Wang v Ford [2024] QCA 72

SUPREME COURT OF QUEENSLAND CITATION: Wang v Ford [2024] QCA 72 PARTIES: YUEHAI WANG (appellant) v BERNARD JOHN FORD (first respondent) RACQ INSURANCE LTD ABN 50 009 704 152 (second respondent) FILE NO/S: Appeal No 14936 of 2023 SC No 369 of 2023 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Cairns – Unreported, 1 November 2023 (Henry J) DELIVERED ON: 3 May 2024 DELIVERED AT: Brisbane HEARING DATE: 29 April 2024 JUDGES: Mullins P, Bond JA and Crowley J ORDERS: 1. The appeal is dismissed. 2. Save in respect of leave to amend the notice of appeal, the application filed 9 April 2024 is dismissed. 3. The application filed 26 April 2024 is dismissed. 4. The appellant must pay the respondents’ costs of the appeal and the applications to be assessed on the indemnity basis. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – where the appellant was a pedestrian injured in a motor vehicle accident, the first respondent was the driver of the motor vehicle and the second respondent the third insurer of the motor vehicle – where the appellant irregularly commenced a proceeding by filing a claim and statement of claim in the Supreme Court before holding a compulsory conference as required by s 51A of the Motor Vehicle Accident Insurance Act 1994 – where the respondents informed the appellant of his procedural errors and agreed on de facto extension of the applicable limitation period – where on application by the second respondent the primary judge ordered the claim to be set aside – whether the -- 1 of 7 -- 2 primary judge erred in the exercise of his discretion by not ordering the claim to be stayed pending compliance with s 51A Motor Accident Insurance Act 1994 (Qld), s 51, s 51A Uniform Civil Procedure Rules 1999 (Qld), r 660, r 661, r 768 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, cited Boulter v Batten [2010] QDC 56, cited Hamling v Australia Meat Holdings Pty Ltd (No 2) [2007] 1 Qd R 315; [2006] QCA 422, cited Saltner v Watson [2007] QSC 191, cited COUNSEL: The appellant appeared on his own behalf L A Neil for the respondents SOLICITORS: The appellant appeared on his own behalf Jensen McConaghy Lawyers for the respondents [1] THE COURT: On 28 August 2019 the appellant was a pedestrian and was injured in a motor vehicle accident. The first respondent was the driver of the motor vehicle and the second respondent the third insurer of the motor vehicle. The appellant filed a claim and statement of claim in the Supreme Court on 5 June 2023 seeking to recover damages for personal injuries against the first and second respondents as, respectively, the first and second defendants. Although the appellant had previously been represented by solicitors, he had lost confidence in his representation and had no solicitors in the proceeding which he commenced. [2] It is convenient to refer to the parties to that proceeding as the appellant and the first and second respondents (together, the respondents). [3] Unfortunately, before filing the claim, the appellant had not complied with the provisions of s 51A(1) of the Motor Accident Insurance Act 1994 (Qld) (the Act), which made it compulsory for there be a conference with the parties before any claim was filed. The relevant compulsory conference could have been dispensed with if all parties agreed to that outcome: s 51A(4). But, that had not happened either. Furthermore, the Court could on application by a party and for good reason order that the compulsory conference be dispensed with: s 51A(5). No such application was made and no such order was obtained before the claim was filed. [4] The appellant’s failure to comply with s 51A(1) of the Act rendered the proceeding which he had commenced vulnerable to an application by the respondents to strike out the initiating process or to move for summary dismissal: see Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at [34] to [36]; Hamling v Australia Meat Holdings Pty Ltd (No 2) [2007] 1 Qd R 315; [2006] QCA 422 at [18] and Boulter v Batten [2010] QDC 56 at [12] to [16]. In the event such an application was made, it would be relevant to consider whether the plaintiff would be at risk of being defeated by the Limitation of Actions Act 1974 (Qld) in the event that the irregularly commenced proceeding was set aside: see Boulter v Batten at [18]. In such circumstances a court might well exercise its discretion to formulate another procedural response to the failure to comply with s 51A(1). A court might in such circumstances, for example, stay the irregularly commenced proceeding pending -- 2 of 7 -- 3 compliance with s 51A rather than set the proceeding aside: cf Saltner v Watson [2007] QSC 191. [5] By application filed 18 July 2023, the second respondent applied to the Court for orders that the appellant’s claim be either (a) set aside or (b) stayed pending compliance with s 51A of the Act. The second respondent also sought an order that the appellant pay its costs of the application. [6] That application was heard