Soo v Victoria Legal Aid
[2023] VSC 289
•1 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST
S ECI 2019 05616
| LIN SENG SOO | Appellant |
| v | |
| VICTORIA LEGAL AID (ABN 42 335 622 126) | Respondent |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 May 2023 |
DATE OF JUDGMENT: | 1 June 2023 |
CASE MAY BE CITED AS: | Soo v Victoria Legal Aid |
MEDIUM NEUTRAL CITATION: | [2023] VSC 289 |
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APPEAL – Appeal from associate justice – Whether associate justice erred in summarily dismissing proceeding – R v Chaouk (2013) 40 VR 356 – s 17(3) Supreme Court Act 1986 (Vic).
ABUSE OF PROCESS – Collateral attack on prior court decision - Whether it is an abuse of process to sue for damages associated with conviction and imprisonment on the basis of an allegedly unfair trial where the conviction remains undisturbed - D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Dr C Holland (appearing pro bono) | N/A |
| For the Respondent | Mr L Brown (Crown Counsel for the State of Victoria) and Ms M Jackson | Victorian Government Solicitor |
HIS HONOUR:
Lin Seng Soo, the appellant, was charged with child sex offences. On 8 February 2013, Victoria Legal Aid (‘VLA’), the respondent, determined to fund Mr Soo’s legal representation at his trial in the County Court of Victoria. In accordance with the guidelines that then applied, the funding was for Mr Soo to be represented by counsel for each day of the trial and for an instructing solicitor for two half days. On 2 May 2013, the Court of Appeal decided and published reasons in R v Chaouk,[1] in which it affirmed a decision by a judge of the trial division to stay a murder trial unless or until funding were provided for a full-time instructing solicitor on the basis that such representation was necessary for a fair trial. On 7 May 2013, VLA announced an ‘interim eligibility guideline’ that allowed for the funding for a full-time instructing solicitor or junior counsel ‘as and when required’ while it further considered its funding capabilities and engaged in a consultative process.
[1](2013) 40 VR 356.
It seems that the provision of funding for Mr Soo’s trial was not reconsidered, and the trial proceeded in October 2013 with him receiving funding for an instructing solicitor only for two half days. The trial itself ran for approximately 8 days. On 30 October 2013, Mr Soo was found guilty by a jury and he was then sentenced to a period of imprisonment.
Mr Soo appealed against his sentence to the Court of Appeal but that appeal was dismissed.[2] He then applied for an extension of time in which to appeal against his conviction and, if that were granted, for leave to appeal against his conviction. The application for an extension of time was dismissed.[3] In determining to dismiss that application, the Court of Appeal considered Mr Soo’s proposed grounds of appeal. There was no ground of appeal contending that he was denied a fair trial because of the limited involvement of an instructing solicitor or inadequate legal representation. There was a ground of appeal that the jury were biased. The Court of Appeal concluded that none of the proposed grounds of appeal were arguable.
[2]Soo v The Queen [2014] VSCA 304.
[3]Soo v The Queen [2015] VSCA 84.
Mr Soo has also, as he expressed it, sought ‘to overturn his conviction’ through a petition for mercy, which, it seems, is still under consideration.
Six years after his conviction, on 30 October 2019, Mr Soo commenced this proceeding. He alleges that VLA breached a duty owed to him.[4] He seeks damages. On 29 September 2022, Daly AsJ entered summary judgment for VLA.[5] Her Honour concluded that the proceeding was an abuse of process because it was ‘an impermissible collateral attack upon the outcome of the trial’.[6] Mr Soo has appealed under s 17(3) of the Supreme Court Act 1986 against Daly AsJ’s summary dismissal of his claim.
[4]If he needs leave to commence his proceeding outside a three year limitations period he has not yet obtained that leave – see Limitation of Actions Act 1958 (Vic) ss 5(1AA) and 5(1A).
[5]Soo v Victoria Legal Aid [2022] VSC 577.
[6]Ibid [30], [47].
