Appellant v Respondent

Supreme Court of Victoria|2010-08-13|Before: EMERTON J

PRACTICE AND PROCEDURE - Appeal from the decision of an Associate Judge to permanently stay proceedings - Abuse of process - Civil action for damages against barrister for conduct of appeal - Collateral attack on finality of appeal and conviction.

1 On 28 June 2010, Mukhtar AsJ ordered that this proceeding be permanently stayed. The appellant, who is the plaintiff in the proceeding, now appeals pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 against that order and the accompanying order as to costs.

2 In the proceeding, the plaintiff seeks damages against the defendant, a criminal barrister, for negligence and breach of retainer in conducting the plaintiff's criminal law appeal in the Victorian Court of Appeal in 2002. He apparently alleges that at his trial, the Crown prosecutor impermissibly altered an agreed statement of facts that went to the jury and that his counsel's failure to raise this point on appeal led to his application for leave to appeal his convictions being dismissed. However, as a result of the troubled history of this proceeding, there is still uncertainty about the content and status of his statement of claim.

3 By summons dated 10 June 2009, the defendant applied for summary judgment under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 or for a permanent stay of the proceeding on the ground that it was an abuse of process. The defendant's summons was initially heard by Mukhtar AsJ on 14 September 2009. His Honour granted a temporary stay on the basis that the plaintiff would take certain steps before pursuing his claims in the proceeding. In June of this year, some nine months after his summons initially came on for hearing, the defendant again moved the Court for summary dismissal or a permanent stay. Mukhtar AsJ ordered that the proceeding be permanently stayed.

4 In his reasons for decision, Mukhtar AsJ described the history of the proceedings. In this appeal, Mr Kelly SC for the defendant again took the Court through that convoluted history, which is broadly as follows:

(a) In 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. After a lengthy trial, he was convicted on all four counts.

(b) The plaintiff appealed conviction and sentence. The defendant appeared for him on the appeal, although he had not appeared for him at trial. There were ten grounds of appeal against conviction and six grounds against sentence. On 26 June 2002, the plaintiff's application for leave to appeal the conviction and the sentence was dismissed.

(c) On 8 February 2008, after he was released from prison, the plaintiff filed a writ in the Supreme Court naming the defendant. On 5 January 2009, the Prothonotary alerted the plaintiff that as no steps had been taken in the proceeding since the writ was filed, it would be referred to the Court to be dismissed unless a response was received.

(d) On 6 February 2009, the plaintiff served the writ which contained a general endorsement.

(e) On 16 March 2009, the plaintiff served a statement of claim on the defendant. As the defendant's lawyers considered it to be unintelligible, they invited the plaintiff to re-plead. He declined to do so.

(f) Nonetheless, on 15 April 2009, a substantial defence was filed which repeatedly alleged that various paragraphs of the statement of claim were scandalous and vexatious, could embarrass or delay the trial of the proceeding, constituted an abuse of the process of the Court and should be struck out.

(g) On 6 May 2009, orders were made that any proposed further statement of claim be filed and served by 5 June 2009. That was not done.

(h) On 10 June 2009, the defendant filed a summons seeking orders to strike out the plaintiff's pleading, or to obtain judgment or a permanent stay.

(i) On 16 June 2009, the plaintiff belatedly filed a proposed amended statement of claim.

(k) On 24 June 2009, Mahony AsJ ordered that the proposed amended statement of claim be struck out, and the endorsement on the writ and the statement of claim be removed from the Court file. In order to assist the plaintiff to put his case in order, his Honour ordered that by 5 August 2009, the plaintiff either -

file and serve an affidavit proving facts which would support one or more of the causes of action against the defendant and exhibit a draft amended statement of claim based on that affidavit or those causes of action which pleaded the material facts with respect to the relevant causes of action; or
file and serve a notice that he intended to rely on and support the proposed amended statement of claim filed on 16 June 2009.

The plaintiff did neither.

(k) On 14 September 2009, the present summons came before Mukhtar AsJ. Although he had not done as Mahony AsJ had ordered, the plaintiff swore an affidavit dated 14 September 2009, in which he referred to the submissions made by the defendant on 24 June 2009 to the effect 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 or appeal when that criminal conviction has been set aside. The plaintiff deposed that in order to avoid further attack on his claim, he had decided to seek a temporary stay of the proceeding to allow him to make application for special leave to appeal to the High Court or to apply for leave to introduce a new ground of appeal out of time in the Court of Appeal. He deposed that if he was successful in overturning his convictions by either one of these means, then he would pursue the current proceeding. Alternatively, if he was unsuccessful in overturning his convictions, he might need to reassess the current proceeding.

