Wang v Botany View Hotel

1. [1]

   In Vaughan trading as Johnston Vaughan v Wang [2017] NSWSC 1791 McCallum J made orders under the Vexatious Proceedings Act 2008 (NSW), staying proceedings Mr Wang had brought against Mr Vaughan, his former solicitor and prohibiting him from instituting proceedings naming identified people as parties. In Wang v Botany View Hotel (No 4) [2019] NSWSC 1323 Adamson J made further orders under the Act, varying the orders McCallum J had made, to prohibit Mr Wang from instituting proceedings in New South Wales, without leave of the Court.

2. [2]

   Mr Wang thus requires the Court’s leave to institute any proceedings which he wishes to pursue in this State.

3. [3]

   Such an application must comply with the requirements imposed by s 14 of the Act. They include filing an affidavit with the application that lists all occasions on which the applicant has applied for leave; lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of the section; and discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.

4. [4]

   In March 2021 Mr Wang filed a summons naming Botany View Hotel as the defendant, identifying his claim to be “lodge this summons. The section in the document”. On 6 April he filed an affidavit he had sworn, to which was attached another summons.

5. [5]

   Like the position discussed by McCallum J in many of the proceedings she had to consider, the documents Mr Wang filed were extremely difficult to understand. But I accept that his summons should be understood as seeking the Court’s leave to institute proceedings by filing a summons in the terms of the document later attached to his 6 April affidavit.

6. [6]

   As best as the relief Mr Wang claimed in his summons can be understood, he there sought:

7. [7]

   There is no rule 71 in the Uniform Civil Procedure Rules 2005 (NSW). Rule 7.1 is concerned with who may commence proceedings, including natural persons such as Mr Wang. Rule 3.13 is concerned with the filing of wills. What Mr Wang meant by the reference to these Rules is not apparent, but that does not preclude consideration of his application.

8. [8]

   I am, however, satisfied that the leave which Mr Wang requires before he can pursue the proceedings he wishes to institute, must be refused.

9. [9]

   An application for leave may be dismissed, even if no oral hearing is held: s 15(2). In Mr Wang’s case I am satisfied that justice does not require any oral hearing, because his application can justly be dealt with on the papers.

10. [10]

    Section 15(1) of the Act requires the Court to dismiss an application for leave, if not satisfied that the required affidavit substantially complies with s 14, or if the proceedings are vexatious proceedings, or there is no prima facie ground for the proceedings. “Vexatious proceedings” are defined in s 6 to include:

11. [11]

    As best as can be read, Mr Wang’s affidavit states:

12. [12]

    The contents of the affidavit well establishes that Mr Wang has not there attempted, either to list all other proceedings he has instituted in Australia, or to disclose all facts material to his application, whether supporting or adverse to the application, that are known to him, as s 14 requires. In those circumstances his application must be refused: s 15(1).

13. [13]

    Mr Wang’s proposed summons also establishes that there is no prima facie ground for the proceedings he seeks to pursue. They also appear to be vexatious.

14. [14]

    As best as can be read, the claims Mr Wang identifies in the summons annexed to his affidavit are:

15. [15]

    Again, as best as can be read, the relief he there seeks to claim is:

16. [16]

    What Ms Wang seeks to plead must be considered in light of his extensive history of litigation against the Botany View Hotel up to June 2017, which was discussed by McCallum J at [8]-[26]. That began with a worker’s compensation claim in relation to injuries which he sustained in August 2000, when he was employed at the Hotel. Since then he has repeatedly sought relief against the Hotel in the Workers Compensation Commission; before an arbitrator; in this Court; the Court of Appeal; the High Court, which twice refused him special leave; the Fair Work Division of the Federal Magistrates Court and in the Federal Court of Australia.

17. [17]

    When Mr Wang’s proposed summons is considered in the face of this litigious history, it is impossible to conclude either that Mr Wang has prima facie grounds for the proceedings which he seeks leave to institute, or that they would not be vexatious.

18. [18]

    In the result Mr Wang’s application must be refused.

Orders

1. [19]

   For the reasons given, Mr Wang’s application is dismissed.