on 15 September 2023. The appellant’s primary language is Mandarin and he had little ability to speak or read English. He represented himself at the hearing and was assisted by an interpreter. The transcript of the hearing formed part of the appeal record. [7] The second respondent’s supporting evidence revealed that before bringing the application – (a) the respondents had advised the appellant that he had no entitlement yet to commence court proceedings given his non-compliance with the procedural requirements of the Act and that unnecessary costs would be incurred if he did not discontinue; and (b) the respondents had at the request of the appellant agreed to extend the limitation period to 28 February 2024. [8] The second respondent’s submissions drew both those matters to the primary judge’s attention. The second respondent submitted that the order which it sought was that the proceeding be set aside rather than stayed; that liability had been admitted; and that in the event the matter did not resolve at the compulsory conference, the appellant could file again. The second respondent handed up a draft order which proposed that the orders of the Court would be: “1. That the Claim and Statement of Claim in this proceeding be set aside pursuant to rule 16(e) of the Uniform Civil Procedure Rules 1999. 2. The Plaintiff pay the Second Defendant’s costs of the proceeding, including this application, on a standard basis.” [9] After hearing oral argument, the primary judge adjourned briefly and then the hearing resumed. The primary judge had prepared a document entitled “Judges notes – not an official transcript” and provided it to the interpreter to assist the interpreter in explaining the reasons which he was about to pronounce and the orders he was about to make. [10] The primary judge then gave ex tempore reasons for judgment, the transcript of which was before this Court. The primary judge recorded that during the course of the hearing he had explained to the appellant that, absent either of the two mechanisms for dispensing with the need for a compulsory conference to which we have earlier referred, the requisite outcome was that the claim that he had filed must be set aside. The primary judge explained that the appellant had made a legal error in filing his claim without there having first been a compulsory conference and that the respondent had at an early stage explained that error, but because the appellant had then ignored the error, the appellant needed to pay the respondents’ costs. The primary judge then made the following orders orally in Court: -- 3 of 7 -- 4 “1. Mr Wang’s claim is set aside. 2. Mr Wang will pay the defendants’ costs of this application to be assessed on the standard basis if not agreed.” [11] The orders pronounced orally were the same as those which had been recorded in the written notes. Subsequently, the Registrar signed a formal order bearing the date of 15 September 2023 recording orders in the same terms. The form of formal order mistakenly recorded that the initiating document was an application filed 5 June 2023 but that mistake is of no relevance. As a matter of law, the orders made by the primary judge took effect from the time they were made orally in Court on 15 September 2023: see r 660 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The subsequent filing of a formal written order was necessary for the purposes set out in r 661 of the UCPR. [12] By application filed on 18 September 2023, the appellant applied to the Court for the following orders: “1. Pursuant to r 667 or r 668 of the Uniform Civil Procedure Rules 1999, vary the Court order dated 15 September 2023 to: a. Stayed, pending compliance of the parties with s 51A of the Motor Accident Insurance Act 1994(Qld); and b. No cost order. 2. No cost order for this application.” [13] That application came on for hearing before the primary judge on 1 November 2023. Again, the appellant was self-represented and again obtained the assistance of an interpreter. The transcript of the hearing formed part of the appeal record. The appellant provided a form of draft order to the Court which sought orders consistent with his application filed on 18 September 2023. The applicant also obtained leave to read and file a further application (and provided a consistent form of draft order) which sought the following orders: “1. Pursuant to r 388(1) and (2) of Uniform Civil Procedure Rules 1999: a. Order the parties or registrar or together to correct the mistakes in the signed 15 September 2023 order by appointment; or, b. Correct the mistakes, in the hearing dated 1 November 2023; or. c. Any other orders to correct the mistakes, if the court considers appropriate. 