Wang v State of New South Wales (No 3)

THE COURT: This judgment addresses two notices of motion, one filed by the State of New South Wales (“the State”) on 20 April 2020 and the other filed by Ms Li Wang on 1 May 2020.

Proceedings between these parties have a long history, some of which is referred to in our judgment of 20 February 2020 ([2020] NSWCA 21). By that judgment we dismissed an application by Ms Wang for leave to appeal. By our further judgment of 20 April 2020 we dismissed a motion filed by Ms Wang filed on 3 March 2020 to set aside the 20 February judgment. We concluded that the motion was simply an impermissible attempt by Ms Wang to re-argue her leave application which we dismissed on the earlier occasion. Ms Wang’s notice of motion of 1 May 2020, with which this judgment is in part concerned, is of the same character. By it, she seeks to re-agitate arguments she previously put. She has not advanced any sensible arguments in support of her new motion which the Court needs to address. As a result, Ms Wang’s notice of motion filed on 1 May 2020 should be dismissed with costs.

In addition, as sought by the respondents to Ms Wang’s motion, an order as follows, to the effect of that made by this Court in Teoh v Hunters Hill Council (No 7) [2012] NSWCA 356, should be made:

The repetition of essentially the same claim by Ms Wang, almost immediately after delivery of judgment in Wang (No 2), has persuaded us that such an order should be made.

We have not extended the order to any further steps that might be taken by Ms Wang at first instance, contrary to the respondents’ request. Whether an order having that effect should be made is a matter for a divisional judge to determine upon full information, which we do not have, about steps taken by Ms Wang at first instance.

The other notice of motion presently before the Court is the State’s motion filed on 20 April 2020 (which was the day on which we delivered the second of our judgments referred to above) seeking a specified gross sum order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW), or alternatively an order that the State’s costs of the motion dealt with in that judgment of 20 April be paid on an indemnity basis.

The State’s motion is supported by an affidavit of Mr Raphael Hudson, a solicitor employed in the office of the Crown Solicitor. Mr Hudson identifies in detail the costs incurred by the Crown Solicitor on a solicitor and client basis. He then assesses the recoverable party/party costs as $10,281.60 but indicates that only a conservative amount of $5,000 is sought by the State as the subject of a gross sum costs order.

Mr Hudson’s lengthy experience as a solicitor qualifies him to make this assessment. He identifies the reasons for seeking the award as follows:

The reasons given by Mr Hudson for seeking the lump sum order are persuasive. We adopt them and shall make the order sought.

For these reasons, we make the following orders: