Soo v Victoria Legal Aid
[2022] VSC 577
•29 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST
S ECI 2019 05616
BETWEEN:
| LIN SENG SOO | Plaintiff |
| v | |
| VICTORIA LEGAL AID (ABN 42 335 622 126) | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 September 2022 |
DATE OF JUDGMENT: | 29 September 2022 |
CASE MAY BE CITED AS: | Soo v Victoria Legal Aid |
MEDIUM NEUTRAL CITATION: | [2022] VSC 577 (revised 23 November 2022) |
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PRACTICE AND PROCEDURE – Application for summary dismissal – Section 62 of the Civil Procedure Act2010 (Vic) – Whether proceeding has any real prospects of success.
ABUSE OF PROCESS – Claim against Victoria Legal Aid for alleged failure to provide adequate legal representation for a criminal trial is an impermissible collateral attack on the outcome of a criminal proceeding outside the appellate process – Claim could only be successful if plaintiff successfully argued that the outcome at trial would have been different – Summary judgment granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M M Orwin (appearing pro-bono) | Self-represented litigant |
| For the Defendant | Mr L Brown | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
These reasons concern an application by the defendant in this proceeding, Victoria Legal Aid (‘VLA’), that summary judgment be granted in its favour against the plaintiff, Mr Lin Seng Soo (‘Mr Soo’).
This proceeding was commenced by Mr Soo on 30 October 2019. Mr Soo claims that VLA was negligent in its provision of legal representation for a trial in the County Court concerning a number of criminal charges against him conducted between 21 October 2013 to 30 October 2013 (‘trial’). Mr Soo says that he was not afforded a fair trial, as the legal representation provided by VLA for the trial was inadequate, and did not meet the requirements as set out in the VLA criminal trial guidelines (‘VLA guidelines’) applicable at the time of the trial.
The VLA guidelines were put in place in April 2013 following some controversy about an earlier decision of VLA to reduce the level of funding provided for representation of legally aided clients facing criminal charges. In particular, in January 2013 VLA made a decision to scale back funding for instructing solicitors to only allow for instructing solicitors to attend court for two half-days during a trial. The practical consequence of this decision was that many of the tasks carried out by solicitors in criminal trials (managing witness attendances, finding documents, and taking instructions from clients, among other things) had to be done by the barrister conducting the trial. Understandably, this policy decision attracted criticism from the legal profession and the courts, and after some strongly worded rulings by judges of this Court,[1] VLA reinstated the practice of providing funding for an instructing solicitor to attend court for the entirety of a criminal trial. The VLA guidelines, which formalised this policy change, were published some months prior to the trial, but VLA only provided funding for an instructing solicitor for two half‑days for the trial, which was conducted over approximately eight sitting days.
[1]Including some decisions relied upon by Mr Soo in his submissions in the current application.
VLA contends that Mr Soo’s claims in this proceeding have no reasonable prospect of success, as the proceeding is an abuse of process, and as such, the Court should exercise its discretion to grant summary judgment and dismiss the proceeding.
Background and parties
Mr Soo was charged with serious child sex offences in or around January 2013. On 30 January 2013, VLA was ordered pursuant to s 197 of the Criminal Procedure Act2009 (Vic) to provide legal representation to Mr Soo for the trial.
On 30 October 2013, Mr Soo was convicted and sentenced to five years of imprisonment. His appeals against both conviction and sentence were dismissed by the Court of Appeal on 25 November 2014 and by the High Court on 1 May 2015. It seems that none of the grounds of appeal advanced by Mr Soo raised the issue of whether VLA’s failure to provide representation in accordance with the VLA guidelines precluded Mr Soo from having a fair trial.
The statement of claim
In his statement of claim filed on 30 October 2019 (‘statement of claim’) Mr Soo said that he discovered[2] that the legal representation funded by VLA for the trial was funded in accordance with the more restrictive funding policy in place for the period between 7 January 2013 and 7 April 2013 (that is, in the period in which VLA was ordered to provide legal representation for the trial), not the VLA guidelines.
[2]During the course of the hearing, Mr Soo’s counsel told the Court that Mr Soo did not discover the existence of the VLA guidelines until May 2016, following applications he had made under the Freedom of Information Act 1982 (Vic).
