Soo v Victoria Legal Aid
[2023] VSCA 330
•20 December 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0066 |
| LIN SENG SOO | Applicant |
| v | |
| VICTORIAN LEGAL AID (ABN 42 335 622 126) | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 20 December 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 330 |
| JUDGMENT APPEALED FROM: | [2023] VSC 289 (Gorton J) |
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ABUSE OF PROCESS – Appeal – Applicant convicted of sexual offending – Applicant claiming damages from Legal Aid alleging negligence in failing to provide adequate funding for criminal trial – Impermissible collateral attack on criminal conviction – Applicant’s proceeding constituting abuse of process – Applicant’s proceeding summarily dismissed as having no reasonable prospects of success – Applicant’s proceeding foredoomed to fail – Applicant’s proceeding correctly dismissed by associate judge – Appeal correctly dismissed by Trial Division judge – Application for leave to appeal totally without merit – Application for leave to appeal refused.
Supreme Court Act 1986, ss 14C and 14D.
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| Counsel | |||
| Applicant: | Unrepresented | ||
| Respondent: | Mr L Brown with Ms M Jackson | ||
Solicitors | |||
| Applicant: | |||
| Respondent: | Victorian Government Solicitor | ||
BEACH JA:
On 30 October 2013, following an eight day trial in the County Court, the applicant was convicted by a jury on a series of related sexual offences against a six year old girl.[1] At trial, the applicant was represented by counsel briefed by the respondent, Victoria Legal Aid (‘VLA’). VLA also provided funding for an instructing solicitor, but only for two half days of the trial. On 21 February 2014, the applicant was sentenced to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years.[2]
[1]Two charges of performing an indecent act with a child under 16, two charges of producing child pornography and one charge of common assault.
[2]DPP v SLS [2014] VCC 203.
On 25 November 2014, this Court dismissed the applicant’s appeal against sentence.[3] On 11 December 2014, some 265 days out of time, the applicant filed an application for an extension of time to appeal against conviction, relying upon 40 proposed grounds of appeal. On 1 May 2015, this Court refused that application, concluding that the applicant’s proposed grounds of appeal had no reasonable prospect of success.[4] On 12 February 2020, the High Court refused the applicant special leave to appeal, concluding that the proposed appeal from this Court had no prospect of success and that it would thus be futile to grant the applicant the extension of time he needed to make his special leave application.[5]
[3]Soo v The Queen [2014] VSCA 304 (Weinberg, Whelan and Santamaria JJA).
[4]Soo v The Queen [2015] VSCA 84 (Osborn and Kaye JJA).
[5]Soo v The Queen [2020] HCASL 22 (Bell and Gageler JJ).
On 30 October 2019, the applicant commenced a proceeding in the Trial Division against VLA, claiming compensatory, aggravated and exemplary damages, alleging that VLA was negligent in its provision of legal representation at the trial in the County Court. Amongst the allegations he made, the applicant claimed that:
•the failure of VLA to provide him with a full-time solicitor for the trial meant that he did not receive a fair trial;
•VLA owed him a duty of care, and was negligent in not providing adequate legal representation for the trial; and
•as a consequence of VLA’s failure to provide adequate legal representation, he suffered loss of liberty, assaults while in prison, psychiatric harm, loss of income, a marriage breakdown and strained family relationships.
On 8 December 2020, VLA applied for an order that the proceeding be dismissed, and that summary judgment be entered against the applicant. The application was made under ss 62 and 63 of the Civil Procedure Act 2010, and O 22 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), on the basis that the proceeding had no real prospects of success. VLA contended that the proceeding had no real prospect of success for the following reasons:
(1)The applicant’s claim for damages was premised on the proposition that, but for VLA’s negligence, he would not have been convicted (or he would have been successful with his appeal against conviction). That case, so it was submitted, involved an impermissible collateral attack on the applicant’s conviction in the County Court, and the decision of the Court of Appeal to refuse his application for an extension of time to file an appeal against that conviction.
(2)Alternatively, but for similar reasons, the applicant’s claim necessarily involved impugning the conduct of his barrister and/or his solicitor at his criminal trial, in not seeking or obtaining a stay of that proceeding. Such a case must necessarily fail as being ‘contrary to the principle of advocates immunity’.
(3)Alternatively, the applicant was estopped from bringing the proceeding in accordance with the principles discussed in Port of Melbourne Authority v Anshun Pty Ltd.[6] Specifically, the applicant was estopped from making the argument he sought to make against VLA (namely, that VLA’s funding decision had resulted in an unfair criminal trial) because it was unreasonable for him not to have raised that argument as a ground of appeal in his application to the Court of Appeal for an extension of time to appeal against his conviction.
(4)Alternatively, the duty of care alleged by the applicant, being a duty owed by VLA to persons who apply to it for funding for legal representation, is not one which is recognised by the law, and there was no real prospect that the applicant would establish that duty in this case.
[6](1981) 147 CLR 589.
