Walsh v Croucher

[2010] VSC 296

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4551 of 2008

JOHN RICHARD WALSH	Plaintiff
v
MICHAEL CROUCHER	Defendant

---

JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2010
DATE OF JUDGMENT:	28 June 2010
CASE MAY BE CITED AS:	Walsh v Croucher
MEDIUM NEUTRAL CITATION:	[2010] VSC 296

PRACTICE AND PROCEDURE ― Abuse of process ― Plaintiff convicted on criminal charges ― Appeal dismissed ― Subsequent civil action for damages against barrister for conduct of appeal ―  Collateral attack on finality of appeal and conviction  ― Permanent stay of civil proceeding

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr A J Kelly SC	Moray &Agnew

HIS HONOUR:

1. The plaintiff has commenced this proceeding in an attempt to seek damages against the defendant, a criminal barrister, for a breach of retainer in conducting the plaintiff’s criminal law appeal in the Victorian Court of Appeal in 2002.  There are allied allegations of a breach of fiduciary duty and misleading and deceptive conduct in contravention of s 11 of the Fair Trading Act, but based on the same facts.  The plaintiff seeks damages, including punitive and exemplary damages.  I have said “in an attempt” because for the plaintiff, a litigant in person, the case has had an unstable or troubled procedural history and even to this stage, as a result of a past strike out application brought by the defendant, there is still uncertainty about the content or status of his statement of claim.

1. The defendant has applied for summary judgment under r 23.01, or, for a permanent stay on the ground that the proceeding is an abuse of process. That application was made by summons over a year ago, on 10 June 2009, when some intermediate orders were made. The summons was last before me on 14 September 2009 when I granted by consent a stay pending certain events, or actions to be pursued by the plaintiff. Circumstances are such that the defendant, acting under a liberty to apply that I then gave, now re-agitates the application and moves the Court for a summary dismissal or a permanent stay.

1. I have come to the conclusion that the proceeding is an abuse of process and ought be permanently stayed. 

1. As this is an unusual case involving some unusual procedural events, and as it concerns a serious criminal conviction, it is necessary to give a careful exposition of the underlying procedural facts and some elements of the case.  I have taken selectively the facts concerning the criminal proceedings from the Court of Appeal’s judgment dismissing the plaintiff’s appeal from conviction and sentence, reported in R v Walsh [2002] VSCA 98 and the sentencing remarks of the trial Judge in R v Walsh [2000] VSC 114.

1. On 19 October 1999, the plaintiff was arraigned on a presentment containing one count of conspiracy to defraud and three counts of perverting the course of justice.  The trial ran over 99 days.  The plaintiff, who was tried alone, was convicted on all four counts.  He was given a combined head sentence of ten years of imprisonment, with a non‑parole period of seven years. 

1. The four counts on which the plaintiff was convicted concerned a conspiracy to defraud the Nauru Phosphate Royalties Trust by inducing the trust to put money into a purported investment scheme from which money was directed by the co‑conspirators for their own use and benefit.  The other charges concerned the use of false documents to impede a police investigation and attempting to persuade others to give false information to the police and give false evidence in judicial proceedings.  In his sentencing remarks, the trial Judge accepted the prosecutor’s description of the plaintiff as an “opportunistic, calculating and manipulative liar” and said “One might add the description bald faced.  These are harsh judgments and are not made lightly but seem to me to be clearly justified.” 

1. The plaintiff appealed conviction and sentence.  The defendant appeared for him on the appeal (but not at trial).  There were ten grounds of appeal against conviction and six grounds against sentence. On 26 June 2002, the Court of Appeal dismissed the plaintiff’s application for leave to appeal the conviction and sentence.  In the joint judgment of Phillips and Buchanan JJA this was said:

Mr Croucher, who appears for the applicant but was not counsel at the trial, has done a most thorough job, having explored more than 500 pages of charge and, no doubt, at least in large part, the 6,000 pages of transcript which precede the commencement of the charge.  In seeking leave to appeal against conviction, counsel now relies upon ten grounds of appeal, some of them sub‑divided but all in large part challenging the way in which the trial was conducted below, though no significant complaint was made at the time.  Trial counsel enjoys advantages not shared by his successors and it is important to observe that counsel now advocating these grounds was not counsel at the time and therefore can not be alive to all the nuances at trial, any more than we as the appellate tribunal.  To some degree at least, the challenges now made impugn the conduct of counsel at trial and, as in cases where a challenge is made more directly to the conduct of counsel at trial, it seems to us that we should proceed with caution, mindful of the difficulties facing us in reconstructing what must have been a difficult and complex proceeding.