Mr Soo claims that:
(a) VLA deliberately refused to fund a full‑time instructing solicitor for the trial;
(b) the failure of VLA to provide Mr Soo with a full‑time solicitor for the trial meant that Mr Soo did not receive a fair trial;
(c) VLA owed Mr Soo a duty of care, and was negligent in not providing adequate legal representation for the trial;
(d) as a consequence of VLA’s failure to provide adequate legal representation, Mr Soo has suffered loss of liberty, assaults while imprisoned, psychiatric harm, loss of income, a marriage breakdown and strained family relationships; and
(e) Mr Soo seeks orders to extend the limitation period for bringing his claims in the proceeding, as his poor mental and physical health affected his ability to commence this proceeding in time.
Relevant legal principles
Section 62 of the Civil Procedure Act 2010 (Vic) provides that:
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff’s claim or part of that claim has no real prospect of success.
Sections 63 and 64 of the Civil Procedure Act 2010 (Vic) provide that:
Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
…
Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
The Court of Appeal has stated that the test for summary judgment:
[S]hould be construed as one of whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success; that the ‘real chance of success’ test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not ‘hopeless’ or ‘bound to fail’, it does not have a real prospect of succeeding.[3]
[3]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 [29].
In Wheelahan v City of Casey (No 3),[4] it was accepted that the test “may in some circumstances extend to cases not regarded as sufficiently hopeless to warrant striking out under the Rules”.[5]
[4][2011] VSC 15.
[5]Ibid [8].
VLA’s submissions
VLA submitted that Mr Soo’s claims to have no real prospect of success, because:
(a) his claims are a collateral attack on the outcome of the trial and the dismissal of Mr Soo’s applications for leave to appeal from the verdict at trial. VLA submitted that Mr Soo’s claim is an abuse of process, as his concerns about his legal representation should have been ventilated at trial or through the appeal process (‘collateral attack issue’);
(b) in order to succeed in his claims in this proceeding, Mr Soo must in effect impugn the conduct of his instructing solicitor and barrister at the trial in not seeking or obtaining a stay of the trial, and making such an allegation contravenes the doctrine of advocates’ immunity (‘advocates’ immunity issue’);
(c) Mr Soo is estopped from bringing this proceeding, as he should have raised any claim that he had not had a fair trial at the trial, or upon appeal, and it was unreasonable for Mr Soo not to do so (‘Anshun[6] estoppel issue’); and
(d) the relationship between Mr Soo and VLA is not a recognised category of relationship giving rise to a duty to take reasonable care, and there is no real prospect that a duty of care of the kind claimed by Mr Soo would be imposed upon VLA by the Court in this proceeding (‘duty of care issue’).
[6]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
VLA submitted that it is a “prima facie an abuse of process to initiate a civil proceeding that amounts to a collateral challenge to a criminal conviction, and therefore such proceedings will ordinarily be dismissed on a summary basis”. It is in the interests of justice for there to be finality in litigation, whether civil or criminal in nature.
VLA referred to the decisions of the High Court in of Giannarelli v Wraith[7] and the House of Lords in Arthur J S Hall v Simons (‘Arthur J S Hall’)[8] in support of its submission that allowing Mr Soo’s claim to proceed is not in the public interest and would be “destructive of public confidence in the administration of justice”.[9] VLA submitted that civil actions should not be converted into “a de facto avenue of appeal outside the carefully constructed statutory framework of criminal appeals”.[10] VLA identified the appeals process as being the proper means by which any decision should be corrected, if necessary.
[7](1988) 165 CLR 543 (‘Giannarelli’).
[8][2002] 1 AC 615 (‘Arthur J S Hall’) at 679–80.
[9]Giannarelli, 558.
[10]Ibid, 574.
VLA submitted that allowing Mr Soo’s claim to proceed would:
(a) require the Court to engage in counterfactual inquiries (that is, to evaluate whether the result of the trial would have been different if Mr Soo had been provided a full‑time solicitor);
(b) require this Court to determine whether the outcome of the trial and Mr Soo’s appeals were correct, submitting that it “is clearly inappropriate for this Court to answer in civil proceedings outside of the established framework for criminal appeals.”; and
(c) risk practical problems, in that the witnesses best placed to determine whether the failure of VLA to provide a full‑time instructing solicitor would have made any difference at the trial would be the judge presiding over the trial and the members of the jury who delivered the guilty verdict.[11]
[11]Section 129(4) of the Evidence Act 2008 (Vic) precludes the admission of evidence of the reasons or deliberations of jury members, save in exceptional circumstances which are not applicable here. Section 16(2) provides that a judge is not compellable to give evidence about a proceeding over which they presided without leave of the Court.