On 16 September 2022, VLA’s application for summary judgment came on for hearing before Daly AsJ. The applicant was represented by pro bono counsel. On 29 September 2022, her Honour granted summary judgment against the applicant, and dismissed the proceeding.[7] After referring to a number of decisions, including the High Court’s decisions in Giannarelli v Wraith,[8] Rogers v The Queen[9] and D’Orta-Ekenaike v Victoria Legal Aid,[10] and the decision of the House of Lords in Arthur JS Hall v Simons,[11] the associate judge concluded that the applicant’s claims amounted to ‘an impermissible collateral attack upon the outcome of the trial, and the appeals from the verdict at trial’, and that his claims were thus ‘untenable, and [had] no real prospects of success’.[12] Her Honour did not find it necessary to consider the three other arguments advanced by VLA for summarily dismissing the proceeding, saying that, while these arguments had merit, she would ‘not have found [the] proceeding to be an abuse of process on those grounds alone, or any of them’.[13]
[7]Soo v Victoria Legal Aid [2022] VSC 577 (‘Reasons of Daly AsJ’).
[8](1988) 165 CLR 543 (‘Giannarelli’).
[9](1994) 181 CLR 251 (‘Rogers’).
[10](2005) 223 CLR 1 (‘D’Orta-Ekenaike’).
[11][2002] 1 AC 615 (‘Arthur JS Hall’).
[12]Reasons of Daly AsJ, [47].
[13]Ibid [29].
On 14 October 2022, the applicant filed a notice of appeal from the order of Daly AsJ dismissing his proceeding. That appeal was heard by Gorton J on 29 May 2023. Again, the applicant was represented by pro bono counsel.
On 1 June 2023, Gorton J dismissed the appeal from Daly AsJ,[14] saying:[15]
I agree with Daly AsJ that Mr Soo’s proceeding is an abuse of process and should not be permitted to proceed. His claim for damages in this proceeding necessarily depends on him establishing that his trial, as it took place, was unfair because he had inadequate legal representation and that this unfairness resulted in an unsafe conviction. The administration of justice would be brought into disrepute[16] if a jury or trial judge in a civil action were to be asked to conclude that an undisturbed criminal conviction was unsafe because the accused had had an unfair trial and to award damages for a consequential and ‘wrongful’ imprisonment. Such a civil action would amount, in effect, to a collateral attack on the validity of the criminal conviction. If the validity of the criminal conviction is to be challenged, it must be challenged in the Court of Appeal following the ordinary appellate processes; whether Mr Soo’s trial was unfair due to inadequate legal representation is a matter for that court to determine. If the Court of Appeal were to conclude that the trial was unfair and to set aside Mr Soo’s conviction, then Mr Soo may be able to commence a proceeding against VLA for damages on the basis that its conduct was a cause of his wrongful conviction.[17] But that is not this case. In fact, the Court of Appeal has dismissed an application for leave to appeal against his conviction, albeit that the adequacy of his legal representation was not argued by him on that occasion. The observations of Lord Steyn in Arthur J S Hall & Co v Simons,[18] although made in the context of considering proceedings against counsel, are, in my view applicable also in circumstances such as those under consideration here:
Unless debarred from doing so, defendants convicted after a full and fair trial who failed to appeal successfully will from time to time attempt to challenge their convictions by suing advocates who appeared for them. This is the paradigm of an abusive challenge. ... Public policy requires a defendant who seeks to challenge his conviction to do so directly by seeking to appeal his conviction. ... It is, however, prima facie an abuse to initiate a collateral civil challenge to a criminal conviction. Ordinarily therefore a collateral civil challenge to a criminal conviction will be struck out as an abuse of process. On the other hand, if the convicted person has succeeded in having his conviction set aside on any ground, an action against a barrister in negligence will no longer be barred by the particular public policy identified in the Hunter case.[19]
I note, too, that Gleeson CJ, Gummow, Hayne and Heydon JJ accepted that a conviction could not be challenged in a subsequent proceeding in D’Orta-Ekenaike v Victoria Legal Aid[20] where they said:
As Deane and Gaudron JJ pointed out in Rogers, principles of finality find reflection not only in doctrines of preclusion intended to protect the position of an individual (the doctrines of res judicata, issue estoppel, and so-called ‘Anshun estoppel’) but also in the public need ‘for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct’. It is this public need which must underpin the proposition that a conviction cannot be challenged in subsequent proceedings. But if that is right (and it is) neither should an acquittal be open to challenge.[21]
[14]Soo v Victoria Legal Aid [2023] VSC 289 (‘Reasons of Gorton J’).
[15]Reasons of Gorton J, [18]–[19] (footnotes in original).
[16]It is clear that a proceeding that has this effect is an abuse of process – see, eg, Rogers v The Queen (1994) 181 CLR 251, 256 (Mason CJ), 286 (McHugh J). It has been accepted, in cases involving the immunity of counsel, that a collateral attack, or attempt to impugn, a prior undisturbed legal proceeding can be contrary to good policy because it undermines the system of justice and raises great practical difficulties, as to which see, eg: Rondel v Worsley [1969] 1 AC 191, 249-251 (Lord Morris of Borth-Y-Gest); D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, 29 [77] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
[17]The question of whether VLA owed him a duty of care would arise. It is not necessary to determine that issue here.