2. No cost order for this application.” [14] Having heard oral argument, the primary judge adjourned briefly and upon resumption then gave ex tempore reasons for judgment, again speaking from typewritten notes entitled “Judges notes – not an official transcript” which he had provided to the interpreter in the same way as he had proceeded on 15 September -- 4 of 7 -- 5 2023. Again, the transcript of his Honour’s ex tempore reasons and orders was before this Court. [15] The primary judge noted that the application sought a stay of the orders made on 15 September 2023 “pending compliance of the parties with s 51A”. He noted that the appellant’s submissions had in part sought to question the legitimacy and correctness of the reasons and orders he had made on 15 September 2023. The primary judge concluded that the appellant’s remedy, if he sought to disturb the orders made on 15 September 2023, was an appeal. His Honour went further to address matters that the appellant had mentioned during his oral address to explain their essential irrelevance to the application to amend the orders made on 15 September 2023. [16] First the primary judge dealt with submissions made by the appellant recording his dissatisfaction with rehabilitation services provided by the second respondent. His Honour pointed out that such a complaint could be pursued in a number of ways pursuant to s 51(5) of the Act. However, the application before the Court was not an application for an order of the Court pursuant to s 51(5)(b) but was an application to stay the setting aside of a claim which had been initiated prematurely in breach of section 51A. [17] Second the primary judge addressed what he characterised as erroneous expressions of concern regarding the expiration of a limitation period applicable to the appellant’s claim, which concern had been “regrettably accompanied by erroneous allegations of dishonesty towards the respondents”. His Honour found that the appellant’s position was well protected thanks to the entirely reasonable conduct of the respondents. His Honour recorded that the respondents had, in written correspondence back in August 2023, consented to an extension of the relevant period to 28 February 2024 and that in open court that day the respondents had consented to an extension of limitation period to 60 days after the holding of the compulsory conference. (Before this Court the respondents confirmed that position still obtained.) [18] His Honour determined that, no proper basis having been advanced to order a stay of the orders which he made on 15 September 2023, the application ought be dismissed. [19] His Honour further found that on an objective consideration it was unreasonable to have pursued such an application and that the respondents, who had forewarned the appellant of the folly of pursuing the application, should never have been troubled by it. His Honour thought it was a proper situation in which to order costs to be assessed on the indemnity basis. In open court his Honour made these orders: “1. The application is dismissed. 2. The applicant will pay the respondents’ costs of the application to be assessed, if not agreed on an indemnity basis.” [20] The orders pronounced orally were the same as those which had been recorded in the written notes. The Registrar subsequently signed and sealed a formal order recording the order of the Court in the same terms they had been announced in his Honour’s ex tempore reasons for judgment. [21] The orders made orally by the primary judge overlooked the application for which the appellant had obtained leave to read and file. The primary judge caused that to be dealt with later in the day under the slip rule when the registrar signed and sealed an order dated 1 November 2023 in these terms: -- 5 of 7 -- 6 “THE ORDER OF THE COURT (in chambers under the slip rule, the Court having overlooked making orders 1 and 2 below earlier today and • the Court having given leave for the filing and reading during submissions of Mr Wang's application to correct error and it having been explained during submissions there is no error to correct; and • there consequently being no material additional cost burden for the respondents in meeting that application) IS THAT: 1. Mr Wang's application to correct error filed by leave today is dismissed. 2. No order as to costs in respect of the application referred to in order 1. 3. This order is to be placed on the Court file by the Registrar as an order of the Court and the Registrar is to email a copy of it and a google translate Mandarin version thereof to the parties.” [22] The appellant filed a notice of appeal and, by leave, an amended notice of appeal. The application which sought leave in that respect was filed on 9 April 2024 and also sought various other types of leave, apparently premised on the propositions that orders had not been properly made or filed or needed correction, and that the Court needed to be informed about various irrelevant communications between the appellant and the registry. The appellant also filed an application on 26 April 2024 pursuant to r 768(2)(a) of the UCPR for an order that this Court call for a report from the primary judge answering various questions “if [the questions] arise and hard to determine in the hearing of the appeal”. We