their conduct of some aspect of the litigation relating to his wrongful dismissal claim. Before dealing with the present proceedings, it is desirable to say something about Mr Wang's past litigation.

History of the litigation

Workers compensation 1. Mr Wang suffered injury in August 2000. At that time, he was employed by Botany View Hotel Ltd (the Employer). He alleged that he had sustained an incapacitating work injury on 9 August 2000 and sought workers compensation from the Employer. On 3 August 2007, Mr Philip Harvey, a Workers Compensation Commission arbitrator, found that, while Mr Wang had suffered an injury in the course of his employment on 9 August 2000, the employment was not a substantial contributing factor to the injuries that he sustained on that day. An award was therefore made for the Employer, the respondent in those proceedings. 2. On 26 February 2008, Acting Deputy President O'Grady of the Workers Compensation Commission refused Mr Wang's application for leave to appeal from Arbitrator Harvey's decision. On 17 September 2008, the Court of Appeal refused leave to appeal from the decision of the Acting President. On 1 April 2009, the High Court of Australia dismissed an application by Mr Wang for special leave to appeal from the decision of the Court of Appeal. 3. Mr Wang then sought re-consideration by Deputy President O'Grady (as he then was) of his decision of 26 February 2008. On 10 June 2009, the application for re-consideration was refused. On 18 November 2009, the Court of Appeal refused Mr Wang's application for leave to appeal from the re-consideration refusal. On 26 May 2010, the High Court of Australia refused Mr Wang's application for special leave to appeal from the decision of the Court of Appeal.

Wrongful termination 1. It appears that, in January 2001, the Employer terminated Mr Wang's employment. Some considerable time thereafter, in October 2010, Mr Wang commenced proceedings against the Employer in the Federal Magistrates Court, as the Federal Circuit Court was then known. Mr Wang apparently claimed that his employment had been terminated wrongfully. Johnston Vaughan acted for Mr Wang in those proceedings. On 16 February 2011, the proceedings were dismissed because they had been commenced out of time. An application to the Federal Court for leave to appeal from that dismissal was refused on 15 April 2011. 2. Mr Wang then commenced proceedings against the Employer in the Common Law Division, by summons filed on 13 July 2011. On 22 July 2011, a Registrar of the Court ordered that Mr Wang's summons be dismissed. Mr Wang applied for a review of the decision of the Registrar. On 2 December 2011, Hislop J ordered that the application for review be dismissed with costs. 3. Mr Wang then reverted to the federal system. He commenced further proceedings in the Federal Circuit Court in 2013, apparently in relation to the termination of his employment by the Employer. On 28 April 2014, a judge of the Federal Circuit Court dismissed those proceedings summarily. On 8 July 2014, a judge of the Federal Court refused Mr Wang's application for an extension of time to apply for leave to appeal from the decision of 28 April 2014.