VLA also relied upon the doctrine of advocates’ immunity in support of its application for summary judgment. While Mr Soo does not, in this proceeding, seek to sue the lawyers acting for him at the trial, VLA submitted that the conduct of his lawyers, in particular, his barrister, in not seeking a stay of the trial on the grounds of inadequate legal representation, must necessarily be called into question in this proceeding.
VLA also relied on the decision in the High Court in Anshun[12] to support its submission that Mr Soo is estopped from bringing the claims in this proceeding, as the issue of the adequacy of Mr Soo’s legal representation should have been raised at the trial or in the course of the appeal process. VLA did concede that the test of whether it was unreasonable for Mr Soo not to raise the issue of the impact of the lack of legal representation upon the fairness of the trial might be applied less stringently where the parties to this proceeding are not the same parties who took part in the trial. However, the absence of a full‑time solicitor and the impact of that absence upon the running of the trial must have been known to Mr Soo and his barrister at the time of the trial.
[12](1981) 147 CLR 589.
Finally, VLA submitted that the duty of care underpinning Mr Soo’s claim that VLA was negligent in its application of the VLA guidelines is not a duty recognised by the law, and that it is unlikely that such a duty will be found to exist by the Court given that “it is typically difficult to establish that public authorities owe a duty of care in relation to decisions about the allocation of public funds.”
Mr Soo’s submissions
Mr Soo’s written submissions filed on 15 August 2022 (‘Mr Soo’s submissions’) focused upon a party’s right to a fair trial at common law.
Mr Soo relied upon the decision of Lasry J in R v Chaouk[13], where his Honour recognised that, in the circumstances of that case, the absence of an instructing solicitor:
substantially increase[d] the likelihood of errors being made or important matters being overlooked by counsel — a risk that will not confront the prosecution.[14]
[13](2013) 40 VR 356.
[14]Ibid, 356.
Further, Mr Soo observed that the sufficiency of legal representation within the meaning of s 197 of the Criminal Procedure Act 2009 (Vic) was discussed in MK v Victoria Legal Aid (‘MK’),[15] where T Forrest J stated:
[it] is not whether [MK] is represented, but whether he is sufficiently represented in all the circumstances. If I conclude that he is not and that insufficiency causes me to be satisfied that I cannot ensure that the applicant will receive a fair trial, then it is my duty to intervene.[16]
[15]MK v Victoria Legal Aid [2013] VSC 49 (‘MK’).
[16]Ibid [43].
Mr Soo also referred to MK[17] as supporting a conclusion that the appointment of a solicitor for only two half‑days at the trial amounted to an effective lack of legal representation. Mr Soo also referred to Attorney-General (NSW) v Milat,[18] which said that the provision of legal representation may be insufficient in certain circumstances:
There could, no doubt, be cases where the legal aid being offered was so inadequate, or subject to such restrictive terms and conditions, that it would be right to conclude that a person to whom legal aid was offered has been left relevantly unrepresented.[19]
[17]Ibid.
[18]Attorney-General (NSW) v Milat (1995) 37 NSWLR 370.
[19]Ibid [G].
Mr Soo further submitted that the trial was, as was the case in MK, “a genuinely complex trial.”[20] Accordingly, a full‑time instructing solicitor would be required in order to amount to ‘legal representation’ within the meaning under s 197 of the Criminal Procedure Act 2009 (Vic).
[20]MK [45].
Mr Soo did concede that it is arguable the trial judge considered that it was appropriate to proceed in the absence of an instructing solicitor for the bulk of the trial, otherwise he or she would have intervened.
Mr Soo’s submissions did not directly address the question of whether this proceeding was an abuse of process for the reasons advanced by VLA, but Mr Soo did submit that his lack of knowledge of the content of the VLA guidelines prior to 2016 was relevant to the Anshun estoppel issue.
Discussion
As indicated during the course of the hearing of the application, I will proceed to deal with the application on the basis of the following assumptions:
(a) that VLA contravened the VLA guidelines when it failed to provide funding for a full-time instructing solicitor for the trial;
(b) that the absence of a full-time instructing solicitor prevented Mr Soo from having a fair trial; and
(c) if VLA had provided a full-time instructing solicitor, the outcome of the trial would have been different: that is, Mr Soo would have been acquitted of the charges against him.