[18][2002] 1 AC 615.
[19]Ibid 679. The gendered language is noted, but retained.
[20](2005) 223 CLR 1.
[21]Ibid 29 [77], footnotes omitted.
On 29 June 2023, the applicant filed an application for leave to appeal from Gorton J’s order to this Court, together with a written case and a list of authorities. The application for leave to appeal identifies two proposed grounds of appeal. As typed in the application, they are:
Grounds of appeal relating to Question of law 1 (findings not open)
Ground 1. Gorton J erred to dismiss proceeding as an abuse of process as it amounts to Mr Soo challenging his undisturbed conviction, when his 30/10/19 claims is about suing VLA management for breach of duty of care and deficient trial funding causing an unfair trial while maintaining he was not trying to overturn his conviction in the proceeding. Mr Soo has an alternate plan to overturn his conviction through a Petition for Mercy through the Attorney General for a section 327(1)(a) referral to COA to be heard as an appeal.
Grounds of appeal relating to Question of law 2 (deny of procedure fairness) Ground 2. Gorton J denied procedural fairness to the plaintiff by assuming that defendant had given sufficient notice of its defence submissions to plaintiff counsel for her to prepare for and argue her case in court against points of defence put forward by defendant.
Pursuant to r 64.15(1) of the Rules, the Registrar of the Court of Appeal has referred the application for leave to appeal to a single Judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar’s referral, I considered that it was neither necessary nor desirable to have an oral hearing of the application.[22]
[22]See rr 64.15(2) and (5) of the Rules, and s 14D(1) of the Supreme Court Act 1986.
Consideration
Daly AsJ correctly identified the applicant’s proceeding as an abuse of process, involving as it did an impermissible collateral attack upon the outcome of the applicant’s criminal trial. Having correctly so concluded, her Honour was effectively bound to summarily put a halt the applicant’s proceeding — there being no discretion to permit the continuation of a proceeding that is an abuse of process.[23] Gorton J was thus correct when he dismissed the appeal from Daly AsJ’s order dismissing the proceeding.
[23]R v Carroll (2002) 213 CLR 635, 657 [73]; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, 264 [7]; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, [26].
The applicant’s proposed ground 1 is entirely without merit. The applicant maintains that his proceeding against VLA ‘is about suing VLA management for breach of duty of care and deficient trial funding causing an unfair trial’ and not a proceeding ‘trying to overturn his conviction’. The applicant maintains that he has ‘an alternate plan to overturn his conviction through a Petition of Mercy’. The fact that the applicant is not trying in terms to overturn his conviction in his proceeding against VLA, or that he has ‘an alternate plan’ to do so, is not to the point. For the reasons given by both Daly AsJ and Gorton J, the proceeding is nevertheless an impermissible collateral attack on that conviction because it presupposes, and is premised on the proposition, that the applicant was wrongly convicted.
The applicant’s proposed ground 2 is also entirely without merit. It continues the theme of the applicant’s attack before Daly AsJ that there was a denial of procedural fairness by the late provision of documents by VLA. There is no substance in this attack. At no stage in either the hearing before Daly AsJ, or the hearing before Gorton J, did the applicant’s pro bono counsel make any complaint about a denial of procedural fairness or any inability to respond to VLA’s arguments due to the late provision of material. Moreover, neither member of counsel sought to have the matter adjourned — each appearing for the applicant and ably representing him on each occasion when the matter came on for hearing.
Finally, as Gorton J observed, it may have been neater if the proceeding had been dismissed under r 23.01(1)(b) of the Rules, or in the exercise of the Court’s inherent jurisdiction, on the basis that the proceeding was an abuse of process.[24] Nothing, however, turns on this in the present case. First, no point was taken in either of the courts below about the ability of the court to summarily dismiss the proceeding as an abuse of process. Secondly, as Gorton J observed, the liability of (if not the necessity for) the proceeding to be dismissed as an abuse of process also meant that the proceeding had no real prospects of success, and was thus liable to being dismissed (if not required to be dismissed) for that reason as well.[25]
[24]Reasons of Gorton J, [20(b)].
[25]Ibid.
The applicant’s proposed appeal from the order of Gorton J has no prospects of success. It having no prospects of success, leave to appeal must be refused.[26] Additionally, the application for leave to appeal is ‘totally without merit’ within the meaning of s 14D(3) of the Supreme Court Act 1986.[27]
[26]See s 14C of the Supreme Court Act 1986.
[27]By reason of s 14D(3) of the Supreme Court Act 1986, the determination of the application for leave to appeal is totally without merit and precludes the applicant from any right to apply to have the dismissal of his application for leave to appeal set aside or varied.
Conclusion
For the reasons given above, the application for leave to appeal will be refused.
In its written case, the respondent submitted that the application for leave to appeal should be dismissed with costs. Ordinarily, costs would follow the event upon the refusal of an application for leave to appeal. That said, I will give the applicant the opportunity to make any submissions he wishes to make about costs, including why they should not follow the event in this case.
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