Pi v Zhou (No 3)

1. [1]

   PAYNE JA: By summons dated 8 March 2016 the applicant, Mr Pi, sought an extension of time to appeal from a decision of the primary judge, Adamson J, made on 9 November 2015 dismissing his claim for damages for assault and various other torts against the respondents, Mr Zhou and Mrs Zhao: Pi v Zhou [2015] NSWSC 1644.

2. [2]

   Following a series of aborted applications for judicial review, the present proceedings were commenced by Mr Pi. The respondents sought security for costs and Gleeson JA ordered the applicant to provide security for the respondents’ costs in the sum of $12,000: Pi v Zhou [2016] NSWCA 148.

3. [3]

   On 15 February 2017, this Court delivered its principal judgment, following a review of Gleeson JA’s orders: Pi v Zhou (No 2) [2017] NSWCA 16. The Court ordered, relevantly, that the applicant provide security for the respondents’ costs by paying into court the sum of $12,000, or by otherwise providing security for that amount in a manner satisfactory to the respondents. Pending that security being provided, the stay of the proceedings which had been ordered by Gleeson JA was continued. The Court ordered security to be provided on or before 5 April 2017.

4. [4]

   The orders of the Court provided that the matter was listed before a judge of the Court on 10 April 2017 for consequential orders, or, in the event that the security had not been provided, an order for the dismissal of the proceedings.

5. [5]

   On 10 April 2017, the matter was listed before me. Security for costs had not been provided. There was no appearance by either party. Rather than order the dismissal of the proceedings as had been contemplated by the orders, the parties were given a further specific opportunity to address whether the Court should dismiss the proceedings for failure to pay the security for costs which had been ordered. On 11 April 2017, the parties were notified by the Registrar and invited to make written submissions as follows:

6. [6]

   There is no issue before me that each party complied in substance with the procedural directions I made. On 3 May 2017 the applicant filed his submissions. On 23 May 2017 the respondents filed submissions in reply.

7. [7]

   At the hearing on 24 August 2017 I gave leave to Mr Pi to rely as submissions upon two additional documents which he handed up entitled ‘Security for costs – Error of law Error of facts Particulars’ and ‘List of AFFIDAVIT 3 May 2017 Written Submissions annexed evidence docs’.

8. [8]

   It is common ground that Mr Pi has not provided the security for costs which was ordered.

The submissions

1. [9]

   English is not Mr Pi’s native language and he appeared before me with the assistance of an English interpreter. It is unclear the degree to which he had the assistance of a qualified interpreter in preparing his written submissions.

2. [10]

   In written submissions dated 3 May 2017, Mr Pi made submissions which were essentially addressed to the underlying assault allegations he made against the respondents. No submissions were made which directly addressed the question of why, as security for costs had not been provided as ordered on 15 February 2017, the proceedings should not be dismissed.

3. [11]

   Although the submissions were lengthy, the part of the submissions said to be directed to security for costs can be set out verbatim:

4. [12]

   The applicant, in paragraphs 7 to 10.1 of his written submissions, repeated and amplified complaints about the conduct of the respondents and repeated his underlying allegations of assault. In paragraph 10.2, the applicant returned to the subject of security for costs and stated:

5. [13]

   Paragraphs 11 to 13, which occupy over five pages, include a number of allegations about what are described as “untruths” told by the respondents, but do not address the question of security for costs or the dismissal of the proceedings.

6. [14]

   On 24 August 2017, the applicant handed up the documents identified at paragraph 7 above. Doing the best I can, the submissions may be summarised as follows:

   1. (1)

      an “error of law error” appears on the “face of the court proceedings record” in the decision of Adamson J because:

   2. (2)

      this Court erred in taking Adamson J’s decision into account when it ordered the applicant to lodge security for costs, as the decision made on 15 February 2017 was “built on” her Honour’s erroneous decision;

   3. (3)

      the decisions of Gleeson JA of 2 March 2016 and 24 June 2016 were erroneous because:

   4. (4)

      Adamson J and Gleeson JA were each guilty of unsatisfactory professional conduct and professional misconduct by acting to “damage” the name of the applicant, certain unnamedConsumer Trader & Tenancy Tribunal “judicial” officers, Stone LCM and Solomon DCJ; and

   5. (5)

      McCallum J made a costs order for $5,500 in the applicant’s favour which the respondents have still not paid.

7. [15]

   It was submitted that the following were “incontrovertible” facts:

   1. (1)

      the respondents intentionally assaulted and inflicted grievous bodily harm upon the applicant, causing him permanent disability;

   2. (2)

      the respondents’ notice of motion for security for costs was frivolous, vexatious and an abuse of process; and

   3. (3)

      the respondents have “no evidence” that the applicant’s case has no prosects of success.

8. [16]

   So far as the other document was concerned, being the submission described as “List of AFFIDAVIT 3 May 2017 Written Submissions annexed evidence docs”, the documents referred to in this submission were not in evidence before me.

9. [17]

   The applicant’s oral submissions were almost wholly repetitive of the written submissions. Despite a number of invitations to address any specific submission to why this matter should not be dismissed for failure to provide security for costs, the applicant repeated matters about complaints concerning the earlier decisions of Adamson J and Gleeson JA.

