Luke v Kwon [2011] NSWSC 36 (14 February 2011)

Last Updated: 14 March 2011

Supreme Court New South Wales

Case Title:	Luke v Kwon
Medium Neutral Citation:	[2011] NSWSC 36
Hearing Date(s):	31 January 2011
Decision Date:	14 February 2011
Jurisdiction:
Before:	McCallum J
Decision:	Proceedings no. 417800 of 2010 in this Court between the defendant as plaintiff and the plaintiffs as defendants are stayed. Subject to section 14 of the Vexatious Proceedings Act 2008, the defendant is prohibited from commencing any proceedings in the State of New South Wales against either of the plaintiffs. The defendant is to pay the plaintiffs' costs of the proceedings.
Catchwords:	Vexatious proceedings - whether plaintiff has frequently instituted or conducted vexatious proceedings - where small number of proceedings instituted - defendant persisting in filing pleadings repeating the same allegations where earlier pleadings struck out - orders made limited to prohibiting proceedings against the plaintiffs
Legislation Cited:	Vexatious Proceedings Act 2008 Uniform Civil Procedures Rules rule 14.28
Cases Cited:	Attorney-General of NSW v Wilson [2010] NSWSC 1008 Attorney-General v Gargan [2010] NSWSC 1192 Jones v Cusack [1992] HCA 40; [1992] 109 ALR 313 Siteberg Pty Ltd v Maples [2010] NSWSC 1344
Texts Cited:
Category:	Principal judgment
Parties:	Sylvia Luke and Frank Luke (Plaintiffs) Ki Bun Kwon (Defendant)
Representation
- Counsel:	Counsel: JR Young (Plaintiffs) In person (Defendant)
- Solicitors:	Solicitors: Kim & Associates (Plaintiffs)
File number(s):	2010/289332
Publication Restriction:

Judgment

1

Since May last year, Ki Bun Kwon has instituted three sets of proceedings against Mrs Sylvia Luke and Mr Frank Luke claiming essentially the same relief. Two of the claims have been struck out as disclosing no reasonable cause of action or otherwise amounting to an abuse of process. The third, filed only in December, is still before the Court. Mr and Mrs Luke allege that all three proceedings are vexatious. They now seek an order under the Vexatious Proceedings Act 2008 prohibiting Ms Kwon from instituting proceedings against them.

2

The Vexatious Proceedings Act creates a discretionary statutory remedy against a person who has "frequently instituted or conducted vexatious proceedings in Australia". Upon being satisfied in those terms, the Court has power to stay any existing proceedings already instituted by the person and to prohibit the person from instituting any further proceedings.

3

The effect of such an order is that the person cannot prosecute any legal claim without leave of the Court. It does not preclude the person absolutely from ever pursuing any claim: see s 14 of the Act. Nonetheless, an order of the kind sought by Mr and Mrs Luke represents a substantial curtailment of the ordinary right of any citizen to be heard as to any business he or she may have before the Court. It should be regarded as an extreme remedy.

4	The Act defines "vexatious proceedings" in the following terms (see s 6 of the Act):

6. Meaning of "vexatious proceedings"

In this Act, "vexatious proceedings includes:

(a) proceedings that are an abuse of process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose

5

It is not in dispute that Ms Kwon has instituted the three sets of proceedings against Mr and Mrs Luke. The principal issue to be determined in the present application is whether, in bringing those actions, Ms Kwon has "frequently instituted or conducted vexatious proceedings" within the meaning of the Act such as to enliven the Court's discretion.

The proceedings instituted by Ms Kwon

6	In May 2007, Ms Kwon obtained an Apprehended Violence Order against Mrs Luke. Mrs Luke, in turn, obtained a reciprocal order against Ms Kwon. Mr and Mrs Luke do not rely on either of those proceedings in support of the present claim.

7

In May 2010, Ms Kwon commenced proceedings against Mr and Mrs Luke by statement of claim filed in the Local Court. The pleading is a difficult document. It opens, in language that is tolerably clear, with an allegation that in 1992 Mrs Luke stole a suit worth $500 and $5 in cash from Ms Kwon's dress shop. The claim further alleges that in 1998 Mrs Luke stole Ms Kwon's Christian Dior sunglasses worth $500. It must be acknowledged that those allegations, taken alone, would at least have been capable of sustaining a cause of action in conversion or detinue except for the fact that they are probably now statute-barred.