(n) Accordingly, on 14 September 2009, the plaintiff 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. This undertaking was reflected in orders made by Mukhtar AsJ which temporarily stayed the proceeding to enable the plaintiff to make application to the High Court or in the Court of Appeal. In the event that those applications were dismissed, there would be judgment for the defendant pursuant to r 23.01.

5 In the application before Mukhtar AsJ on 21 June 2010, his Honour observed that in the nine months or so since he made the orders temporarily staying the proceeding, the plaintiff had not made either of the contemplated applications. The defendant adduced evidence of enquiries made of both the High Court Registry and the Court of Appeal Registry confirming that the plaintiff had not filed an application of the type envisaged by the orders made by Mukhtar AsJ on 14 September 2009.

6 The plaintiff sought to explain his position in an affidavit sworn on 7 June 2010. That affidavit is now before this Court in the appeal. In his 7 June affidavit, the plaintiff deposed to the following:

(a) As a result of the hearing before Mukhtar AsJ on 14 September 2009, he continued his research into the reopening of his appeal and 'realised the difficult road to reopening an appeal or to seek special leave out of time'. He recognised that as an unrepresented person, he required specialist advice to assist him;

(b) It has taken him some time to gain access to someone at the Victorian Bar who can provide him with assistance on a pro bono basis. He has now done so;

(c) In tandem with obtaining advice in relation to the appeals, on 31 December 2009 he filed an application for a grand jury in respect of the conduct of the prosecutor at his trial. This application represents an 'alternative remedy' to the reopening of the appeal before the Court of Appeal. For some reason this application has not been progressed by the Court of Appeal, but that is through no fault of his own. The Acting Registrar has refused to accept his application, and he intends to have that decision reviewed;

(d) Earlier this year, he was contacted by the Court and asked about his progress in this matter. He informed the Court about his application for a grand jury. The officer to whom he spoke seemed content with that;

(e) The work involved in collating the relevant aspects of the trial and then conducting a detailed analysis of the recorded aspects of the stated agreed facts and the amended statement of agreed facts in the trial is a considerable task given that the trial went for some five and a half months and the transcript runs to many thousands of pages. This work is necessary, has been commenced and is being undertaken in order to obtain the advice that he is seeking;

(f) He has been somewhat 'hamstrung' by the fact that he has been unable to source a copy of the full version of both the original statement of agreed facts and the amended statement of agreed facts from the Crown, his trial solicitor, and his appellate solicitors. He was written to his appellate solicitors twice, but has not received a reply;

(g) He did not appreciate back in September that the time frame was unrealistic and his appreciation of what is involved has only been informed by the research he has done as to the burden he would need to discharge in reopening the appeal in the Court of Appeal or seeking special leave to appeal to the High Court;

(h) He now has 'potential access' to a respected member of the Inner Bar, but he is waiting for the initial advice to be completed by the senior junior who is already assisting him;

(i) The defendant's solicitors did not write to him to ask him about progress. Their first step was to re-agitate their client's application to enter judgment against him or permanently stay the proceedings. In response he sent a letter to the defendant's solicitor setting out his progress to date and seeking additional time.

7 As Mukhtar AsJ observed, rather than pursuing the applications that were contemplated, the plaintiff has chosen to file an application for a grand jury into the conduct of the prosecutor at his trial. Mukhtar AsJ concluded that the plaintiff was intent on pursuing his grievance against the Crown prosecutor and that the application for a grand jury was his preferred course of action because he recognised the difficulties that he faced reopening his appeal or in appealing to the High Court of Australia so long after his unsuccessful appeal in 2002.

8 On appeal, the plaintiff relied on his 7 June affidavit and submitted that it was not true that he had done nothing to progress applications to the Court of Appeal and the High Court. He handed up a copy of a letter that he had received from the Deputy Registrar of the High Court of Australia referring him to the rules for the filing of applications out of time. He submitted that this showed that he was actively pursuing his application for special leave in the High Court. The date of the letter from the High Court is 25 August 2009. Given that it was received before the hearing in September last year, it hardly constitutes evidence that the plaintiff has been prosecuting his application to the High Court with 'all due expedition' in accordance with his undertaking to the Court.

9 The plaintiff also referred to the fact that he now had 'access' to two barristers, who he said were considering the relevant information. He did not say what that information was or what the consideration entailed.

