Clarke v Commissioner of Corrective Services - [2021] NSWSC 1184

Supreme Court

New South Wales

Medium Neutral Citation: Clarke v Commissioner of Corrective Services [2021] NSWSC 1184
Hearing dates: 8 September 2021
Date of orders: 8 September 2021
Decision date: 08 September 2021
Jurisdiction: Common Law
Before: Lonergan J
Decision:
(1) The plaintiff’s Notice of Motion filed on 18 August 2021 is dismissed.
(2) The question of costs of the Notice of Motion is reserved.

Catchwords:
CIVIL PROCEDURE – wide request for referral to solicitor and barrister on the Pro Bono scheme panel – interests of administration of justice – Uniform Civil Procedure Rules 2005 (NSW) rr 7.36 and 7.37 – applicant is a qualified solicitor with over eight years experience – applicant has not exhausted avenues for legal assistance outside the scheme – request for referral refused

Legislation Cited:
Supreme Court Act 1970 (NSW), ss 69, 75
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 7.37

Cases Cited:
R v Brody Jack Clarke [2019] NSWDC 2

Category: Procedural rulings
Parties: Brody Clarke (Plaintiff)
Commissioner of Corrective Services (Defendant)
Representation:
Counsel:
Z Heger (Defendant)
B Clarke, Self-represented (Plaintiff)
Solicitors:
Crown Solicitor's Office (Defendant)

File Number(s): 2021/231767
Publication restriction: Nil

REVISED EX TEMPORE Judgment

Referred to me for determination today as Duty Judge is a Notice of Motion filed by the plaintiff on 18 August 2021 seeking referral to a barrister and/or solicitor under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW).
The form of order sought by the plaintiff seeks a referral to the Pro Bono Panel for legal assistance in relation to:

advice in relation to the subject proceedings;

drafting or settling of documents to be filed or used in the subject proceedings; and

representation generally in the conduct of the subject proceedings.

The proceedings were commenced by Summons on 13 August 2021. The plaintiff Mr Clarke, who appears representing himself today, informed me that he drafted that Summons and prior to doing so had had some assistance in the form of nine audio-visual link meetings with solicitor, Ross Hill, early in 2021.
The Notice of Motion drafted by Mr Clarke was a sophisticated, well-prepared document accompanied by a relevant, well-drafted affidavit in support affirmed 26 August 2021.
Mr Clarke seeks specific relief in the Summons in the nature of prerogative and declaratory relief pursuant to ss 69 and 75 of the Supreme Court Act 1970 (NSW) regarding certain specific decisions of the defendant named in the proceedings as the Commissioner of Corrective Services for and on behalf of the State of NSW. The relief sought is specific, succinct, well-drafted and in parts of it, relevantly referenced to the underlying legislative provisions.
Also before me on the application by way of background is a sentencing judgment: R v Brody Jack Clarke [2019] NSWDC 2, where in January 2019 Judge Williams SC sentenced the applicant for offending which it appears from the detailed sentencing remarks relates to a gambling addiction and associated fraud. That judgment is placed before me by the defendant as relevant background, not in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 1184
Decision Date: 08 September 2021

CaseChat Overview and Summary

Clarke v Commissioner of Corrective Services involved a dispute between the applicant, a qualified solicitor with over eight years of experience, and the Commissioner of Corrective Services, regarding a request for a referral to a barrister on the Pro Bono scheme panel. The applicant sought the referral to assist in a matter before the Federal Court, citing financial constraints and the complexity of the case as reasons for requiring pro bono assistance. The Commissioner opposed the application, arguing that the applicant had not exhausted all other avenues of legal assistance outside the scheme before seeking this referral.

The central legal issues before the court were whether the applicant's request complied with the requirements set out in the Uniform Civil Procedure Rules 2005 (NSW) rules 7.36 and 7.37, and whether the referral was necessary in the interests of the administration of justice. The court had to determine if the applicant had fulfilled the procedural prerequisites and if the referral was warranted under the circumstances.

The court found that the applicant had not satisfied the procedural requirements for a referral under the Uniform Civil Procedure Rules. Specifically, the applicant had not demonstrated that they had exhausted all other possible means of securing legal assistance before turning to the Pro Bono scheme. The court also noted that the applicant, being a qualified solicitor with significant experience, was not in the same category as unrepresented parties who might more reasonably require pro bono assistance. Consequently, the application was dismissed, and the referral request was refused. The court emphasised the importance of adhering to the established procedures and the need to demonstrate that all other avenues of legal assistance had been explored before a referral under the Pro Bono scheme could be granted.

Orders