8

The balance of the pleading consists of a series of garbled allegations of various degrees of relevance to Mr and Mrs Luke. Although the language of much of the pleading is difficult to follow, it is expressed clearly enough to leave me comfortable in the conclusion that no reasonable ground for a claim against either Mr or Mrs Luke is disclosed.

9

Paragraph 3 of the pleading alleges that "some one" stole $200 million from Ms Kwon's father's company and paid approximately $2 million to Mrs Luke's two sons overseas. Paragraph 4 alleges that Mr and Mrs Luke "snatched" Ms Kwon's son's money and a car (a Holden). Paragraph 5 alleges that Mrs Luke has harassed Ms Kwon by frequently ringing her at night and then hanging up the phone and by sending her "dirty letters". Paragraph 6 alleges that Mrs Luke broke the window of a friend of Ms Kwon's by throwing a stone at it. The last paragraph (not numbered) alleges that "some other people" have also snatched money from Ms Kwon's sons.

10	A postscript to the pleading asserts that Mrs Luke made "a Big Rumour" that Ms Kwon stole $100 from her. The postscript makes a series of further allegations against Mrs Luke which, although serious, appear to be unrelated to any potential claim.

11

Annexed to the statement of claim is a handwritten appendix which appears to be mostly unrelated to the matters raised in the pleading. It explains that the Canterbury Leagues Club is Ms Kwon's father's own club. Ms Kwon says the club is owned by a Hyun Dae company but that the capital money is her father's own money. She says the Kia company, which manufactures cars and trucks, is also her father's own money but that the money was stolen from him.

12	The appendix also states that Ms Kwon won substantial sums of money on the poker machines at the club but that the club did not pay out her winnings; that she thinks it is "Peter" who stole the $200 million and that various governments are liable to repay her father's money.

13

Separately, Ms Kwon recites in the appendix some of the 5,000 years of history in her country of the Korye Royal Family. Ms Kwon asserts that her father was the Prince of Korye. No connection whatsoever is asserted between those matters and Mr and Mrs Luke. Some of the allegations made in the appendix appear to be informed by a measure of delusional thinking.

14

Mr and Mrs Luke sought advice in respect of those proceedings from a solicitor, Mr Sean Kim. On 8 July 2010, Mr Kim was successful in obtaining an order striking out the claim, apparently under rule 14.28 of the Uniform Civil Procedures Rules although that is not articulated in the orders made (exhibit B).

15

On 30 July 2010, Ms Kwon commenced a second set of proceedings against Mr and Mrs Luke by statement of claim filed in the Local court. The second statement of claim is in substantially the same terms as the first. It includes all of the same allegations. It also includes some additional information in the section that formerly appeared in the appendix (now incorporated in the body of the pleading). The additional information relates primarily to the history of the Korye dynasty. It concludes with the revelation that it was Mrs Luke's grandmother "who killed Korye King of Kong Min King".

16	A further difference in the second statement of claim is that it articulates the relief claimed, which was not a feature of the first pleading. The relief claimed is as follows:

"RELIEF CLAIMED

1. What Silvia Chung/Luke Stolen my things and A.V.O. Solicitor Cost,

2. Silvia Chung/Luke 2 Sons got my Father's money, it is $2,Million, Approxi including interest at Bank standard, it plus "What is, it achieved how much, now" by that money it at least 95% confirm.

Amount of Claim $19,000 (a Car)

Interest $$3,000 (6-7yrs)

Filing fees $197.00

Service fees $68.00

Solicitors fees $3,000 AVO (including this)

In overseas sons' $2,000,000 (IF CAN IN AUSTRALIA)

TOTAL $2,025,265,

CONSOLATION MONEY $100,000 ADD"

17

The second statement of claim was accompanied by an affidavit sworn by Ms Kwon the terms of which are largely repetitive of the allegations set out in the pleadings. It also attached a statutory declaration purportedly made by a witness. A surprising feature of the statutory declaration is that it is signed before Ms Kwon as a Justice of the Peace. The statutory declaration adopts language and punctuation that is very similar to the language and punctuation used by Ms Kwon in the pleadings.