1. After he was released from prison, the plaintiff filed a writ in this Court on 8 February 2008.  The court file shows that on 5 January 2009 the Prothonotary wrote to the plaintiff informing him that as no step had been taken since the writ was filed, the proceeding would be referred to the Court to be dismissed, unless a response was received.  The plaintiff responded by serving the writ on 6 February 2009, that is, two days before the expiration of the writ.  The writ contained an endorsement of claim, or what used to be known as a general endorsement. 

1. On about 16 March 2009 the plaintiff served a “statement of claim” but this was considered by the defendant to be unintelligible and as not disclosing a cause of action.  The defendant’s solicitors invited the plaintiff to re‑plead his statement of claim, but it does not appear that he did.  Nevertheless a substantial defence was filed on 15 April 2009.  The defence makes repetitively a contention that various paragraphs are scandalous and vexatious, could embarrass or delay the fair trial of the proceeding, constitute an abuse of process of the Court, and should be struck out. 

1. On a directions hearing on 6 May 2009, it appears the defendant re-agitated the competence of the statement of claim, for the Court ordered that any proposed draft statement of claim be filed and served by 5 June  2009.  That was not done.  The next step was for the defendant to file a summons on 10 June 2009 seeking orders to strike out the plaintiff’s pleading, or to obtain judgment or a permanent stay.  That summons was returnable on 24 June 2009 but before then, on 16 June 2009, the plaintiff filed belatedly a draft amended statement of claim.  

1. On 24 June 2009, Mahony AsJ ordered that the (proposed) statement of claim filed on 16 March 2009 be struck out, and the endorsement on the writ and the statement of claim be removed from the court file.  His Honour also made this order:

   By 4.00 pm on 5 August 2009 the plaintiff either –

   (a)file and serve an affidavit proving facts which would support one or more causes of action against the defendant and exhibiting a draft amended statement of claim based on that or those causes of action and pleading, with due particulars, the material facts with respect [to]that or those causes of action; or

   (b)file and serve a notice that on the adjourned date he intends to rely on and support the draft amended statement of claim filed on 16 June 2009 and served on 15 June 2009.

2. The summons was adjourned to 14 September 2009, when it came before me.  The fact is that from 24 June 2009 the plaintiff had done nothing.  That is, he was given an opportunity by Mahony AsJ to put his case in order or declare his position and he chose not to do so.  On 14 September 2009, the plaintiff swore an affidavit saying:

…

2.On the last hearing date, being 24 June 2009, Mr Kelly for the Plaintiff (sic) handed me an 11 page Outline of the Defendant’s Submission and His Honour Associate Justice Mahony then set a new directions hearing date, being this day. 

3.In Mr Kelly’s submission, at page 7 he made the statement that:

“Where the judgment of the Court stands on a criminal conviction, a person may only mount a civil proceeding for damages grounded on the neglect of counsel in the conduct of the criminal trial/appeal when that criminal conviction has been set aside.  While the conviction stands, the use of a civil proceeding to mount a collateral attack on the conviction is an abuse of process.”

4.Mr Kelly’s submission fell in line with the statement of Associate Justice Daly in her Oral Reasons for Decision dated 6 March 2009, in regard to a related case in which her Honour stated:

“The proceedings are stayed, to the extent that claims made by Mr Walsh can only be successful if Mr Walsh can prove the result of the Court of Appeal hearing would have been different had Mr Walsh been able to attend the hearing of his appeal from his conviction.”

Her Honour went on to state:

“The collateral attack on the Court of Appeal decision is the primary basis for staying Mr Walsh’s claim … “

5.…  I have now decided that in order to avoid further attack on my claim, I should seek a temporary stay of this proceeding to allow me to seek special leave to appeal out of time to the High Court or seek leave to introduce a new ground of appeal out of time to the Court of Appeal.

…

8.I humbly seek that this Court grants a temporary stay whilst I pursue either one of those appeal processes.

9.If I am successful in either one of those appeal processes and my conviction is overturned, then I could pursue this proceeding.  Alternatively, if I am unsuccessful in overturning my conviction, I may need to re-assess this proceeding.  In the meantime there seems little utility in proceeding with the interlocutory steps of this proceeding.

1. Thus the plaintiff’s position was to concede the argument put against him, and take the course of trying to overturn his conviction.  To that end, on 14 September 2009, Mr Walsh gave the Court an undertaking to prosecute any intended application to the High Court of Australia or to the Court of Appeal with all due expedition. 

1. I then made these three orders by consent:

1.This proceeding is stayed to enable the Plaintiff to take the action in paragraph 2(a) or 2(b) of this order.

2.In the event that:

(a)any application by the Plaintiff to the High Court of Australia for special leave to appeal out of time from the judgment of the Victorian Supreme Court, Court of Appeal given on 26 June 2002 in The Queen v Walsh [2002] VSCA 98 is dismissed; or

(b)any application by the Plaintiff to the Court of Appeal for leave to introduce a new ground of appeal in respect of an application for leave to appeal from the Plaintiff’s convictions on 31 March 2000 is dismissed -

there be judgment for the Defendant with costs of the proceeding pursuant to R 23.01 of the Supreme Court (General Civil Procedure) Rules 2005. 