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.
In sum, I consider that the proceeding should be summarily dismissed on the basis of the collateral attack issue. It is, accordingly, not necessary for me to decide whether the proceeding ought to be summarily dismissed on the basis of the advocates’ immunity issue, the Anshun estoppel issue or the duty of care issue. While the VLA’s submissions in relation to these issues have merit, I would not have found this proceeding to be an abuse of process on those grounds alone, or any of them. My reasons follow.
I agree that this proceeding is an abuse of process, because Mr Soo can only succeed in obtaining relief by successfully mounting an impermissible collateral attack upon the outcome of the trial, outside the appellate pathway prescribed by the legislature.
I agree that the following statement in Rondel v Worsley,[21] a case concerning the doctrine of advocates’ immunity, is directly relevant to the current application:
It will be useful to consider some of the circumstances that would arise if such actions were permitted. If someone has been tried on a criminal charge and has been convicted it would not be of any purpose for him to assert that his counsel had been unskilful unless he could prove that he would have been acquitted had his counsel conducted the case with due care and skill. He would have to prove that on a balance of probability. He would, however, only have been convicted if the jury had been sure that his guilt had been established. If he asserts that, had his counsel asked some more questions than he did ask, the jury in the criminal case or the magistrates would have acquitted him, would he be entitled in his negligence action to call as witnesses the members of the jury or the members of the bench of magistrates who had convicted him? I have no doubt that it would be against public policy to permit any such course. If there were a conviction by a majority verdict of ten to two, could one of the ten be called to say that had there been further questions put to some witness he would have agreed with the two jurors? Again, that, in my view, would be procedure that ought not to be permitted. If there were a jury in the civil action for negligence they would have to decide whether, on the assumption that the additional questions had been put, there probably would have been an acquittal. Presumably they would have to review all the evidence that had been given in the criminal case. They would either need to have a transcript of it or they would have to hear the witnesses who had previously given evidence. After a period of time the witnesses might not be available. The transcript might not be obtainable. If obtainable it might relate to a trial that had taken not days but weeks to try. But assuming that all the necessary evidence was available and assuming that memories were not dimmed by the passing of time, the civil jury would in effect be required to be engaged in a re‑trial of the criminal case. That would be highly undesirable. And supposing that after a criminal trial a person was convicted and then appealed unsuccessfully against his conviction and later brought a civil action against his counsel alleging negligence: if he succeeded, would any procedure have to be devised to consider whether or not it would be desirable to set aside the conviction. The conviction (as in the present case) might have taken place years before. Any sentence of imprisonment imposed might have been served (as in the present case) long before. If in the civil action the suggestion was made that, had there been further evidence called or further questions put in the criminal case, there might have been a disagreement rather than a conviction, this only serves to demonstrate how difficult it would be for a court to decide on a balance of probabilities what the jury in the criminal case would have done had there been different material before them. A trial upon a trial would raise speculation upon speculation.[22]
[21][1969] 1 AC 191.
[22]Ibid, 665–86.
The doctrine of advocates’ immunity has now been abolished in England and Wales, following the decision of the House of Lords in Arthur J S Hall.[23] However, part of the reasoning of the majority in that case was that, in practice, the abolition of the doctrine would not undermine public confidence in the administration of justice, because later civil actions which sought to question the correctness of the outcome of a criminal proceeding would be held to be an abuse of process by reason of the application of the principles in Rondel v Worsley,[24] that is, on the basis of the collateral attack issue. In Australia, not only has the doctrine of advocates’ immunity not been abolished, but the High Court has on a number of occasions justified its survival (and has shaped its content and application) relying upon, among other things, the reasoning in Rondel v Worsley.[25] The principle of finality of litigation remains paramount in Australian law.
[23][2002] 1 AC 615.
[24][1969] 1 AC 191.
[25]Ibid.