10. [18]

    The only oral submissions which directly addressed the decision of this Court was as follows:

The respondents’ submissions

1. [19]

   The respondents’ submissions filed on 23 May 2017 also failed to address any potentially relevant legal issue. It is fair to say that the respondents’ essential submission was that the “true aims” of the applicant’s action was “to waste our money and … resources”. Mr Zhou did not seek to add to his written submissions by oral address.

Consideration

1. [20]

   The applicant’s central complaint, that security for costs should never have been ordered by the Court, is not a matter that can be challenged before me. Special leave to appeal was not sought nor was any application made to vary or discharge those orders.

2. [21]

   None of the submissions advanced by the applicant in writing or orally address the only question presently before the Court, namely, whether these proceedings should be dismissed by reason of the failure of the applicant to pay the security for costs ordered by the Court. In particular, no submission was made about whether the power in the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) Pt 51 r 51.50(2A) or the inherent jurisdiction of the Court was engaged such that the Court had jurisdiction to dismiss the summons by reason of the failure of the applicant to pay the security for costs ordered by the Court.

3. [22]

   There may be an issue about the Court’s power in r 51.50(2A) to dismiss the proceedings by reason of the definition of “appellant” in UCPR r 51.2 which arguably does not include Mr Pi who is formally an applicant for an extension of time to appeal. In my view r 51.50(2A) provides power to dismiss this proceeding where an order for security for costs has been made under r 51.50(1). Even assuming that r 51.50(2A) does not apply, the Court has inherent jurisdiction to dismiss the summons for failure to comply with an order to provide security for costs: Ballard v Brookfield Australia Investments Ltd [2013] NSWCA 82 at [98] per Ward JA.

4. [23]

   In the present case, the Court ordered that security for costs be paid in the amount of $12,000 by 5 April 2017. That security has not been paid and there is no realistic prospect that it will be paid. Certainly, the applicant advanced no submission that any additional period of time would enable him to lodge the security for costs which has been ordered. His position is that by reason of errors allegedly made in the judgments of Adamson J, which were repeated by Gleeson JA, the ultimate order for security for costs made by this Court should not have been made. As the applicant submitted, “I just want to emphasise that for security of cost, I didn't owe defendant any money.”

5. [24]

   In Porter v Gordian Runoff (No 3) [2005] NSWCA 377, Tobias JA said at [23]-[26]:

6. [25]

   I accept that this list of factors identified in Idoport is by no means exhaustive and that all the relevant circumstances are required to be taken into account, including the Court's straining, consistently with the interests of justice, to avoid taking the step of denying Mr Pi his day in Court.

7. [26]

   In considering these factors I make the following findings:

   1. (1)

      The period that has elapsed since the security was ordered - the order for security for costs was made by this Court on 15 February 2017. Over seven months have elapsed since that time. A sufficient period of time has elapsed for the applicant to have complied with the order to provide security if he was willing and able to do so;

   2. (2)

      The fact that the plaintiff has been on notice of the application for dismissal - it is clear that Mr Pi has been on notice for a significant period of time that the proceedings may be dismissed in the event that there was non-compliance with the order to provide security for costs. It was made clear in the Court’s decision delivered on 15 February 2017 that consideration would be given to dismissal of the proceedings if the security for costs which had been ordered was not provided. That conclusion was amplified by the Court’s directions on 11 April 2017 and at the hearing of the oral submissions on 24 August 2017;

   3. (3)

      The seeming inability of the plaintiff to further fund the proceedings - although no evidence was advanced on this topic, Mr Pi made it clear in his submissions that he did not intend to lodge the security for costs which had been ordered;

   4. (4)

      The prejudice to the respondents - the events that gave rise to the proceedings before the primary judge occurred in January 2011. The respondents have had two judgments in their favour after lengthy and expensive litigation. First, in succeeding in 2015 on the substantive claim before the primary judge and, secondly, in obtaining in 2016 and then defending in 2017 an order for the payment by Mr Pi of security for costs. In this respect, there is a clear public interest in the final determination of the litigation; and

   5. (5)

      The position of the Court - the position of the Court is that this appeal has been stayed since 24 June 2016 when Gleeson JA made his initial order. The potential impact on Mr Pi’s ability to conduct the appeal once the security was ordered was recognised by the Court at paragraphs [33]-[34]. Notwithstanding a similar issue in Gordian, the Court of Appeal in that case dismissed the opponent's motion to discharge Hodgson JA's order.

8. [27]

   That still leaves the question of whether the Court should exercise its discretion summarily to dismiss the appeal for failing to lodge security for costs. As has been pointed out on numerous occasions, summary dismissal of proceedings is an extreme measure. I take into account that even if Mr Pi is able to commence fresh proceedings against these respondents (a matter about which I express no view) he may face a successful Limitation Act defence. However, this is a case where Mr Pi’s default in complying with the order of the Court for the provision of security for costs is continuing and, on the evidence, that order is highly unlikely to be complied with.

9. [28]

   As Mason P pointed out in Fairey v Fairey (No 2) [2000] NSWCA 173 at [52]:

10. [29]

    Taking into account all the relevant circumstances here, and straining, consistently with the interests of justice, to avoid taking the radical step of dismissing the proceedings, this is an appropriate case to dismiss the proceedings for failing to lodge security for costs.

Orders

1. [30]

   I make the following orders:

   1. (1)

      The summons filed on 8 March 2016 is dismissed;

   2. (2)

      Mr Pi to pay the respondents’ costs as agreed or assessed.