Proceedings against Johnston Vaughan 1. Mr Wang was apparently dissatisfied with the services provided to him by Johnston Vaughan in connection with the proceedings in the Federal Magistrates Court. On 10 May 2011, Mr Wang filed a statement of claim in the General Division of the Downing Centre Local Court. On 16 May 2011, he filed an amended statement of claim and on 25 August 2011 he filed another amended statement of claim. While it is unclear what allegations were intended to be made by Mr Wang, it appears that his complaint was based on a breach of retainer by Johnston Vaughan. In any event, Johnston Vaughan filed a notice of motion seeking summary dismissal of the proceedings in the Local Court. That motion was heard by Magistrate Atkinson on 1 September 2011, when his Honour ordered that the proceedings be dismissed under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), on the basis that they disclosed no reasonable cause of action. 2. At some stage, Mr Wang requested a refund of the whole or part of the sum of $4,000 that he had paid to Johnston Vaughan on account of fees in connection with the proceedings in the Federal Magistrates Court. When he received no reply to his request, he made a complaint to the Legal Services Commissioner. On 8 December 2011, the Legal Services Commissioner rejected Mr Wang's complaint. 3. On 27 April 2012, Mr Wang lodged an application in the Supreme Court Registry for assessment of the fees charged by Johnston Vaughan. Some months later, the manager of the costs assessment unit realised that Mr Wang's application was out of time. Mr Wang then applied to the Common Law Division for an order under s 350(5) of the Legal Profession Act 2004 (NSW) extending the time fixed for him to make an application for costs assessment. That application came before Campbell J on 22 March 2013, when the parties announced that they had resolved their differences and that their agreement would be given effect to by entering into a deed containing their mutual promises. On that basis, Campbell J dismissed the proceedings, with no order as to costs, reserving liberty to the parties to apply in the event that such a deed was not executed by 22 April 2013. Pursuant to that liberty, the parties approached the Registrar and the proceedings were listed before Campbell J again on 20 May 2013. On that occasion, his Honour gave directions for the filing of a motion and affidavits for the purposes of determining under s 73 of the Civil Procedure Act 2005 (NSW) whether, and on what terms, the proceedings between Mr Wang and Johnston Vaughan had been compromised or settled. 4. For reasons published on 19 July 2013, Campbell J concluded that the parties had not compromised and settled the proceedings. Johnston Vaughan then indicated that they had no objection to the orders made on 22 March 2013 being set aside and that they no longer opposed the extension of time sought by Mr Wang. Accordingly, his Honour set aside the orders made on 22 March 2013, dismissed Mr Wang's notice of motion seeking relief under s 73 of the Civil Procedure Act and extended to 27 April 2012 the time for Mr Wang to apply for a costs assessment under s 350(5) of the Legal Profession Act. His Honour also ordered Johnston Vaughan to pay such costs as Mr Wang may be entitled to as a self-represented person in the proceedings. 5. Since then, there appears to have been some attempt by Mr Wang to have Johnston Vaughan's costs assessed or reviewed. However, it is quite unclear just what Mr Wang has done in relation to that matter. It will be necessary to return to that question. 6. On 18 November 2013, Mr Wang commenced proceeding 2013/347580 in the District Court, by filing a summons naming Johnston Vaughan as defendant. Endorsed at the foot of the first page of the summons in handwriting was the following: Defendant and I made "agreement", but they imposed, disclosed an[d] established compensation cause I lose award. From 10/5/11, defendant made false "11 years" misconduct to all costs, they identify "negligence done on plaintiff, pay any cost". But they changing deed, bargain against or filing a motion. Defendant refused lodge "cost", "cost agreement" to assessor, cause assessor disclosed, defendant pay cost assessor. Judge Campbell refused to deal with federal settlement and cover public entitle and corporation with assessor for dispatch any cost proceeding, Judge Campbell ordered defendant pay cost, but he penalty me pay cost by EC. 1. By notice of motion filed on 12 February 2014, Johnston Vaughan sought an order that the proceedings in the District Court be dismissed pursuant to r 13.4 of the UCPR or alternatively that the summons filed on 18 November 2013 be struck out pursuant to r 14.28. On 28 February 2014, Judicial Registrar Howard ordered that the summons be dismissed under r 13.4 on the basis that the summons contained insufficient pleadings to disclose a cause of action. However, the Judicial Registrar recorded in his reasons that he had attempted to identify with Mr Wang the issues that he wished to raise, and said as follows: [t]he subject matter may involve the arrangements between him and the defendants over their legal representation of him; and it may involve matters involving a deed that may or may not have been entered into by the parties, although Campbell J concluded otherwise; it may or may not involve costs orders as a result of the decision of Campbell J; and then there are other matters in relation to the Local Court, but none of these things … are identifiable in a succinct way of creating an understandable cause of action under either a summons that could be filed in the District Court or at this time any other proceedings that could be filed in the Court.