3.The Plaintiff and the Defendant have liberty to apply upon giving the other party seven working days’ notice of their intention to do so.

1. It will be seen that in both cases the plaintiff was, more than seven years after his appeal was dismissed, contemplating making a special leave application to the High Court, or an application to the Court of Appeal for re-instating an appeal.  It might well have been thought naturally by the defendant that the prospects of success in either case was so fanciful that this was the only way to obtain self executing finality to this proceeding.

1. In the 9 months or so since those orders were made, the plaintiff has not brought the contemplated applications.  Mr Nathan Eric Cutts, the solicitor having the care and conduct of this matter on behalf of the defendant, has filed an affidavit sworn on 17 May 2010 stating that he has made enquiries of the High Court registry and the Court of Appeal registry and in neither case has the plaintiff filed any application of the type as envisaged on 14 September 2009.  He says that the defendant remains in practice as a barrister and the proceeding is of significant concern to him and wishes to have the matter finally determined.    

1. Mr Walsh has sought to explain his position in an affidavit sworn 7 June 2010.  He says that after the hearing on 14 September 2009

…I continued my research into the re‑opening of my appeal and to realise the difficult road to reopening an appeal or to seek special leave out of time…It has taken me some time to gain access to someone at the Victorian Bar who can provide me with assistance on a pro bono basis.   I have now done so.

1. But he then states a more telling fact, I think.  The Criminal Procedure Act 2009 (Vic) came into operation on 1 January 2010. Section 253 of that Act abolished the common law procedure of calling a grand jury.[1]  On 31 December 2009, that is the day before the commencement of the Criminal Procedure Act, Mr Walsh filed an application for Grand Jury concerning the conduct of the prosecutor at his trial.  This is connected, as I apprehend it, with his grievance about his unsuccessful appeal.  In substance, he asserted in court before me that the Crown prosecutor at trial had altered an agreed statement of facts that went to the jury and that this action should have been part of the challenge to the conviction on appeal, but the defendant did not do so.  He went further before me to say that the prosecutor is now the Director of Public Prosecutions, and barristers did not wish to be involved in a case involving an attack on a person of such high office because it might harm their own career prospects. 

   [1]For an explanation of the grand jury procedure and its history see Re Shaw (2001) 4 VR 103 (Ct App).

1. As for the grand jury, Mr Walsh states in his affidavit:

This application [for a grand jury] represents an alternative remedy to the re‑opening of the appeal before the Court of Appeal.  For some reason this application had not been progressed by the Court of Appeal but this is through no fault of my own, as I had been urging that the Court of Appeal deal with it, knowing full well that I cannot delay the matter.  Indeed, receiving no proper response to my letters to the Court, more recently I attempted to issue a summons to activate the application to the Court of Appeal, which has now led to a decision by the Acting Registrar refusing to accept my application which I now intended to have reviewed.

1. Mr Walsh has exhibited correspondence from the Registrar of the Court of Appeal which informs him that the grand jury application did not satisfy the requirements of the Crimes Act because no committal hearing has been held.  He was told that a necessary pre‑condition to the empanelling of a grand jury was not satisfied and therefore the application could not proceed.  His response by letter dated 1 June 2010 was to ask the Registrar whether such a decision was in exercise of an administrative function.  This was explained in court to mean that he would either seek to review the decision under the Administrative Law Act or if it was a judicial function, he would appeal that decision. 

1. Thus, it is apparent to me that Mr Walsh is intent on pursuing a grievance he has against the Crown prosecutor at the trial, and the application for a grand jury appears to be his preferred course of action recognising as he now does the difficulties that he faces in re-opening his appeal so late after his unsuccessful appeal in 2002. 

1. Despite that he says he has been “hamstrung” in bringing his applications to the Court of Appeal or the High Court, as earlier intended  because he cannot obtain a copy of the full version of the statement of agreed facts and the amended statement of agreed facts from the Crown.  He says that the time frame he was given in September 2009 was unrealistic and he did not appreciate that at the time.  The evidence is that he did not request those documents from his Legal Aid solicitors until 14 May 2010, almost eight months after my last order.  He says he has now the assistance of junior counsel, and a senior barrister who is willing to look at the work prepared by junior counsel.   These barristers did not appear on this application.  

1. I think the plaintiff’s evidence is unsatisfactory.  It lacks conviction.  It is not supported by any other evidence.  The plaintiff has not pursued either of the alternative courses that he proposed in September last year and which he conceded had to occur because he accepted the defendant’s submission that his civil proceeding was otherwise an abuse of process.  Instead he pursued a radically different course of calling a grand jury to purse the Crown prosecutor, an application which has been rejected, but he intends to challenge that rejection.   Of course, the plaintiff can say that he is entitled to pursue whatever courses are open to him.  But he has left it until May of this year to pursue the documents which he could have easily done last September.  I think the defendant is justified in reinstating the application for dismissal or permanent stay.

