Clark v State of New South Wales
[2018] NSWSC 450
•12 April 2018
Supreme Court
New South Wales
Medium Neutral Citation: Clark v State of New South Wales [2018] NSWSC 450 Hearing dates: 12 April 2018 Date of orders: 12 April 2018 Decision date: 12 April 2018 Jurisdiction: Common Law Before: Campbell J Decision: (1) The Notice of Motion propounded on 31 January 2018 is dismissed;
(2) The applicant is to file an amended Statement of Claim conforming to the orders made by Justice Schmidt on 20 June 2016 by 4 June 2018;
(3) The applicant is to pay the costs of each respondent of the motion including the costs referrable to its earlier iteration of the 29 November 2017.Catchwords: CIVIL PROCEDURE – Interlocutory applications - referral for pro bono representation - Bar Association and Law Society Referral Scheme - previous representation - amicus curiae - failure to conform with orders - Statement of Claim - dismissed - stay of proceedings - inherent power - prejudicial effect - dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 67;
Felons (Civil Proceedings) Act 1981 (NSW);
Limitation Act 1969 (NSW) ss 50F, 52;
Uniform Civil Procedure Rules (2005)Cases Cited: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27;
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25;
Clark v State of New South Wales [2006] NSWSC 673;
Clark v Robards (No 2) [2016] NSWCA 249;
Clark v State of New South Wales [2012] NSWCA 139;
Clark v State of New South Wales; Clark v Robards [2014] NSWSC 272;
Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57Texts Cited: Nil Category: Principal judgment Parties: Applicant (Self-represented)
State of New South Wales (First Respondent)
Commissioner for Corrective Services New South Wales (Second Respondent)
The GEO Group Australia Pty Ltd (Third Respondent)Representation: Counsel:
Solicitors:
A N Williams (First and Second Respondents)
J K Raftery (Third Respondent)
Crown Solicitor’s Office (First and Second Respondents)
The Geo Group Australia Pty Ltd (Third Respondent)
File Number(s): 2014/173356
Judgment
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On 20 June 2016, Schmidt J granted leave to Mr Clark under Felons (Civil Proceedings) Act 1981 (NSW) (“FCPA”) to bring proceedings against the defendants in respect of only some of the causes of actions sought to be pleaded by him in a document entitled, "Statement of Claim - Version 8 November 2015" identified by her Honour for the purpose of those proceedings as MFI 5. The relevant orders made by her Honour are in these terms:
“(1) ….
(2) Leave to bring the proceedings proposed in MFI 5 is granted, other than in relation to the alleged 2007 assault with a fire hose, malicious prosecution and abuse of process claims.
(3) Mr Clark has leave to file an amended statement of claim pleaded in accordance with the requirements of the Uniform Civil Procedure Rules in respect of the other claims sought to be advanced in MFI 5.”
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On 18 November 2016, on the application of Mr Clark, Adams J made an order in the following terms:
“The plaintiff is referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance in preparing amended pleadings in accordance with the leave granted by Schmidt J on 20 June 2016.”
This order was made under r 7.36 Uniform Civil Procedure Rules 2005 (“UCPR”).
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In accordance with the Court's usual practice, the Registrar referred Mr Clark to the NSW Bar Association's legal assistance scheme. Although the Registrar may maintain a list of practitioners who have agreed to participate in the Court's pro bono scheme, under r 7.35 UCPR, no such list is kept. Rather, the Court relies upon the organised profession through the Bar Association and the Law Society to each maintain a list of their practitioner members who are prepared to accept referrals. The Court greatly appreciates the co-operation and assistance of the organised profession in this regard.
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Given that Adams J's referral was for assistance settling pleadings, the Bar Association was the logical body for the Registrar to approach for assistance.
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The Bar Association determined that Mr Clark was not eligible for assistance under the guidelines of its legal assistance referral scheme as he had previously received assistance within the preceding 3 years, in 2015 Court of Appeal proceedings. On his referral to the scheme then by Beazley P and Basten JA, Mr Michael Heath of Counsel accepted a referral on the basis that he be permitted to appear amicus curiae in the appeal. Counsel was appointed to that office and advanced Mr Clark's case to Mr Clark's satisfaction, albeit unsuccessfully.
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Mr Clark was advised of the Bar Association's decision on 30 August 2017. After receipt of notice of it, Mr Clark propounded a document entitled Amended Statement of Claim - Version 29 November 2017. As was pointed out to him by letter of the Crown Solicitor's Office dated 24 January 2018, that document very obviously failed to conform to the orders made by Schmidt J. Mr Clark accepted this and withdrew reliance upon it when the matter was before Registrar Bradford on 9 February 2018.
