Hordern v State of New South Wales

[2015] NSWSC 959

Supreme Court

New South Wales

Medium Neutral Citation:	Hordern v State of New South Wales [2015] NSWSC 959
Hearing dates:	16 July 2015
Date of orders:	16 July 2015
Decision date:	16 July 2015
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Plaintiff’s Notice of Motion dated 10 July 2015 dismissed. 2. Pursuant to Rule 7.36 UCPR, the Defendant is referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for advice and assistance including appearing for the Plaintiff on an interlocutory and final basis.
Catchwords:	PROCEDURE – stay of proceedings – proceedings claiming damages for negligence by prisoner assaulted whilst in custody – plaintiff under Extended Supervision Order – plaintiff seeks stay until determination of appeal against ESO – no appeal yet lodged – ESO made in 2009 – stay refused LEGAL AID – pro bono assistance – plaintiff impecunious and under psychological disability
Legislation Cited:	High Risk Offenders Act 2006 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Timothy Eli Hordern (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: In person (Plaintiff) J Henderson (Defendant)   Solicitors: Unrepresented (Plaintiff) Crown Solicitors Office (Defendant)
File Number(s):	2013/227373

Judgment

1. The Plaintiff has commenced proceedings against the State of New South Wales alleging negligence as a result of an assault that he sustained while he was incarcerated and for other matters concerning his care whilst in custody. The proceedings were commenced on 26 July 2013. A Defence was filed by the State on 15 November 2013. The proceedings do not appear to have advanced in any meaningful way since the filing of the defence, despite a number of directions hearings before various Registrars of the Court throughout 2014 and 2015.

2. One reason for the lack of progress in the proceedings appears to have been that the Plaintiff is having extreme difficulty in conducting proceedings as they ought to be conducted. He says that that comes from two matters. One is his own mental and psychological condition. He says that he suffers from Asperger's Syndrome. The second is that he has been the subject of an Extended Supervision Order as a high risk offender since 2009. The conditions attached to that ESO are such, he says, that his ability to prepare the matter as it ought to be prepared is either impaired or stultified.

3. On 8 October 2014 pursuant to an application made by the Plaintiff Hidden J referred him to the Common Law Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance pursuant to r 7.36 Uniform Civil Procedure Rules 2005 (NSW). Hidden J noted that the referral at that stage was for advice in relation to the proceedings which he has undertaken. The Plaintiff says that he saw a barrister who provided him with some advice about the proceedings.

4. The Plaintiff now moves by Motion filed 10 July 2015 seeking an order that the proceedings be stayed until the Plaintiff has completed an appeal against his Extended Supervision Order. The affidavit in support of the Motion says that the Extended Supervision Order was made by R A Hulme J on 17 September 2009 for a period of five years. It would ordinarily have come to an end by now except for the fact that the Plaintiff has been incarcerated from time to time because allegations were made that he had breached various conditions of the Extended Supervision Order. Under the act and the order time does not run for the purpose of the Extended Supervision Order whilst a person subject to it is incarcerated. The Plaintiff says that his periods of incarceration have effectively extended his supervision order until November 2017.

5. The Plaintiff informed me that he has not yet lodged an appeal against the Extended Supervision Order. At the present time he is almost six years out of time for doing so.

6. The chances of his being given leave given that delay are remote in the extreme. It is apparent also from what the Plaintiff has told me that what he really seeks to challenge is the way some of the conditions of the ESO have been implemented resulting in his being subject to considerable restrictions, he says, on his ability to continue to prepare this case.

7. It is doubtful whether the Plaintiff has any right to appeal against the way the conditions have been implemented. At best the Plaintiff has a right under the High Risk Offenders Act 2006 (NSW) to apply to the court to have some or all of the conditions modified or extinguished.

8. Nevertheless the very basis for the order sought in the Plaintiff's Notice of Motion is not established, that is, so far from not having completed an appeal against his Extended Supervision Order he has never instituted such appeal. It is not appropriate, therefore, and also for the reason that his proceedings have been on foot for two years to stay those proceedings.

9. However, it is apparent to me that the Plaintiff needs further legal assistance if the proceedings are to be pursued.

10. I have been able to examine an application that the Plaintiff made to postpone or waive court fees that was on the court file. The document concerned gives me quite sufficient information about the Plaintiff's financial position. In short it demonstrates that he is in receipt of Centrelink benefits, that he has a number of debts which he is paying off and that his regular fortnightly expenses together with those payments use up all of his income.

11. I am satisfied from Hidden J's referral to the Common Law Registrar under r7.36 that other matters have been satisfied. It is, in any event, apparent to me that the Plaintiff appears to lack the capacity to conduct these proceedings without some legal assistance given the nature and complexity of what he seeks to prove.

12. Rule 7.36(2A) provides that the court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of three years unless the court is satisfied that there is special reasons that justified a further referral.

13. There seem to me to be such special reasons. In the first place Hidden J's referral for legal assistance was limited to advice only in relation to the proceedings that he has undertaken. In that sense he has not been provided with a referral for full legal assistance. Secondly, by reason of the Plaintiff's unusual position of being subject to an ESO with various restrictions on his movements and ability to access computers, the internet and other matters he is disadvantaged in his ability to pursue these proceedings. In my opinion that amounts to special reasons to justify the further referral that I intend to make.

14. The Plaintiff's Notice of Motion filed 10 July 2015 is dismissed. I make a further referral to the Common Law Registrar in respect of the Plaintiff for referral to a barrister or solicitor on the pro bono panel for legal assistance. That legal assistance is both for advice and assistance in the conduct of the proceedings including, if the legal practitioner is so minded, to appear for the Plaintiff in the proceedings both on an interlocutory and final bases. The referral should not however be seen as limited to a practitioner who is prepared to undertake to do that but if that practitioner is so prepared the pro bono referral is extended that far.

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Decision last updated: 17 July 2015