Proceedings in the Court of Appeal 1. On 17 April 2014, Mr Wang commenced proceedings in this Court by filing an undated summons naming Johnston Vaughan as respondent (Proceedings 2014/117615). Attached to the summons is a form of application for review of determination of a costs assessor. That form is dated 17 April 2014. The object of Proceedings 2014/117615 is entirely unclear. By the attached application for review, Mr Wang purports to apply for a review of a determination issued by a costs assessor "11/3/2014 (District Court)". That may be an assessment conducted following the orders made by Campbell J. However, that is not clear. Further, it is unclear whether Mr Wang has also filed such an application for review in any appropriate registry. 2. In any event, there was no determination of a costs assessor amongst the array of papers presented to this Court by Mr Wang. There was, however, a letter dated 22 October 2013 to Mr Wang from Mr John Levingston, barrister and costs assessor, returning unidentified papers to Mr Wang and saying that Mr Levingston had completed his "assignment from the NSW Supreme Court" and that there was nothing more he could do. 3. The date of Mr Levingston's letter may have some significance, since Mr Wang complained in his oral and written submissions to this Court that counsel for Johnston Vaughan had wrongly asserted that the abovementioned proceedings that were commenced on 18 November 2013, in relation to an unidentified costs assessment, had been commenced out of time. In that submission, Mr Wang asserted that he had commenced proceedings within 28 days of 22 October 2013. There was no material before this Court to indicate the nature of the proceedings in question. 4. The basis of Proceedings 2014/117615 and the relief claimed are quite incomprehensible. Thus, the summons in Proceedings 2014/117615 states that the type of claim being made by Mr Wang is as follows: (1) Part 9.4AAA of the Corporation Act, defendant breach contract damage award made false bills refused pay, Mr Vaughan pay injury $90,832. Mr Dlakic pay cost $68,018. (2) Hookham v Queen, s 144 unreasonable bind a WHS enter permitted hold. The summons claims relief in the following terms: Part 9.4AAA Corporation Act 2001 imposed dismiss Mr Vaughan pay $90,832, Dlakic pay $68,018. Section 144, unreasonable bind a WHS enter permit hold corporations and wrongfuldoing pay $50,000. Hookham v Queen, against a person due diligence Worker Compensation Act 1998. 1. On 25 July 2014, Mr Wang commenced further proceedings in this Court (Proceedings 2014/219732) by filing a summons seeking leave to appeal. That summons is also incomprehensible. The summons is a pro forma document in which Mr Wang specified that the summons has been filed in relation to "pay cost and compensation". The following handwritten material appears at the foot of the first page of the summons: 22/10/13 The assessor unreasonable dismiss Judge Campbell's cost order. 28/2/14 District Registrar dismiss Judge Campbell's cost order and issued on 11/3/2014. The references to the dismissal of orders made by Campbell J are unexplained. The only document of 22 October 2013 is the letter from Mr Levingston, which makes no reference to Campbell J's orders. The only reference to Campbell J's orders made by Judicial Registrar Howard was to make the point that other judges have had similar difficulties in understanding Mr Wang's submissions. 1. On 8 August 2014, Mr Wang commenced the third set of proceedings in this Court by filing a notice of appeal (Proceedings 2014/233674). The notice of appeal identifies the decision of Judicial Registrar Howard of 28 February 2014 as the subject of the appeal. The grounds stated are as follows: Defendant made false long time refused money order. DPP v ESSO s 546. Australian Workplace Agreement (AWS), TPCA enforce pay. Once again, the document is quite incomprehensible.

The issues in the proceedings 1. At a directions hearing on 17 November 2014, Mr Wang provided to the Registrar of this Court a folder containing all documents upon which he proposed to rely. The documents are in no particular order and are in some cases incomplete. At the directions hearing, Mr Wang was directed to write down all of the decisions from which he seeks to appeal. He did so in the following terms: District Court 34780/13 Howard 28/2/13 Local Court 152780/11 Howard 9/9/11 Arbitrator 3530/07 Philip 16/5/07 (4) Supreme Court 299645/13 Campbell 19/7/13 1. When the three matters were called on for hearing, Mr Wang appeared in person with the assistance of an interpreter. He also provided written submissions. The submissions are incomprehensible and give no assistance in elucidating Mr Wang's complaints. Mr Wang also made brief oral submissions in relation to the question of whether an application for review of a costs assessment was filed out of time. That matter is mentioned briefly above. 2. Having regard to the form of the initiating process in the three matters in this Court and the difficulty in comprehending the nature of Mr Wang's complaints before this Court, the appropriate course is to address the four decisions that Mr Wang indicated to the Registrar that he wished to challenge in this Court.