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By letter dated 31 January 2018 Mr Clark, as well as acknowledging the correctness of the propositions put to him by the Crown Solicitor's Office, propounded a further Notice of Motion which is before me for Hearing today.
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Essentially, Mr Clark seeks one of two alternative orders. The first prayer for relief is in the following terms:
“The Registrar, himself or herself is directed to comply with the previous order of Adams J, namely; to refer the applicant directly to a solicitor and/or barrister on the pro bono list of solicitors [sic] and barristers available for pro bono assistance under Division 9, Section 4 UCPR.” (Original emphasis.)
In the alternative, Mr Clark seeks a stay of proceedings until his release from custody, or further order. Apparently the earliest date upon which he is eligible for release to parole is 6 June 2021.
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The respondents adopt a neutral stance to the application for, as I will put it, "re-referral". They oppose any stay.
Mr Clark's argument
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In argument both written and oral, Mr Clark points out that the rules do not render a previous referral a bar to further referral. Rather, r 7.36(2A) of the UCPR provides that the Court may not refer a litigant for assistance “...if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the Court is satisfied that there are special reasons that justify a further referral.”
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Mr Clark has helpfully set out the relevant history of assistance received by him in his affidavit and submissions of 31 January 2018. A referral had been made to Counsel to resist an application to dismiss proceedings commenced by him in 2002. Notwithstanding the assistance of counsel enjoyed by Mr Clark, Johnson J dismissed those proceedings on 30 June 2006 (Clark v State of New South Wales [2006] NSWSC 673). On an application for leave to appeal from that decision, McColl and Basten JJA referred Mr Clark again for assistance under r 7.36 UCPR. Mr J Sheller and Mr D Joyce, both of Counsel, accepted the referral and appeared amicus curiae. They were successful in persuading the Court of Appeal to reinstate two of the three causes of action dismissed by Johnson J (Clark v State of New South Wales [2012] NSWCA 139). After Hidden J, in 2014, dismissed proceedings commenced by Mr Clark in 2005 (Clark v State of New South Wales; Clark v Robards [2014] NSWSC 272), he again was referred for assistance under r 7.36 by Beazley P and Basten JA. Mr M Heath of Counsel accepted the referral and appeared amicus curiae unsuccessfully. The 2005 proceedings remain dismissed: Clark v Robards (No 2) [2016] NSWCA 249.
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Mr Clark's argument may be summarised as follows: In truth, he has had the benefit of pro bono assistance only once when Ms Louise McManus (as her Honour then was) appeared for him before Johnson J in 2006. He was then at liberty and able to confer and provide instructions to Counsel. Mr Clark drew a distinction between this experience and his experience with other counsel on subsequent referrals appearing amicus curiae. He said that he had no direct contact with those counsel or input into the arguments to be put. He argued that those appearing amicus curiae are not directly representing a party, but simply assisting the court to arrive at the correct decision.
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He also argued that even if his first contention was rejected and his referral to Mr Heath engaged r 7.39 UCPR, there was no bar to the referral made by Adams J. He argued that Adams J must have been satisfied that the requisite special reasons existed and, in any event, the referral was supported by learned counsel appearing for the State of New South Wales. It was not in these circumstances for the Bar Association to simply refuse his application for legal assistance given that it was made under the auspices of a referral from the Court.
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Finally, Mr Clark argued that merely passing on a referral for consideration by the Bar Association under its criteria for a grant of pro bono assistance is not what the Rules required. Mr Clark emphasised r 7.33(2) UCPR which states that the purpose of the Rules is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance. He also pointed out that under r 7.36(4) UCPR, if a Judge makes the order, “[t]he Registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the pro bono panel.”
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Mr Clark submitted that the effect of these rules is: “...that the Registrar is to directly contact a solicitor or barrister who is on the pro bono list. Not that the Registrar simply forwards the referral to the manager of the (Bar Association) Referral Scheme, where it can be summarily dismissed by that manager without the manager knowing why the Court had made the referral in the first place as has happened in this case.”
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As can be seen from the form of the relief sought and the arguments advanced by Mr Clark, the substance of his case is that the Registrar has not complied with the obligations imposed by the Rules. Essentially, he is seeking a direction that the Registrar comply with the order made by Adams J on 18 November 2016.