18

Upon being served with the second statement of claim, Mr and Mrs Luke again retained Mr Kim to act on their behalf. Mr Kim did not file a further notice of motion immediately but took the precaution of writing to Ms Kwon requesting her to file a claim in proper form and warning her that, unless an amended statement of claim was received by a certain date, a notice of motion would be filed to dismiss the claim.

19

On 20 August 2010 Ms Kwon filed an amended statement of claim in the second proceedings. The amended pleading contained substantially the same allegations as the first two pleadings, although in condensed form. It was accompanied by a further copy of the earlier affidavit. The relief sought in the amended pleading was substantially the same as in the earlier pleading.

20

Mr and Mrs Luke commenced these proceedings on 31 August 2010. On 18 November 2010, the second proceedings in the Local Court were dismissed on the application of Mr and Mrs Luke. Ms Kwon was ordered to pay their costs but has not done so. On 16 December 2010, Ms Kwon commenced a third set of proceedings against Mr and Mrs Luke by summons filed in this Court (exhibit A).

21	The relief claimed in the proceedings in this Court is expressed in the following terms:

"RELIEF CLAIMED

1. The order made by local court's Registrar P Olner, "The plaintiff pay for the Defendant's cost." It is not fair and in-justice. Therefore, It is order to makes it in-validity.

2. The order for proceedings of statement claim in local court, "Do the right judgement." It because, it has the witness and the evidence.

3. The order, stops "Snatches my Sons' money." As well pay back it how much Snatched the amount of money and what defendant Stolen the plaintiff's things' cost.

4. Costs pay (A.V.O. $3,050 etc)

5. Such further order, the court thinks fit.

# It is, If can or whether no, $2,000,000, it approxi. The 1 st defendant's 2 sons' Money in overseas, it has to be Refund."

22	The summons was accompanied by an affidavit setting out substantially the same allegations as are contained in the earlier pleadings, in similarly garbled terms.

Are the proceedings vexatious?

23	Mr Young, who appeared for Mr and Mrs Luke, submitted that all three proceedings are vexatious. As to Mr Luke, Mr Young noted that it is very difficult to see what the claim is at all. The only connection between Mr Luke and the proceedings appears to be that he is married to Mrs Luke.

24

As to Mrs Luke, Mr Young noted that the claims in respect of the $500 suit, the $5 in cash and the sunglasses relate to events alleged to have occurred in 1992 and 1998. He submitted that any cause of action based on those allegations would in all likelihood be statute-barred. He submitted further that I should be satisfied that Ms Kwon is well aware of that hurdle to her claims, since she has expressly stated (in her affidavit filed in support of the summons in the Supreme Court):

"I know that the time Limit, but it is by Circumstance. She never stops her Theft behaviour."

25	Mr Young also relied on the fact that all of the pleadings contain allegations that are largely incoherent, irrelevant to any discernible proper claim and in many instances scandalous.

26	Separately, as to the second and third proceedings, Mr Young relied upon the fact that they rest on allegations that are largely repetitive of those made in the first proceedings, which were struck out as an abuse of process.

27

Ms Kwon had little to say in response to those submissions. As to the statement of claim in the first proceedings, she proffered only the explanation that part of the document was handwritten for the reason that her typewriter broke down whilst she was preparing it. It is possible, in light of her submissions put on that issue, that Ms Kwon was labouring under the misapprehension that the only reason the document was struck out was that it was handwritten and not typed. She offered no explanation for her persistence in filing pleadings and affidavits in more or less the same terms, and plainly did not appreciate the vice of that approach.

28

I am satisfied that each of the proceedings Ms Kwon has instituted against Mr and Mrs Luke is a vexatious proceeding within the meaning of the Act. Leaving aside the claims relating to the suit, the cash and the sunglasses, which appear to be statute-barred, none of the proceedings discloses any reasonable ground for a claim against either Mr or Mrs Luke. Further, in my view, the contents of the pleadings and Ms Kwon's persistence in filing them in such terms notwithstanding earlier orders striking them out has the result that, at least as to the second and third proceedings, they are being conducted in a way so as to harass or annoy Mr and Mrs Luke.

Has Ms Kwon frequently instituted or conducted vexatious proceedings?