have recited the events which happened below and their legal significance. There is nothing ambiguous or hard to understand in that recitation, nor is there any need to call for a report from the primary judge or to receive further evidence. Unfortunately, the content of the appellant’s notices of appeal and applications and the tenor of the appellant’s submissions in this Court fly in the face of a proper understanding of what happened. [23] The appellant submitted that the orders made by the primary judge on 15 September 2023 were unreasonable. They were not. They were an orthodox response to the application before the primary judge which was itself founded on the appellant’s failing to respond reasonably to a proper identification of his own procedural missteps. In the circumstances before the primary judge it was clear that the appellant was not at risk of being defeated by the Limitation of Actions Act 1974 in the event that the claim was set aside, but the appellant sought to recommence after having had the requisite s 51A(1) compulsory conference. Accordingly, it could not be said that the primary judge’s discretion miscarried when he chose to order that the claim be set aside rather than stayed pending compliance with s 51A. [24] Before this Court the appellant submitted that the primary judge had not properly understood his application filed on 18 September 2023. He submitted that the application was not for a stay of the orders which the primary judge had made but was to replace the orders which had been made with an order that the proceeding which the appellant had commenced be itself stayed rather than be set aside. The -- 6 of 7 -- 7 respondents accept that was so, but correctly submit that the inaccuracy of the language used by the primary judge to describe the application does not matter. The primary judge correctly understood that the essence of the application was to disturb the orders which he had made on 15 September 2023 and correctly rejected the proposition that any proper basis had been advanced for so doing. In our view the primary judge did not err in dismissing the application to disturb the orders. If we were to exercise the discretion afresh, we would make the same order. [25] Before this Court the appellant also sought to suggest that there was some confusion in the orders which the primary judge had made because they were not the same as those which had been recorded in draft orders which had been handed to the Court during the course of submissions. That argument was misconceived. The primary judge was not bound to make orders in the form of the drafts either party had provided. And, as we have explained, there was no ambiguity whatever as to the orders which the primary judge did make. [26] The appellant also suggested that the primary judge had failed to give reasons for the orders which he made because the judges’ notes which he had provided were not reasons for the order. The suggestion was bizarre. The notes did not purport to be the reasons. They were plainly a device by which the judge sought to assist the interpreter to perform his duty so that the appellant would understand the reasons and orders at the time they were given. As would have been obvious to the parties, his Honour’s reasons and orders were those which he gave orally and in open court. [27] The appellant also repeated in his written submissions before this Court the unintelligible and unfounded suggestion that there was some dishonesty by the respondents in relation to the limitation period. The primary judge dealt with that suggestion correctly. As was clear before the primary judge, and was repeated by the respondents before this Court, the respondents’ position is that the appellant may recommence his claim in Court without risk of being defeated by the Limitation of Actions Act 1974, so long as he does so within 60 days of a s 51A compulsory conference having been held. [28] There is otherwise no merit in recording and specifically dealing with the grounds of appeal or the submissions made by the appellant. The appellant has not identified any arguable basis to conclude that the primary judge made any relevant factual, legal or discretionary error in either the orders of 15 September 2023 or those of 1 November 2023. [29] The respondents seek their costs on an indemnity basis. We agree that the appeal and the applications must be regarded as an undue prolongation of a case which should never have been advanced by the making of groundless contentions, including groundless contentions of fraud. On any objective consideration of the circumstances, they should never have been brought. [30] We order as follows: (a) The appeal is dismissed. (b) Save in respect of leave to amend the notice of appeal, the application filed 9 April 2024 is dismissed. (c) The application filed 26 April 2024 is dismissed. (d) The appellant must pay the respondents’ costs of the appeal and the applications to be assessed on the indemnity basis. -- 7 of 7 --