Decision
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While there is some force in some of the contentions advanced by Mr Clark, I am not satisfied that he has demonstrated an entitlement to the relief sought. There is superficial attraction only in the distinction between a lawyer acting for a litigant pro bono, on the one hand, and a lawyer accepting a referral as amicus curiae on the other. However, the simple fact is that counsel who acted amicus in the 2012 and 2016 appeals appeared in that capacity upon a referral, as Mr Clark acknowledges, under r 7.36 UCPR. Counsel appearing amicus may appear in a more limited capacity than counsel retained to appear on behalf of a litigant, but it does not follow from whatever differences there may be that the advocacy of the amicus is not pro bono assistance to the litigant. Counsel who appeared in the 2012 and 2016 appeals were appointed for the very purpose of putting what properly could be put on behalf of Mr Clark in contradiction of the arguments mounted by the State. Indeed, given that he was the appellant in each case, the role of counsel was to put all of the arguments that could properly be put in favour of the Court of Appeal allowing his appeal. It is not without relevance that in his submissions, Mr Clark acknowledges that counsel involved discharged their duty diligently and expertly.
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However that might be, Mr Clark is correct to argue that the question that r 7.36(2A) raises is one for the Court. Where it applies, once the Court decides to make a referral, it must be taken to have accepted that there are special reasons that justify the further referral. I am of the view that the rule was engaged by his circumstances. For the reasons I have given, that is, he had obtained assistance under a previous referral during the period of 3 years immediately preceding the order of Adams J; to Mr Heath of Counsel for the 2016 appeal. However, as Mr Clark submits and as I have found already, Adams J must have been satisfied of special reasons.
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But I reject the argument that the Registrar failed in the obligation under r 7.36(4) to attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the pro bono panel. Rule 7.36(4) UCPR in its terms imposes an obligation on the Registrar only to attempt to arrange for legal assistance. There is no obligation upon a barrister or solicitor to accept a referral. This is made clear by r 7.36 UCPR which is in the following terms:
“The Registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.” (Emphasis added.)
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This is re-enforced by the terms of r 7.38 UCPR, which is to the effect that a lawyer is only obliged to provide assistance if the lawyer agrees to accept the referral. From these rules, it is clear that the Court is not empowered to conscript barristers or solicitors into its service by accepting a referral.
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It is not mandatory that the Registrar maintain a list of persons who have agreed to participate in the scheme, referred to as the "pro bono panel". Rule 7.35 empowers, but does not oblige, the Registrar to establish such a panel. It is not the current practice of the Court to maintain such a list. There is nothing in the Rules which renders the reliance of the Court upon the schemes established by the Bar Association and the Law Society for pro bono assistance impermissible and there are obvious advantages in adopting this practice, including efficiency in the administration of the scheme. That the profession and the professional bodies may establish their own criteria for acceptance of a Court referral is not inimical to the operation of the Rules. As I have emphasised, the Court may refer a litigant for assistance, but neither individual lawyers, nor the profession as a whole, is obliged to accept the referral. Once the Registrar has made the referral in accordance with r 7.36(4), the Registrar's obligation has been discharged whether or not the referral successfully matches the litigant with a barrister or solicitor who is prepared to accept the referral for pro bono assistance. I repeat, there is no obligation on any lawyer to accept the referral.
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For these reasons, I am not satisfied that Mr Clark has made out a case for me to direct the Registrar to comply with the order made by Adams J on 18 November 2016. The Registrar has already complied with that order. That the referral was unsuccessful in matching Mr Clark with a barrister prepared to assist may be an unfortunate outcome, but it is an outcome which must be inevitable from time to time in a scheme which depends upon the voluntary participation of the profession. The capacity of individual barristers and solicitors and of the profession as a whole to absorb referrals and provide pro bono assistance is strictly limited. It is understandable then that limited capacity should be rationed according to objective eligibility criteria established by the profession itself. The Court depends upon the goodwill of the profession for the provision of pro bono assistance. The Court must accept, within reason, the terms upon which the profession is prepared to provide it.
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I should say, however, that I am not satisfied that the manager of the Bar Association Legal Assistance Scheme dismissed Mr Clark's referral "summarily", as he put it, or in any way out of hand. It seems to me that the official assessed the referral according to the objective criteria upon which the scheme, that is to say the Bar Association's scheme, is based and found that, according to those criteria, Mr Clark was not eligible at this time for further assistance under the scheme. That is very different from dismissing the referral out of hand and it was not necessary, in my view, for the reasons I have given, for the manager to canvass the referral amongst barristers on the Bar Association's pro bono list.