The need for finality in litigation, and the undesirability of allowing litigants to bypass the usual appeal process by later civil actions, the success of which are dependent upon a successful attack on an earlier judicial determination, also underpins the doctrine of advocates’ immunity, and the doctrine of witness immunity. The policy underlying the principle of finality of litigation is succinctly summarised in the following statement of McHugh J in Rogers v The Queen, a decision concerning the principle of immunity of witnesses in court proceedings from later being sued in a civil proceeding:[26]
The policy of the law is to prevent ultimate issues of fact or law in dispute between parties from being adjudicated in judicial proceedings more than once. A final determination on an ultimate issue of fact or law, once given by a judicial tribunal acting within its jurisdiction, forever binds the parties and all those who claim through them. As a result of this policy, neither the parties nor those claiming through them can dispute the correctness of the determination in subsequent litigation. The remedy for the incorrect determination of an ultimate issue is to set it aside; it cannot be attacked collaterally in other judicial proceedings.[27]
[26](1994) 181 CLR 251.
[27]Ibid, 283.
The principle of finality in litigation has not only underpinned the development and application of the doctrines of witness immunity and advocates’ immunity, but has also formed the foundation of the reasoning of the High Court in a number of relatively recent decisions where the Court has been urged to follow the courts of England and Wales in abolishing the doctrine of advocates’ immunity. In D‘Orta-Ekenaike v Victoria Legal Aid (‘D’Orta’),[28] the High Court declined to do so, but confined the operation of the doctrine to work done which contributes to the judicial determination of litigation.[29]
[28](2005) 223 CLR 1.
[29]Ibid, see the discussion at [32]–[35], [45], [80] and [84].
Further attempts to persuade the High Court to abolish the doctrine of advocates’ immunity were rejected in Attwells v Jackson Lalic Lawyers Pty Ltd (‘Attwells’)[30] and Kendirjian v Lepore.[31] In Attwells,[32] the majority explained the rationale for the principle as follows:
To speak of the exercise of judicial power to quell controversies as an aspect of government is to make it clear that the immunity is not justified by a general concern that disputes should be brought to an end, but by the specific concern that once a controversy has been finally resolved by the exercise of the judicial power of the State, the controversy should not be reopened by a collateral attack which seeks to demonstrate that that judicial determination was wrong.[33]
[30]Ibid.
[31](2017) 259 CLR 275.
[32][2016] HCA 16.
[33]Ibid [34]. See also the discussion at [30], [33] and [66].
I agree that each of the rationales behind the principle of finality of litigation, especially criminal proceedings, are enlivened by Mr Soo’s claims in this proceeding, including:
(a) the destruction of public confidence in the administration of justice because of the potential for conflicting decisions;
(b) the undesirability of allowing civil actions to become, in effect, a de facto avenue of appeal; and
(c) the practical problems associated with relitigating a criminal proceeding, in this case many years after the trial and even longer after the events which were the subject of the charges heard and determined at the trial.
I agree that the only way in which Mr Soo can obtain relief in this proceeding would be if he could establish that, had adequate funding for legal representation been provided by VLA, the outcome of the criminal trial would probably been different. Further, it is noteworthy that in the current case, Mr Soo was unsuccessful in overturning his conviction in the Court of Appeal and in the High Court. Accordingly, if Mr Soo’s claims in the current proceeding were allowed to proceed to trial, this Court (exercising its civil jurisdiction) would be required to in effect second‑guess the decisions of the County Court, the Court of Appeal, and the High Court at least eight years after the last of these decisions was made. Accordingly, the proceeding should be dismissed as an abuse of process.
Advocate’s immunity
VLA contends that summary judgment should also be granted because the conduct of the trial in this proceeding will necessarily involve an evaluation of the conduct of Mr Soo’s counsel at the trial. The argument goes like this: in order to establish any entitlement to damages, Mr Soo would have to establish that, but for the denial of funding for a full-time instructing solicitor, he would have had a fair trial, and thus would not have been convicted, with all of its adverse consequences. However, it would be open to VLA to contend at trial that, if its denial of funding caused the trial to be unfair, then the cause of any losses suffered by Mr Soo as a consequence was the failure of Mr Soo’s counsel to make an application to stay the trial, consistent with what happened in a number of other criminal trials in this jurisdiction in early 2013. However, bringing into question the conduct of Mr Soo’s counsel in that regard would infringe the doctrine of advocates’ immunity, and accordingly this proceeding must be an abuse of process on that basis as well.
However, I would not grant summary judgment on this ground alone. First, the issue does not necessarily arise from the statement of claim in this proceeding: it is simply one plank of a possible defence that VLA may wish to pursue. That proposition seems to me to be a reasonably flimsy basis upon which to grant summary judgment, at least at this stage of the proceeding, given that no defence has been filed.