Judicial Registrar Howard's decision of 28 February 2013 1. Under s 127(1) of the District Court Act 1973 (NSW) and s 48(2)(f) of the Supreme Court Act 1970 (NSW), an appeal from a decision of a judicial registrar of the District Court lies to the Court of Appeal. However, under s 127(2)(a) of the District Court Act, an appeal from an interlocutory judgment or order lies only with leave. An order for summary dismissal under r 13.4 of the UCPR is an interlocutory order (see Macatangay v State of NSW (No 2) [2009] NSWCA 272 at [10]-[11]). No leave to appeal has been granted and it is by no means clear whether any of the three proceedings in this Court involves an application for leave to appeal. 2. Further, under r 51.10 of the UCPR, any application for leave must be filed within 28 days of the material date. All of the three proceedings presently before the Court were commenced more than 28 days after 28 February 2013. No application for an extension of time has been filed and no basis upon which an extension of time should be granted has been established. 3. The decision of Judicial Registrar Howard is referred to in the initiating process in each of Proceedings 2014/117615, Proceedings 2014/219732 and Proceedings 2014/233674. However, no appealable error on the part of Judicial Registrar Howard has been demonstrated. The summons that Judicial Registrar Howard ordered to be dismissed discloses no cause of action against Johnston Vaughan. In circumstances where there has been no grant of leave to appeal, no extension of time and where no appealable error has been demonstrated, it is clear that no challenge to the decision of the Judicial Registrar can succeed. Each of Proceedings 2014/117615, Proceedings 2014/219732 and Proceedings 2014/233674 should be dismissed in so far as it seeks relief in respect of that decision.

Local Court decision of 1 September 2011 1. Mr Wang refers to a decision in proceedings in the Local Court involving "Howard 9/9/11". The decision that Mr Wang seeks to challenge appears to be that of Magistrate Atkinson made on 1 September 2011. The reference to 9 September 2011 appears to be the date of a certificate as to the entry of judgment on 1 September 2011. 2. An appeal against a judgment or order made in proceedings in the General Division of the Local Court on a question of law lies to the Supreme Court (Local Court Act 2007 (NSW), s 39(1)). However, under s 40(2) of the Local Court Act, such an appeal lies only with leave in relation to an interlocutory order. Further, any appeal or application for leave to appeal should have been made in the Common Law Division of the Supreme Court and not to the Court of Appeal. 3. There is no reference to the decision of the Local Court in the initiating process filed in any of Proceedings 2014/117615, Proceedings 2014/219732 and Proceedings 2014/233674, except that in the summons seeking leave to appeal filed in Proceedings 2014/219732, Mr Wang has written in the first of nine dot points "(1) I appeal all the proceeding". No ground of appeal has been specified in any of those initiating processes. In the circumstances, each of Proceedings 2014/117615, Proceedings 2014/219732 and Proceedings 2014/233674 should be dismissed in so far as Mr Wang seeks to challenge the decision of the Local Court of 1 September 2011.

