Wang v Botany View Hotel (No 2)

THE COURT: On 9 October 2017 we dismissed an application by Mr Wang for leave to appeal from an order of the Common Law Division (McCallum J) summarily dismissing his proceeding (Wang v Botany View Hotel [2017] NSWCA 249).

On 16 October 2017 Mr Wang filed a notice of motion. We set out below the relief sought in the notice of motion and what are apparently the grounds upon which the relief is claimed, but omitting an 11-page typed annexure. Although he does not say so, we assume that Mr Wang is seeking an order setting aside the orders made on 9 October 2017. Because the notice of motion was filed within 14 days of the entry of the orders of 9 October 2017 the Court has power to set aside those orders (Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A)).

The relief claimed in the notice of motion is as follows:

Mr Wang has written on the notice of motion what appear to be grounds for the relief sought. They are as follows:

The 11-page annexure is largely incomprehensible, but evidently it seeks to re-ventilate the earlier decisions to which we referred in our reasons of 9 October 2017.

We have decided that this application should be dealt with on the papers.

In Majak v Rose (No 5) [2017] NSWCA 238 this Court (Leeming and Simpson JJA and Emmett AJA) said of r 36.16(3A):

It appears that one of Mr Wang’s complaints is that he was required to pay $1,441, being what he says is a fee for a full appeal, but was permitted only to address the Court for half an hour on the application for leave to appeal. In fact, the fee of $1,441 is the prescribed fee for an application for leave to appeal. The fee for filing a notice of appeal for an individual is $3,662. In allowing Mr Wang half an hour for oral address, he was given greater latitude than is generally afforded to a party for oral address on an application for leave to appeal.

Even if an incorrect fee had been charged, that would not have been a ground for reopening the application.

A second matter of complaint appears to be that the Court repeated the same matters as McCallum J had referred to. It is true that we found no error in McCallum J’s reasoning and would have been content to refuse the application for leave simply on the ground that the primary judge’s reasons were plainly correct. That could not reasonably indicate to any reasonable observer that the Court was or might be “partial”.

As to the ground that “worker established public safety” we apprehend that Mr Wang is referring again to his earlier litigation in which medical evidence was given and accepted (Mr Wang says wrongly) that his seizure at work was directly related to injuries he sustained in a prior assault. His accompanying 11 pages of notes refer to allegedly false medical reports and in that connection reference is made to the NSW Ombudsman. As we and others have said, it is very difficult to comprehend Mr Wang’s complaints. However, the 11-page accompanying set of notes and a bundle of documents provided in support of the notice of motion refer in an incoherent way to his earlier workers’ compensation proceedings, medical evidence produced in connection with those proceedings, and subsequent court decisions. Those matters have been finally determined. They cannot be re-opened.

The reference to the employer being a “recovered debtor” appears to be to Mr Wang’s claim that for some reason the respondent or its insurer, QBE, owes him a large sum of money. At least, this is what we infer from his assertion in the typed annexure: “QBE copy false document for business gain refused pay, $3 B, dismiss”. He does not demonstrate any arguable grounds for saying that the respondent is his debtor.

Mr Wang’s fifth point is unintelligible. The reference to Riley v California is to the decision of the United States Supreme Court that, in the United States, pursuant to the Fourth Amendment of the US Constitution (that provides protection against unreasonable searches of people’s papers and effects), police require a warrant to search a mobile phone (Riley v California 573 US 13-132 (2014)). That can have no relevance to Mr Wang’s claims.

Whatever Mr Wang might be attempting to convey, he had the opportunity to do so at the hearing of his application for leave to appeal. He did not do so.

There is nothing in the materials provided by Mr Wang that persuades us that an oral hearing is warranted. Mr Wang’s materials do not suggest that there was any error in our decision to dismiss Mr Wang’s application for leave to appeal. If the decision is erroneous, Mr Wang’s only remedy lies in an application for special leave to appeal to the High Court.

For these reasons we order that the applicant’s notice of motion filed on 16 October 2017 be dismissed with costs.