Further, one of the reasons why it is necessary to speculate upon what the issues associated with Mr Soo’s claims might be, including what the defences VLA might pursue, is that there is relatively limited factual material presently available to the Court as to what actually occurred at the trial. I can infer that it is more likely than not that Mr Soo’s counsel did not make an application for a stay of the trial, but I do not know. It may well be that accommodations were made at the trial for any shortfalls in representation, which might lessen the strength of Mr Soo’s argument that there was an unfair trial, such that counsel’s conduct may not be called into question, but again, I do not know.
Finally, there is no “advocates’ immunity” at large. The immunity conferred by the common law is immunity from suit: that is, a barrister (or solicitor) may not be sued in relation to allegedly negligent conduct of a case in court (or conduct intimately connected with the presentation and conduct of a case in court). In the current case, no-one is proposing to sue Mr Soo’s counsel, although as I suggested during the course of the hearing of the application, the doctrine of advocates’ immunity does raise some interesting questions about whether VLA would be entitled to take advantage of the proportionate liability regime in the Wrongs Act 1958 (Vic) if the other alleged wrongdoer is said to be Mr Soo’s barrister with the conduct of the trial. The answer to that question is probably not, but I do not need to resolve that question today, as again, the question arises out of what approach VLA might take to Mr Soo’s claim, and not Mr Soo’s claim itself.
Accordingly, 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.
Turning now to the Anshun estoppel issue, VLA submitted that the issues raised in this proceeding should have been raised at the trial, or during the appeal process.
The touchstone of whether an Anshun estoppel applies is whether it was unreasonable for Mr Soo not to raise the question of the unfairness of the trial (by reason of VLA’s denial of funding) at the trial itself, or during the course of the appeal process. Again, I am proceeding in somewhat of a factual vacuum in relation to that matter, which makes it difficult for me to conclusively find that it was unreasonable for Mr Soo not to raise the issue before now. That said, Mr Soo’s failure to raise this issue prior to the commencement of this proceeding is a matter which goes to the heart of the rationale behind the statements in the authorities to the effect that it is an abuse of process to relitigate issues in a criminal proceeding outside the prescribed appeal process, as discussed earlier in these reasons. Accordingly, that this proceeding may be also an abuse of process on the basis of the Anshun estoppel issue does not add much to the VLA’s contentions in that regard.
The final basis upon which VLA seeks summary judgment is based on the proposition that this Court would not find that VLA owed Mr Soo a duty of care when making funding decisions, and, in any event, the effect of the provisions in Part XII of the Wrongs Act 1958 (Vic) is to limit the liability of public authorities for actions in negligence connected with the exercise of public functions by public authorities.[34]
[34]By way of example, s 83 of the Wrongs Act 1958 (Vic) requires the Court, when considering whether a public authority has a duty of care to consider, among other things, whether the functions required to be exercised by the public authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions. Section 84(2) provides that “an act or omission of the public authority relating to a function conferred on the public authority … does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no public authority … could properly consider the act or omission to be a reasonable exercise of its functions”.
I agree that the duty alleged to be owed by VLA to Mr Soo is a novel duty. However, when exercising the power to grant summary judgment, this Court must be cautious not to stifle the development of the law. Given that VLA exercises a considerable degree of influence over the affairs of potentially vulnerable people when making funding decisions about legal representation in criminal trials, I do not consider that Mr Soo’s contention that VLA owed him a duty of care when making decisions about funding his legal representation in a criminal proceeding to be so hopelessly inarguable such as to justify granting summary judgment on that ground alone. Similarly, while I accept that Mr Soo would face substantial hurdles in establishing that VLA had a duty of care or breached any duty owed by it to Mr Soo by reason of ss 83 and 84 of the Wrongs Act 1958 (Vic), ultimately, the final determination of the issues raised by those provisions are very fact dependent, such that proceedings raising such issues are not necessarily appropriate for summary judgment.
Given my finding that Mr Soo’s claims in this proceeding amount to an impermissible collateral attack upon the outcome of the trial, and the appeals from the verdict at trial, his claims in the proceeding are untenable, and have no real prospects of success. As a consequence, there is no utility in allowing Mr Soo an opportunity to replead his claims. Accordingly, I will grant summary judgment against the plaintiff, and dismiss the proceeding. I shall hear further from the parties regarding the question of costs.
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