29

A more difficult question is whether Ms Kwon has "frequently instituted or conducted" vexatious proceedings. A helpful discussion as to the principles relevant to determining that issue is contained in the judgment of Davies J in Attorney-General of NSW v Wilson [2010] NSWSC 1008 at [9] to [17], summarised in his Honour's later decision Attorney-General v Gargan [2010] NSWSC 1192 at [7].

30	Of particular importance in the present case is the proposition that the term "frequently" is a relative term: Jones v Cusack [1992] HCA 40; [1992] 109 ALR 313. Whether that requirement is fulfilled must be judged in the context of the litigation being considered.

31	The number of proceedings that will satisfy the requirement may be small if the proceedings are an attempt to relitigate an issue already determined against the person: Wilson at [13] and [146] to [147].

32	The content of the notion that "frequently" is a relative term is nicely illustrated in the judgment of Ball J in Siteberg Pty Ltd v Maples [2010] NSWSC 1344, where his Honour said:

For example, it might be said of someone who goes overseas 4 times a year that the person does so frequently. The same could not be said of someone who walks to work 4 times a year. It is uncommon for most individuals to be involved in court proceedings. Consequently, it is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently.

33

Ball J noted further that it is necessary for the court to examine the nature of the applications or proceedings brought. His Honour expressed the view that "the court may be more willing to conclude that vexatious proceedings are brought frequently where the proceedings are brought against the same person or involve the same subject matter".

34

It may be accepted that, in the present case, the number of proceedings commenced by Ms Kwon against Mr and Mrs Luke is small. In three sets of proceedings, Ms Kwon has filed four separate statements of her claim against them. It is perhaps unusual to see an application under the Vexatious Proceedings Act based on so few proceedings.

35

The issue must be judged, however, by reference to the position of Mr and Mrs Luke. They have now been confronted with the same groundless claims, articulated in almost identical terms, in three pleadings, two affidavits and a summons. The same claims have been repeated in three further affidavits sworn by Ms Kwon in defence of the present application.

36	Mr and Mrs Luke have retained a solicitor to act on their behalf to defend each claim. He has twice succeeded in having pleadings struck out, on each occasion only to be met with a new claim pleaded in almost identical terms.

37

In all of the pleadings the same allegations are made in almost the same terms. The allegations are, in the main, incoherent, scandalous and without reasonable ground. The conclusion that Ms Kwon has persistently pursued those allegations notwithstanding the fact that they were struck out when first made is, in my view, irresistible.

38

In those circumstances, notwithstanding the small number of proceedings in question, I am satisfied that there has been sufficient persistence in the bringing of the claims to warrant the conclusion that Ms Kwon has instituted or conducted vexatious proceedings against Mr and Mrs Luke "frequently" within the meaning of the Vexatious Proceedings Act .

Should the court exercise its discretion to grant the relief sought?

39

I am satisfied that it is appropriate to make an order prohibiting Ms Kwon from instituting proceedings in New South Wales against either Mr or Mrs Luke. As already noted, Ms Kwon did not display any appreciation of the vice of persisting in filing pleadings in substantially the same form as those that had been struck out as an abuse of process. She does not see the need to obtain legal assistance in the preparation of her claims, apparently even after being offered the assistance of a duty barrister at the Local Court. Indeed, Ms Kwon stated in argument to me:

"Well, as far as I know, well, commonsense tells me that I can lodge, I can write t letter to the Court if I have something that is, that is not just. 17 years ago while I was in a class for migrants I was learning about the Australian system and laws and I even passed the solicitor exam too, so I could apply to become a solicitor."

40

In the result, it is clear to me that, unless prohibited from doing so, Ms Kwon is likely to continue to file pleadings in the same form. In all the circumstances, I am satisfied that it is appropriate to make order 1 sought in the summons. For the same reasons, I am satisfied that it is appropriate to make an order staying the proceedings commenced by Ms Kwon in this Court after the present application was brought.

41	I make the following orders:

1. that proceedings no. 417800 of 2010 in this Court between the defendant as plaintiff and the plaintiffs as defendants be stayed.

2. that, subject to section 14 of the Vexatious Proceedings Act , the defendant be prohibited from commencing any proceedings in the State of New South Wales against either of the plaintiffs.

3. that the defendant pay the plaintiffs' costs of the proceedings.

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