Yao v State of New South Wales; Chen v State of New South Wales

HIS HONOUR: These matters may be dealt with together.

On 16 May 2025, the plaintiffs commenced the proceedings by filing statements of claim in cognate terms. The plaintiffs are married. They allege that on or about 22 February 2021, they were wrongfully arrested, detained and charged with multiple criminal offences. On or about 21 October 2021, the Office of the Director of Public Prosecutions formally withdrew all charges against Mr Chen, and on or about 7 February 2022 did so against Ms Yao. The plaintiffs allege that their prosecution was malicious, amounted to misfeasance in public office and a collateral abuse of power.

In accordance with the Uniform Civil Procedure Rules, the defendant was required to file its defence by 13 June 2025: UCPR 14.3(1). It did not do so.

On 5 June 2025, Registrar Hedge granted an extension of time to 23 July 2025 for the filing of defences. The plaintiffs contended that this discretionary decision was invalid and made without the provision to them of any evidence in support. By notice of motion filed on 26 June 2025, the plaintiffs therefore sought an order pursuant to UCPR 49.20 setting aside the Registrar’s extension. On 25 July 2025, I confirmed the Registrar’s decision. I also made the following orders:

On 20 October 2025, and before the matters returned to me on 5 December 2025, the plaintiffs filed further motions seeking judgment pursuant to UCPR 13.1 or 17.7. The apparent inspiration for this arguably audacious and possibly premature application would appear to be the defendant’s response to the plaintiffs’ notices to admit facts dated 2 September 2025 served upon it by the plaintiffs. The defendant disputed the notice to admit facts by its response dated 16 September 2025.

The plaintiffs rely on affidavits affirmed on 7 October 2025 in which they depose in accordance with the rules to their belief that the defendant has no defence to their claims on the issue of liability. The basis of that belief is a document which is, in effect, the plaintiffs’ written submissions. They seek judgment on the issue of liability with damages to be assessed.

The plaintiffs are neither legally trained nor legally represented. Their written submissions reflect these difficulties. Although the submissions are comprehensible in the sense that the words used can be understood, they assume that the defendant must lose. This is presumably upon the basis that the notice disputing facts should be set aside as it puts some matters in issue that cannot legitimately be in contest. The defendant’s response is to say that the notice to admit facts itself potentially amounted to an abuse of process but that the defendant chose in an omnibus fashion to put the plaintiffs to proof rather than spend time and money arguing about the form of the document.

It is not for me to decide that issue now. It is sufficient to observe that the plaintiffs will in due course be required to establish a series of technical and factual matters that are not satisfied merely by the proof of the so-called disputed facts or by setting aside of the notice disputing them. Among other things, the plaintiffs will have to prove that the prosecution was instituted without reasonable and probable cause and that the prosecution was commenced or maintained maliciously. These are not matters that are, in my experience in cases of this kind, likely to be amenable to summary disposal having regard to the relevant test: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1964] HCA 69; Spellson v George (1992) 26 NSWLR 666 at 678.

The defendant has, by its defence, put malice in issue, along with absence of reasonable and probable cause, misfeasance in public office and abuse of process. It cannot in my view be established, on this application, that the defendant has no real defence arising from the pleadings or that there are no serious conflicts as to material facts or important matters where credit issues may be involved.

The plaintiffs’ motions are entirely without merit. The question of whether they will be able to succeed on their claims following a contested hearing is an entirely separate issue. The motions should be dismissed with costs.