10 I do not accept that the plaintiff has been 'hamstrung' in pursuing applications to the Court of Appeal or the High Court because he could not obtain a copy of the full version of the statement of agreed facts and the amended statement of agreed facts. The plaintiff's 7 June affidavit reveals that the plaintiff did not request those documents from his solicitors until 14 May 2010, almost eight months after Mukhtar AsJ's previous orders.

11 In substance, the plaintiff's submissions on appeal were no more than a plea for more time to put his case in order, in circumstances where it remains unclear what he proposes to do or how he proposes to do it. It is not clear that he intends to pursue applications to the Court of Appeal or to the High Court at all, let alone 'with all due expedition'. His 7 June affidavit was largely concerned with the difficulties he was experiencing having his application for a grand jury considered. The prospect of pursuing the Crown prosecutor by means of a grand jury now seems to be his principal focus.

12 Like Mukhtar AsJ, I have found the plaintiff's evidence as to his endeavours to put his case in order unconvincing. I am not persuaded that he has taken any satisfactory steps to progress either of the applications that he foreshadowed last year to have his convictions set aside. He has been given many opportunities to put his case in order, and he has repeatedly failed to do so. I accept that he is a busy man, but this does not excuse the highly erratic and often dilatory manner in which he has prosecuted this proceeding. The defendant's position must be considered. He has been exposed to extremely serious and damaging allegations, including of fraud. There is little sign that the plaintiff is able put his case in order so as to permit the defendant to meet those allegations and put them to rest. I note that the plaintiff has not, as yet, even managed to put on a statement of claim in the proceeding.

13 Moreover, as Mukhtar AsJ pointed out, the determination of the defendant's application for summary judgment or a permanent stay does not depend solely upon the plaintiff's inaction. Controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. Decisions of the Court, unless set aside or quashed, are to be accepted as incontrovertibly correct. The defendant submits that the proceeding is an abuse of process because it constitutes a collateral attack on the decision of the Court of Appeal and the jury.

14 As authority for this proposition, the Court was referred to the decision of Keane JA in Lewis v Hillhouse.[1] In that case, the appellant, Mr Lewis, contended that his conviction would have been quashed and he would not have been convicted on a retrial of the charges, had submissions been advanced on his behalf in relation to the admission of certain evidence. Keane JA held that the appellant's case as pleaded was necessarily concerned to establish that the appeal would have succeeded and his conviction would have been quashed had the evidence admission point not been abandoned. That was clearly a collateral attack on the decision of the Court of Appeal and the jury. In order to avoid this, Mr Lewis sought to frame his case as one involving a loss of the 'prospect' of the quashing of his convictions. In his Honour's view, the 'prospect' formulation faced two obstacles:

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 suffered any loss at all.[2]

15 His Honour said that the public policy favouring the preservation of public confidence in the due administration of justice was engaged by claims which were apt to diminish that confidence by undermining the status of the original decision which has not been set aside. He held that to contend that a person adversely affected by the decision of a court should be entitled to compensation on the footing that the decision was not incontrovertible, but likely to have been wrong, would be to offend public policy. The pursuit of that contention had 'a capacity to bring the administration of justice into disrepute', at least while the earlier decision stood.[3]

16 In this case, the plaintiff's claim against the defendant necessarily calls into question the convictions entered against him. The calling into question of the convictions entered against the plaintiff by means of a civil proceeding against his counsel has a capacity to bring the administration of justice into disrepute, at least while the convictions stand. This was the fundamental difficulty that the plaintiff recognised in his affidavit sworn 14 September 2009 and which prompted him to give the undertaking to the Court to pursue any applications to have his convictions set aside with due expedition.

17 The plaintiff referred the Court to three authorities which he said he had been told might be of assistance to him. He did not have the authorities in Court with him and could not explain their effect, but I indicated that I would find them and consider them. They are Burrell v R,[4] DJL v The Central Authority[5] and D'Orta-Ekenaike v Victoria Legal Aid.[6] I have considered these cases. Although Burrell and DJL expose the difficulty in reopening final orders after entry, that consideration has not caused me to change my view of the merits of this appeal.

18 In these circumstances, I must conclude that the proceeding is an abuse of process and that it ought to be permanently stayed. Accordingly, I propose to dismiss the appeal and order that the proceeding be permanently stayed.

[3] Ibid [17], quoting Giannarelli v Waith [1988] HCA 52; (1988) 165 CLR 543 at 573-574 (Wilson J).

Court (General Civil Procedure) Rules 2005

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