Mr Soo drew his statement of claim himself. He was assisted by a barrister acting pro bono before Daly AsJ. It seems that he drew the notice of appeal from her Honour’s decision and associated submissions himself, but he was assisted again by a barrister acting pro bono with the oral argument before me.
Mr Soo’s notice of appeal sets out a number of what he contends are specific errors on the part of Daly AsJ. The first is that her Honour erred by concluding that the failure by VLA to fund a full-time instructor was ‘simply an administrative oversight’. This ground involves a misreading of her Honour’s reasons. Her Honour stated:
28 Accordingly, I shall proceed on the basis of the facts most favourable to Mr Soo. However, it is unnecessary for present purposes to form any view as to whether VLA’s failure to fund a full-time instructing solicitor for the trial was a deliberate breach of the VLA guidelines, or was simply an administrative oversight. I suspect it is more likely to be the latter, but that has no bearing on the current application, given the approach I have adopted above.
As her Honour made clear, she did not make any final finding on whether the failure was deliberate or not. She did not consider it necessary to do so because, either way, in her view the proceeding was an impermissible collateral attack on the finding of the County Court. Accordingly, I reject this first ground of appeal.
Secondly, Mr Soo contended that her Honour erred by characterising his proceeding as a ‘back-door attempt to overturn his conviction’ and to challenge the immunity that an advocate enjoys.
Her Honour did not treat Mr Soo’s proceeding as amounting to an attempt to ‘overturn’ his conviction in a technical sense. Rather, she stated, correctly, that for Mr Soo’s proceeding to succeed Mr Soo had to establish the counterfactual that if VLA had acted as he contended it ought to have acted then he would not have been found guilty. Mr Soo seeks damages, including aggravated and exemplary damages, including for his loss of liberty and for assaults and for loss of income he suffered while in gaol. His particulars of loss, for example, are in the following form:
(i)For breaches of duty of care and negligence by VLA management (for out of court work) for not funding for a full time instructor ... causing an unfair trial ...
(ii)As a result, the Plaintiff had suffered 5 years loss of liberty, was assaulted 3 times in jail ..., suffer psychiatric harm, loss of income and breakdown of marriage and strained family relationships ...
I agree with her Honour that Mr Soo’s claim necessarily involves him establishing that if VLA had funded a full-time instructing solicitor for his trial then he would have avoided gaol and all that came with it. That is, it necessarily involves him establishing that the failure to fund a full-time instructing solicitor resulted in an unfair trial. I reject the submission that Daly AsJ erred by so concluding.
Further, although her Honour referred to the argument put by VLA that Mr Soo’s proceeding was an abuse of process because it necessarily involved him challenging the conduct of his counsel, her Honour, explicitly, did not decide the case on this basis. Her Honour stated:
42Accordingly, while the possibility that the litigation of Mr Soo’s claim in this proceeding may result in the conduct of Mr Soo’s counsel being called into question, in my view, the doctrine of advocates’ immunity does not, of itself, prevent Mr Soo’s claims going forward, at least at this stage of the proceeding.
Thirdly, Mr Soo contended that her Honour was wrong to consider that he was obliged in this proceeding to prove that ‘adequate funding by VLA will result in a different outcome in his criminal trial’. I accept that her Honour proceeded on this basis but do not accept that she was wrong to do so. As noted above, because Mr Soo seeks damages for his imprisonment, that was the counterfactual that he would be obliged to establish.
Fourthly, Mr Soo contended that he was denied procedural fairness. The unfairness arose, he contended, because VLA was permitted to argue its case when it was late with or had not filed a written submission in accordance with an order made by Daly AsJ on 5 August 2022.
