Clark v State of New South Wales
[2018] NSWCA 13
•12 February 2018
Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Clark v State of New South Wales [2018] NSWCA 13 Hearing dates: 12 February 2018 Decision date: 12 February 2018 Before: Basten JA Decision: The application for referral to the registrar for the appointment of pro bono counsel is refused.
Catchwords: CIVIL PROCEDURE – application for leave to appeal – referral for pro bono assistance – prior pro bono referrals – where appeal from interlocutory orders – where application made in context of lengthy history of proceedings – whether in interests of justice to grant referral – Uniform Civil Procedure Rules 2005 (NSW), r 7.36 Legislation Cited: Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), Pt 7 r 7.36Cases Cited: Beckett v State of New South Wales (2013) 248 CLR 432; [2013] HCA 17 Category: Procedural and other rulings Parties: Peter Frederick Clark (Applicant)
State of New South Wales (Respondent)Representation: Counsel:
Solicitors:
Applicant in person via AVL
Mr A N Williams (Respondent)
Applicant self-represented
Crown Solicitor (Respondent)
File Number(s): 2017/343118 Decision under appeal
- Court or tribunal:
- Supreme Court
- Jurisdiction:
- Common Law Division
- Citation:
- [2017] NSWSC 1414
- Date of Decision:
- 10 October 2017
- Before:
- Beech-Jones J
- File Number(s):
- 2002/269279
Judgment
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BASTEN JA: On 18 August 2017 the applicant, Peter Frederick Clark, filed a notice of motion in the Common Law Division seeking, amongst other orders, leave to file a third amended statement of claim involving causes of action for false arrest, false imprisonment, malicious prosecution and abuse of process. Some of the claims were contained in an existing pleading, others were new. Mr Clark is presently serving a lengthy sentence for a number of offences; other charges laid against him were dismissed. The claims relate to charges which were dismissed. Broadly speaking, the attempt to expand the claims seeks to rely on charges which were initially laid and then withdrawn and replaced by other charges, and certain backup charges which were not pursued to a conviction.
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To commence proceedings in relation to the fresh causes of action the applicant requires leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW) (“the Felons Act”). Section 5 of the Felons Act provides that a court “shall not” grant leave unless satisfied that the proceedings “are not an abuse of process and that there is a prima facie ground for the proceeding.”
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On 10 October 2017 Beech-Jones J delivered judgment giving leave to file and serve a statement of claim restricted to the facts and matters and causes of action referred to in certain numbered paragraphs of the proposed third further amended statement of claim. He also gave directions for the defendant (the State of New South Wales) to provide information in relation to certain inquiries and to provide discovery limited to identified causes of action. The applicant sought leave to reopen that judgment, in support of which he filed four sets of submissions. On 9 February 2018 Beech-Jones J dismissed the reopening application.
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The orders made by Beech-Jones J were entered on 11 October 2017. On 7 February 2018 the applicant filed a summons seeking leave to appeal. The summons complained of the primary judge’s failure to order “full discovery” and his refusal to add “new claims” in the proposed third further amended statement of claim.
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The applicant may need leave to appeal pursuant to the Felons Act in order to institute proceedings in this Court; he certainly needs leave to appeal from the judgment below, being an interlocutory judgment, pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW). The application for leave to appeal under the Supreme Court Act will need to be heard by two judges of the Court. That application is not listed before me today. It should be assumed that any application for leave under the Felons Act will be dealt with contemporaneously.
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The only matter now before the Court, which Mr Clark seeks to have dealt with in advance of the leave application is an application for referral for pro bono assistance pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”), r 7.36. Such an application does not constitute the institution of civil proceedings and is therefore not subject to the requirement for leave in the Felons Act.
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Applications for pro bono assistance are not granted in all cases. The power of the Court to refer a litigant to the Registrar for referral to a barrister on the pro bono panel is dependent on the Court being satisfied that such a referral is “in the interests of the administration of justice”. [1] The court may not refer a litigant for assistance if assistance has been obtained under a previous referral during the preceding three years, absent special reasons for a further referral. [2]
1. UCPR, Pt 7, r 7.36(1).
2. UCPR, r 7.36(2A).
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As the applicant has noted, he has sought pro bono assistance on three occasions, when it has been granted. Most recently, in 2016 counsel was appointed, but appeared for him amicus curiae and not in a pro bono capacity. While it is true that the prohibition does not apply in its terms, it is troubling that on the previous two occasions when pro bono assistance was provided, he apparently either declined to accept it or was unable to obtain direct contact with appointed counsel; he was happy to have those counsel appear to assist the court. Yet the primary purpose of the referral is to allow an impecunious litigant to obtain representation.
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A further factor, which is determinative in the present case, is the nature and complexity of the proceedings. This is not the occasion to consider with particularity the merits of the application for leave to appeal. To take such a step would be to subvert the purpose of considering whether the applicant would benefit from pro bono assistance.
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However, it is necessary to identify the basis upon which the applicant was unsuccessful before the primary judge. He was unsuccessful in respect of the new claims because the primary judge was not satisfied that to bring further proceedings based on the new claims would not constitute an abuse of process. That assessment depended almost entirely upon a consideration of what he accurately described as the “long and tortured history of these proceedings” and whether there was an adequate explanation for the belated attempt to raise the new claims. The request for discovery was limited to the causes of action the subject of the amended proceedings.
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Although the applicant submitted that the primary judge had misconceived the effect of Beckett v State of New South Wales,[3] a case in which the High Court set out the essential elements of the tort of malicious prosecution, the primary judge disclaimed reliance on any argument relating to those principles. I am not satisfied that any issue of legal principle is raised by the present application for leave to appeal.
3. (2013) 248 CLR 432; [2013] HCA 17.
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Apart from an understanding of the detailed history of the proceedings and the relationship between the new claims and the existing causes of action, a determination as to whether their introduction would constitute an abuse of process is an essentially evaluative judgment. Furthermore, it arises in the context of an interlocutory application, with respect to which this Court would normally defer to the judgment of the primary judge unless satisfied that there was a clear error of fact or law which warranted intervention to prevent a miscarriage of justice.
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The applicant is himself an experienced litigant with an excellent understanding of the history of his proceedings. It is not clear that he would obtain any significant benefit from pro bono counsel. These are not circumstances which should engage the discretionary power to refer a litigant for pro bono assistance.
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Accordingly, the application for a referral to the registrar for the appointment of pro bono counsel is refused. The dual leave applications may be listed for hearing once the relevant materials have been prepared.
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Endnotes
Decision last updated: 12 February 2018
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