McKane v Commissioner of Corrective Services NSW

[2016] NSWSC 1655

Supreme Court

New South Wales

Medium Neutral Citation:	McKane v Commissioner of Corrective Services NSW [2016] NSWSC 1655
Hearing dates:	11 November 2016
Date of orders:	11 November 2016
Decision date:	11 November 2016
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Application for pro bono assistance refused
Catchwords:	PROCEDURE - application for pro bono assistance –applicant in custody – limited access to legal resources in prison – application refused
Category:	Procedural and other rulings
Parties:	Jeffrey McKane (Applicant) Commissioner of Corrective Services NSW (Respondent)
Representation:	Jeffrey McKane (Applicant in person) S. Lowes (Defendant)
File Number(s):	2016/277266

EX TEMPORE JUDGMENT - Revised

1. Mr McKane is in custody. He has commenced proceedings in this Court seeking judicial review of a decision of the Commissioner of Corrective Services refusing him permission to obtain and use a laptop for the purpose of preparing a proposed Special Leave application in the High Court of Australia. He wishes to seek special leave from two decisions of the Full Court of the Family Court given in about the middle of the year.

2. Justice Beech-Jones considered his application for pro bono assistance on 18 October 2016 but stood it over pending, first, a reply from the Commissioner to the plaintiff's written request and, secondly, enquiries to be made of the High Court registry about whether that Court would be prepared to accept handwritten documents.

3. I must say the documents filed in this Court by Mr McKane are handwritten and he has taken a great deal of care with them. They are well set out and exceedingly legible, if I can put it that way.

4. His enquiry of the High Court met with the response effectively "look at the rules" but at the request of Justice Beech-Jones, Ms Lowes, Solicitor who appears for the Commissioner, made some enquiries herself of the registry and was informed that leave to proceed on the basis of handwritten documents has been allowed once only in the last 14 years to the knowledge of the Registrar she spoke to. I infer from that that, as one would expect there is a power in the Rules to dispense with strict compliance but that in relation to handwritten documents that power is but rarely used.

5. Moreover, Mr McKane has now received a reply from the Commissioner refusing his request.

6. Justice Beech-Jones pointed out in his Judgment that the Court is reluctant to exercise its power to refer persons for pro bono assistance given the scarcity of those resources in the profession. Generally speaking, a point of obvious merit is required.

7. Mr McKane has now demonstrated here that his request has been refused and doubtless that decision may be amenable to judicial review, although the Court exercises great restraint in exercising its supervisory powers in relation to decisions of the Commissioner about the conditions in which offenders are kept in custody. Any such case is likely to be a difficult one.

8. Moreover, all prisoners, it must be said, are in the same boat as Mr McKane. All have extremely limited access to computers. There is no positive legal obligation, as it were, for the Commissioner to make any individual provision of computers to persons held in custody.

9. From these considerations, one can well appreciate that Mr McKane's case will not be, at best, an easy one.

10. I accept what Mr McKane says about the limited opportunity he has to properly prepare a case because of the limited resources available to prisoners, in particular the limited availability of time on the internet to undertake legal research.

11. Again, and it may be a matter of regret, all prisoners are in the same boat.

12. I accept that Mr McKane has a particular interest inasmuch as his circumstances may stultify what he asserts is a viable opportunity to seek special leave to appeal from decisions of the Full Family Court and that unless he gets some assistance, he will be denied the opportunity that all citizens share to take a legal grievance to the High Court for its consideration, at least at the special leave threshold.

13. However, I am not concerned with any proposed High Court litigation. I am only concerned with the litigation in this Court.

14. What is necessary in Mr McKane's case, evidently, is someone who is prepared to do more than just give advice or even appear on the hearing date. This application for pro bono assistance, given the difficulties he has outlined, really requires someone to be prepared to take on the whole carriage of his matter. That may be 'a big ask' in the context of scarcely available resources.

15. He has applied for Legal Aid and been refused. He says that from his discussions with the Justice Action Group that they have told him that their resources are stretched and they are not in a position to give him any assistance in relation to his pending Supreme Court litigation.

16. The Commissioner, appropriately, neither consents nor objects to the application.

17. Although the matter is not an easy one, I think at the end of the day there is nothing to stop Mr McKane pursuing his case in this Court as a self-represented person. As I have said, his documents are clear and well-presented and, as Justice Beech-Jones observed, and I agree, he is a man who has the intellectual resources to present a case.

18. I am not of the view that this is an appropriate matter for the referral of this case for pro bono assistance and I refuse the application.

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Decision last updated: 20 April 2018