The order that Mr Soo relied on ordered him to file and serve submissions in reply to VLA’s summons by 15 August 2022, and that VLA ‘file and serve its submissions in reply to the plaintiff’s submissions by 26 August 2022’. VLA did not file and serve submissions in reply. But VLA had already served detailed written submissions setting out its position.[7] These submissions gave Mr Soo adequate notice of the argument to be put. Further, VLA had provided a copy of its submissions to Mr Soo’s counsel. On the day of the hearing before Daly AsJ, Mr Soo’s counsel, unsurprisingly, indicated to her Honour that there was nothing that needed to be attended to prior to argument commencing. For these reasons, I reject any submission that Ms Soo was denied procedural fairness on the grounds that the failure to file and serve submissions in reply meant that he was not on proper notice of the arguments that were to be put, or that it was procedurally unfair for her Honour to have regard to VLA’s written submissions.
[7]The written submissions were circulated on or about 4 February 2021 and later formally filed on 5 August 2022.
Finally, Ms Soo contended that Daly AsJ erred by concluding that it was more probable than not that his counsel did not make an application for a stay of the trial. Mr Soo produced some pages of transcript in which his counsel referred to the fact that she was appearing without an instructing solicitor. The discussions were in the context of his counsel explaining to the trial judge that she (his counsel) did not have a note of a piece of evidence and of the trial judge expressing a concern about his counsel obtaining instructions from him ‘both in front of the witness and in front of the jury’. The transcript Mr Soo produced is consistent with the trial judge being prepared to accommodate Mr Soo’s counsel’s difficulties and does not suggest that his counsel sought a stay of the trial. I am prepared to assume that the extracts that Mr Soo relied on were the strongest for him. Accordingly, there is no reason to consider that Daly AsJ erred by making the observation that she did. But more fundamentally, and in any event, her Honour’s observation was of no consequence in her Honour’s disposition of the application.
Notwithstanding Mr Soo’s failure to establish any of these discrete alleged errors, this appeal is an appeal in the nature of a rehearing.[8] There was no oral evidence given before Daly AsJ and I am in as good a position as her Honour was to form a view on the merits of VLA’s application for an order that the proceeding be dismissed. Accordingly, I am prepared to accept, for the sake of this appeal, that this means I should form my own assessment as to whether this proceeding is an abuse of process, rather than defer to her Honour’s assessment.
[8]Cf, eg, Wilson v Building Commission of Victoria [2015] VSC 629, [8] (John Dixon J).
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[9] 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.[10] 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,[11] although made in the context of considering proceedings against counsel, are, in my view applicable also in circumstances such as those under consideration here:
[9]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).
[10]The question of whether VLA owed him a duty of care would arise. It is not necessary to determine that issue here.
[11][2002] 1 AC 615.
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.[12]
[12]Ibid 679. The gendered language is noted, but retained.
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[13] where they said:
[13](2005) 223 CLR 1.
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.[14]
[14]Ibid 29 [77], footnotes omitted.
Finally:
(a) On 15 November 2022, Mr Soo filed a submission in which he sought judgment in his favour on the grounds that VLA had not filed a defence. He did not file a summons. By this time, Daly AsJ had entered judgment for VLA. Accordingly, any application for judgment for Mr Soo in default of a defence was misconceived.
(b) I note that, probably, the neater analysis is that the proceeding should be dismissed under rule 23.01(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015[15] or in exercise of the Court’s inherent jurisdiction on the basis that it is an abuse of process,[16] rather than on the grounds that it has ‘no real prospect of success’.[17] I note that Daly AsJ expressly stated that ‘the proceeding should be dismissed as an abuse of process.’[18] But this is a distinction without a difference, as its liability to be dismissed as an abuse of process also means that it has no real prospects of success.
[15]This rule provides as follows:
23.01 Stay or judgment in proceeding
(1) Where a proceeding generally or any claim in a proceeding—
(a)...
(b)is an abuse of the process of the Court—
the Court may ... give judgment in the proceeding generally or in relation to any claim.
[16]See, eg, Tampion v Anderson [No 2] [1973] VR 321 affirmed on appeal at Tampion v Anderson (No 2) [1973] VR 715.
[17]Cf Civil Procedure Act 2010 s 62.
[18]Soo v Victoria Legal Aid [2022] VSC 577, [37].
For the above reasons, the appeal should be dismissed. I will hear the parties on the question of costs.
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