Arbitrator's decision of 16 May 2007 1. There is no arbitrator's decision of 16 May 2007. However, it appears that on 16 May 2007, Mr Wang made an application to the Workers Compensation Commission in relation to his claim for compensation against the Employer. That application was dealt with by Arbitrator Harvey on 3 August 2007. The first page of the reasons of Arbitrator Harvey was included in the papers before this Court. That decision was the subject of review by Acting Deputy President O'Grady on 26 February 2008. 2. Johnston Vaughan was not a party to the arbitration or the subsequent reviews and appeals described above. Further, the Employer is not a party to any of Proceedings 2014/117615, Proceedings 2014/219732 or Proceedings 2014/233674. 3. As indicated above, Mr Wang appears to have exhausted his avenues of appeal, both in this Court and in the High Court of Australia. While Arbitrator Harvey's decision is referred to in Mr Wang's submissions, no discernible ground of appeal can be identified. In the circumstances, each of Proceedings 2014/117615, Proceedings 2014/219732 and Proceedings 2014/233674 should be dismissed in so far as Mr Wang seeks to challenge the decision of Arbitrator Harvey in the proceedings.

Campbell J's decision of 19 July 2013 1. An appeal would lie to this Court from the decision of Campbell J. However, under s 101(2)(q) of the Supreme Court Act, leave is required in relation to an appeal from a judgment or order in proceedings of the Court with respect to the taxation or assessment of costs. 2. Campbell J's decision is referred to in the summons seeking leave to appeal in Proceedings 2014/219732 and in Mr Wang's submissions. However, it is quite unclear which of the orders made by Campbell J are the ones that Mr Wang seeks to challenge or the grounds upon which he seeks to do so. He could hardly be complaining about the orders made in his favour extending the time to apply for a costs assessment and for the payment of his costs. His complaint is presumably connected with the conclusion reached by Campbell J that there was no agreement reached between the parties. It is by no means clear just what was sought to be agreed. In any event, in the absence of any discernible grounds of appeal, no basis has been shown for granting leave to appeal. In so far as any of Proceedings 2014/117615, Proceedings 2014/219732 or Proceedings 2014/233674 seeks to challenge any of the orders made by Campbell J, the proceedings should be dismissed.

Conclusion 1. In the course of his reasons, Judicial Registrar Howard observed that, in his presentation and in the documents tendered by him, it was apparent that English is not Mr Wang's first language and that it was obvious that, in representing himself, the intricacies, principles and system of law and practice are difficult for him to interpret. The Judicial Registrar said that, for those reasons, it was very difficult to understand exactly what the case was about and why Mr Wang had filed his summons. 2. Judicial Registrar Howard also referred to observations made by Campbell J in his reasons of 19 July 2013, to the effect that it is sometimes hard for a person in Mr Wang's position, who has not much money and for whom English is not the first language, to obtain legal help. His Honour also observed that, while Mr Wang had been in Australia for quite some time, migrants in his position sometimes have more difficulty understanding the intricacies of the legal system than other ordinary members of the community. Campbell J made those observations in the context of accepting that Mr Wang did not appreciate that time was running against him to have Johnston Vaughan justify their charges by an assessment process. 3. When addressing this Court, Mr Wang took exception to the observations by Campbell J and Judicial Registrar Howard. He asserted that the observations were discriminatory and that he had been unsuccessful because he has only a limited knowledge of English. Clearly, no such criticism can fairly be addressed to either Campbell J or Judicial Registrar Howard. It may be that Mr Wang has been unsuccessful in successive proceedings because of his lack of comprehension of English. However, no complaint can be made that Mr Wang has been the subject of discrimination because he does not speak English. Instead, the observations of which Mr Wang complains were of a sympathetic nature intended to convey why Mr Wang may have had difficulties engaging with the legal system, rather than as a reason for disposing of any of his proceedings. 4. As will have been apparent, this Court has had similar difficulty in understanding Mr Wang's complaints. His written submissions, which extend to ten pages, have no particular form and, while paragraphs and sub-paragraphs are numbered and lettered, it is difficult to find a finite verb in most paragraphs. The submissions are peppered with references to cases, legislation and rules, but the relevance of the references is impossible to discern. 5. Mr Wang has been unable to advance any basis upon which any relief should be granted in any of the three proceedings that he has commenced in this Court. In the circumstances, each of the proceedings should be dismissed. Mr Wang should be ordered to pay Johnston Vaughan's costs of each of the proceedings.

********** 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: 06 March 2015