1. The determination of this application does not now depend solely upon the plaintiff’s inaction or procrastination.  That is, the defendant is not moving the Court to determine that the plaintiff has breached his undertaking to prosecute with all due expedition.  Rather, in the circumstances, the defendant now returns to the basis upon which he said in the first place that this case was an abuse of process. As the plaintiff has not taken either of the appeal courses that were proposed, the defendant now asks the Court to not only conclude that the plaintiff has not proceeded with due expedition with his previously intended applications, but as a primary matter, the Court should now certainly conclude that this proceeding is an abuse of process on the ground as always propounded, that is, the proceeding apart from its inherent defects in composition is an abuse of process because it constitutes a collateral attack on the decision of the Court of Appeal and the jury.

1. It is now established as a matter of public policy which is part of the common law that decisions of the Court, unless set aside or quashed, are to be accepted as incontrovertibly correct, a principle which is not only fundamental but is essential for the maintenance of public respect and confidence in the administration of justice:  see Rogers v The Queen[2] and D’orta-Ekenaike v Victorian Legal Aid.[3]  On principle, the Court will not allow the use of its process for a purpose alien to administration of justice, to cause improper vexation and oppression: see Williams v Spautz[4], Walton v Gardiner [5] and R v Smith [6]  

   [2](1994) 181 CLR 251 at 273.

   [3](2005) 223 CLR 1.

   [4](1992) 174 CLR 509 at 518-20, 535-7.

   [5](1993) 378 at 392.

   [6][1995] 1 VR 10 at 14-15.

1. In a case of this type, the principles were stated by Keane JA as a member of the Queensland Court of Appeal in Lewis v Hillhouse.[7]  Like this case, the appellant in Lewis contended that, had certain submissions been advanced on appeal, his conviction would have been quashed and he would not have been convicted on a retrial of the charges.  The appellant in Lewis accepted that a collateral attack on the decision of the Court of Appeal would be an abuse of process.  To avoid that, the case was put instead on the basis that the appellant had lost the prospect or chance of a successful appeal and a fair trial.  The Court of Appeal held that made no difference.  His Honour identified two legal obstacles which are also present here:

The first is that the public policy against collateral attack on a judgment is also offended by the prosecution of a claim that an earlier decision which has not been set aside is likely to have been wrong so as to found a claim for unlawfully inflicted damage.  The second obstacle is that the principles which permit the recovery of damages for loss of a chance or loss of an opportunity have no application here.  If the appellant cannot show that he remained wrongly convicted because the evidence admission point was not pressed on his behalf, he was not adversely affected by reason of the point not being taken.  In short, unless the appellant can show that he remained wrongly convicted, he cannot show that he has suffered any loss at all. 

[7][2005] QCA 316.

1. There are directions of the highest authority to say the power to grant a stay should be exercised only in exceptional cases, and not exercised where there is a power or means to remedy the abuse: see R v Smith[8].  The cases which tend to attract difficulty in judgment are those where it is said that the proceedings are foredoomed to failure, or where issues of ulterior motives arise.  But in this case the illegitimate purpose is manifest.  The plaintiff’s claim necessarily calls into question his convictions, which he is precluded from calling into question in a civil proceeding.  If the proceedings are serving an alien purpose, the Court should not hesitate to exercise its powers to ensure that the legal process is not used as in instrument of injustice.      

   [8][1995] 1 VR 10 at 14-15, 25.

1. Reference was also made the High Court’s decision in Aon Risk Services Australia Limited v Australian National University [9].  I doubt if the basis on which I have decided this case truly calls for an application of that case.  I would only say this.  There is in Aon an underlying principle that when exercising a discretion (at least to allow or disallow an amendment) a court may ask whether in all the circumstances a party has had a sufficient opportunity to identify the issues they seek to agitate, and whether they should be given any more opportunities.  I think that point has been exhausted in this case, but in any event no amendment can overcome the essential nature of this case as involving a collateral attack on the final decision of the Court of Appeal and the jury. 

   [9](2009) 239 CLR 175.

1. In my view the defendant’s application has a sound principled basis.  I would hold this proceeding is an abuse of process.  Rather than give summary judgment as was envisaged in my orders of 14 September last year, I now think the more apposite remedial order for proceedings which are illegitimately instituted (and in which there is still no acceptable statement of claim) is a permanent stay. 

1. Subject to hearing submissions, I would order that:

1.        This proceeding be permanently stayed.

2.        The plaintiff pay the defendant’s costs of this proceeding including the costs of this application and any reserved costs.

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