McKane v Commissioner of Corrective Services New South Wales

[2016] NSWSC 1497

Supreme Court

New South Wales

Medium Neutral Citation:

McKane v Commissioner of Corrective Services New South Wales [2016] NSWSC 1497

Hearing dates:

18 October 2016

Date of orders:

18 October 2016

Decision date:

18 October 2016

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

1.The defendant to reply to the plaintiff’s letter dated 1 August 2016 by 1 November 2016 and, if the defendant refuses the request, the defendant should state the reasons why.

2.The Notice of Motion filed on 15 September 2016 be adjourned to Tuesday 8 November at 9am before the Registrar.

3.The costs of today’s proceedings be reserved.

Catchwords:

Referral to pro bono panel – no question of principle

Cases Cited:

McKane v Commissioner of Corrective Services of New South Wales [2015] NSWSC 737

Category:

Procedural and other rulings

Parties:

Jeffrey Alan McKane (Plaintiff)
Commissioner of Corrective Services NSW (Defendant)

Representation:

Counsel:
In person (Plaintiff)
S Lowes, solicitor (Defendant)

Solicitors:
Unrepresented (Plaintiff)
Crown Solicitor’s Office (Defendant)

File Number(s):

2016/277266

Judgment

1. HIS HONOUR: The plaintiff, Jeffrey Alan McKane, filed in this Court on 15 September 2016 a handwritten statement of claim seeking various forms of relief against the Commissioner of Corrective Services New South Wales (the “Commissioner”). The substantive relief involves the setting aside of a decision by the Commissioner to deny him access to the use in his cell of a laptop computer.

2. He also sought an order that the Commissioner not obstruct or hinder the plaintiff from receiving the course material from either the Justice Action Group or the University at which the plaintiff is enrolled.

3. By notice of motion filed on the same day, Mr McKane requested that the Court make an order that he be referred to a barrister or solicitor on the pro bono panel for legal assistance pursuant to Uniform Civil Procedure Rule 7.36.

4. Mr McKane states that he has been an inmate since May 2011. He stated from the bar table that he is serving a long period in custody. In the substantive proceedings the essence of his claim concerns a request he made of the Commissioner that he be granted access to a computer so that he can prepare an Application for Special Leave to Appeal from certain decisions of the Full Court of the Family Court which he has stated were published in the middle of 2016.

5. He has advised me from the bar table that those decisions have the effect of denying him email and telephone contact with his children. He has also stated that he has been told by another inmate that the High Court of Australia will not accept applications that have been handwritten.

6. The background to these proceedings is that in 2013 Button J dismissed a similar application by Mr McKane which sought judicial review of the denial to him of certain facilities by the Commissioner: McKane v Commissioner of Corrective Services of New South Wales [2015] NSWSC 737.

7. There are two matters that cause me considerable hesitation before I would make any order that would involve a referral of Mr McKane to pro bono assistance. The first is that I have significant doubts about both the utility and the strength of his proceedings against the Commissioner of Corrective Services in light of the fact that his previous case was dismissed and in view of what appears to be a doubtful assertion that he needs this material to pursue his Application for Special Leave to Appeal.

8. The second is that it is apparent both from Mr McKane’s written material and his interchanges with me that he is intelligent and is capable of putting forward a case with some degree of confidence.

9. Generally, the facility of the pro bono panel is not to be unduly tested by referrals of cases or cases which lack strength or utility particularly in circumstances where the litigant can probably do a serviceable job of putting forward their own case.

10. However, notwithstanding these doubts I will not make an order dismissing his motion at the moment because, in my view, there are some further simple steps that can be taken which can confirm or invalidate my scepticism about the utility and strength of the proceedings.

11. The first is that to date Mr McKane has not received a response to his request that he have access for use in his cell to a laptop computer for the purposes of preparing an Application for Special Leave to Appeal. To that end, on 11 October 2016 the Registrar ordered the Commissioner to respond to Mr McKane’s letter seeking that by 1 November 2016. I propose to supplement that order by requiring the Commissioner to provide reasons in that letter for that refusal.

12. The second is that I will adjourn the motion. This will allow the solicitors for the defendant to make what I expect will be a fairly simple enquiry to ascertain whether it truly is the case that the High Court will not accept handwritten documents from self-represented litigants who are incarcerated.

13. It seems to me that once the outcome of those two inquiries is known, then an assessment of whether Mr McKane’s case has any real strength and utility can be made. It can then be determined whether it is worthwhile to refer the matter to a pro bono panel.

14. Accordingly, I will order that order 1 made by Registrar Bradford on 11 October 2016 be varied as follows:

1.   The defendant to reply to the plaintiff’s letter dated 1 August 2016 by 1 November 2016 and, if the defendant refuses the request, the defendant should state the reasons why.

2.   The Notice of Motion filed on 15 September 2016 be adjourned to Tuesday 8 November at 9am before the Registrar.

3.   The costs of today’s proceedings be reserved.

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