The application for a stay
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I turn now to Mr Clark's application for a stay of proceedings until either he obtains legal assistance or is released from custody. There is no gainsaying, as the respondents have argued, that this is a most unusual, indeed unorthodox application. I am not concerned with serious criminal proceedings where an accused person is unable to obtain counsel: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57. These are civil proceedings voluntarily brought by Mr Clark in pursuance of a private right to sue for damages. Any power to grant a stay needs to be exercised with that consideration firmly in mind. The special or exceptional circumstances pointed to by Mr Clark have to be balanced against the legitimate interest of the respondents and their witnesses in not being unduly vexed by protracted litigation. Moreover, not unlike the accused in a criminal trial, the defendants in civil proceedings have a right to a fair trial: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25; Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 (“Batistatos”). I interpolate that the latter authority indicates that that part of Mr Clark's argument based upon the suspension of time running against a plaintiff under a disability under ss 50F and 52 of the Limitation Act 1969 (NSW) is misconceived. Without deciding whether Mr Clark can bring himself within those provisions, Batistatos demonstrates that even in the case of proceedings brought by a person under a disability, a fair trial may not be possible due to a serious lapse of time. In Batistatos the proceedings were summarily dismissed on this basis, notwithstanding that he was clearly disabled and not subject to the constraints imposed by the normal limitation period.
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The matters Mr Clark was given leave to bring under FCPA commence as long ago as 6 December 2007 and cover many allegations extending over the many years that Mr Clark has been in custody. Putting off requiring Mr Clark to properly plead until at least June 2021 (if he is indeed then granted parole) it is entirely inimical to the interests of the administration of justice and the right of the respondents to a fair trial. It may also offend the overriding purpose of civil procedure in this State expressed in s 56 of the Civil Procedure Act 2005 (NSW) (“Civil Procedure Act”), which is to facilitate the just, quick and cheap resolution of the real issues in civil proceedings.
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I appreciate that s 67 of the Civil Procedure Act reposes a broad power in the Court to stay proceedings. I am prepared to accept that there may be cases where the power could be invoked by the party who has brought the proceedings. Appropriate cases, however, must be exceedingly rare and when one arises, it is unlikely that the discretion could properly be exercised other than for a short time. As Mr Williams of Counsel has argued, generally the legitimate purpose of such a stay would be well satisfied by the exercise of the more usual power to grant an adjournment for a limited period.
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Mr Clark has set out, in quite considerable detail, the circumstances of his incarceration, which he argues make his case exceptional. I will not set out what he has said, which is fully detailed in his affidavit and submissions. I accept, given the crimes for which he has been convicted, that his circumstances in custody are more onerous than those of others. Some at least of his burdens are imposed at his request and for his protection. I understand from what he has said, however, that he now at least has access to a laptop computer for his own use, which must make the preparation of legal documents easier. Notwithstanding the detail he has provided and what I have said about his circumstances, I am not satisfied that they bring this case into what I have described as the exceedingly rare category of case where granting a stay on the application of the person bringing the proceedings is properly engaged.
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Moreover, it must be said that Mr Clark is an intelligent man, as he acknowledges, who is a very experienced self-represented litigator. He displays great familiarity with the Court's practice and procedure. I am of the view that compliance with the orders of Schmidt J is not beyond him and although prisoners may have disadvantages which other self-represented litigants do not, given the time that has elapsed since the orders were made, Mr Clark ought to have been capable of complying with them without the assistance of counsel. This is especially so given the degree of latitude generally allowed self-represented litigants in this Court.
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I acknowledge the force of the arguments he has advanced about the unavailability of textbooks and pleading precedents. I have considered the samples he has provided in his submissions in response of what he can do when given appropriate materials to work with; that is to say, what he can produce when properly guided by useful precedents. However, acknowledging that, I am not satisfied that the absence of textbooks or pleading precedents makes this case one where it is proper to grant a stay on the motion of the applicant. It follows that I am not persuaded that Mr Clark has made out grounds for the relief sought in his motion of 31 January 2018 and I dismiss it.
(Following further discussion with the parties the orders below were made.)
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The Notice of Motion propounded on 31 January 2018 is dismissed;
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The applicant is to file an amended Statement of Claim conforming to the orders made by Justice Schmidt on 20 June 2016 by 4 June 2018
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The applicant is to pay the costs of each respondent of the motion including the costs referrable to its earlier iteration of the 29 November 2017.
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Decision last updated: 13 April 2018
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