It's important to bear in mind that the relief sought and dealt with by me on 12 April 2018 related to matters of practice and procedure. Those matters were a re-referral for pro bono assistance, in the alternative a stay of proceedings, and costs. Orders of this type are not subject to the rule stated by Mason CJ in Autodesk Inc v Dyason (No 2) which relates to the Court's limited power to vary or set aside final orders made after a full hearing on the merits.
The Court has wide powers to vary or discharge interlocutory orders where circumstances make it proper and just to do so: Douglas v John Fairfax & Sons Limited [1983] 3 NSWLR 126; indeed where justice and the interests of the administration of justice require it, second or subsequent interlocutory application concerned with the same subject matter may be entertained without the applicant demonstrating any material change in circumstances: Nominal Defendant v Manning (2000) 50 NSWLR 139. The breadth of this statement, of course, must be read subject to the overriding purpose and the provisions of ss 56 to 60 of the Civil Procedure Act 2005 (NSW). Notwithstanding the breadth of the Court's power, I am not satisfied that Mr Clark should be permitted to reopen and re-agitate my decision of 12 April 2018.
I will not reiterate all of the reasons I gave for refusing relief at that time. My reasons have been published as Clark v State of New South Wales [2018] NSWSC 450. The major relief sought by Mr Clark at that time was in the following terms:
"The Registrar, himself or herself is directed to comply with the previous order of Adams J, namely; to refer the Applicant directly to a solicitor and/or barrister on the pro bono list of solicitors (sic) and barristers available for pro bono assistance under Division 9, Section 4 UCPR." (original emphasis.)
In the alternative, he sought a stay of the proceedings he had brought against the defendant as plaintiff. Mr Clark no longer seeks a stay and it is unnecessary to explain why that relief was refused.
I stated my reasons for disposing of the main relief sought in the following terms at [19] - [22] of my decision, which I reproduce below:
But I reject the argument that the Registrar failed in the obligation under r 7.36(4) to attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the pro bono panel. Rule 7.36(4) UCPR in its terms imposes an obligation on the Registrar only to attempt to arrange for legal assistance. There is no obligation upon a barrister or solicitor to accept a referral. This is made clear by r 7.36 UCPR which is in the following terms:
"The Registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral." (Emphasis added.)
This is re-enforced by the terms of r 7.38 UCPR, which is to the effect that a lawyer is only obliged to provide assistance if the lawyer agrees to accept the referral. From these rules, it is clear that the Court is not empowered to conscript barristers or solicitors into its service by accepting a referral.
It is not mandatory that the Registrar maintain a list of persons who have agreed to participate in the scheme, referred to as the "pro bono panel". Rule 7.35 empowers, but does not oblige, the Registrar to establish such a panel. It is not the current practice of the Court to maintain such a list. There is nothing in the Rules which renders the reliance of the Court upon the schemes established by the Bar Association and the Law Society for pro bono assistance impermissible and there are obvious advantages in adopting this practice, including efficiency in the administration of the scheme. That the profession and the professional bodies may establish their own criteria for acceptance of a Court referral is not inimical to the operation of the Rules. As I have emphasised, the Court may refer a litigant for assistance, but neither individual lawyers, nor the profession as a whole, is obliged to accept the referral. Once the Registrar has made the referral in accordance with r 7.36(4), the Registrar's obligation has been discharged whether or not the referral successfully matches the litigant with a barrister or solicitor who is prepared to accept the referral for pro bono assistance. I repeat, there is no obligation on any lawyer to accept the referral.
For these reasons, I am not satisfied that Mr Clark has made out a case for me to direct the Registrar to comply with the order made by Adams J on 18 November 2016. The Registrar has already complied with that order. That the referral was unsuccessful in matching Mr Clark with a barrister prepared to assist may be an unfortunate outcome, but it is an outcome which must be inevitable from time to time in a scheme which depends upon the voluntary participation of the profession. The capacity of individual barristers and solicitors and of the profession as a whole to absorb referrals and provide pro bono assistance is strictly limited. It is understandable then that limited capacity should be rationed according to objective eligibility criteria established by the profession itself. The Court depends upon the goodwill of the profession for the provision of pro bono assistance. The Court must accept, within reason, the terms upon which the profession is prepared to provide it.
For practical purposes, the main relief sought in the motion I am now considering if I grant leave to reopen, is in the following terms:
The Applicant is to be provided with the list of solicitors and barristers on the pro bono panel so he himself can follow up on the previous order of Adams J in referring the drafting of the Applicant's statement of claim to a solicitor and/or barrister on the pro bono panel.
A I have said, the plaintiff has purported to file his amended Statement of Claim on 13 June 2018. But, more importantly, as I pointed out at [21] of my previous judgment, there is no such list. I repeat it is not the current practice of the Court to maintain a list of barristers and solicitors prepared to accept pro bono referrals. Rather, the Court relies upon the organised profession through the Bar Association and the Law Society to assist with referrals when orders are made. Accordingly there is nothing practical to be gained from setting aside the previous orders and re-opening the hearing as the result must inevitably be the same. And I refuse the relief sought.
I am prepared to accept that extreme duress could at least underpin a ground for re-opening a hearing where the power to re-open exists. Obviously a person labouring under such conditions may be at a very considerable disadvantage and, as I say where the power to re-open exists, it may be in the interests of justice for the Court to allow a further opportunity to correct errors or omissions that were made under duress.
I must say having reviewed the transcript of the hearing, my reasons for judgment and my recollection of the events, it did not occur to me that there was any possibility that Mr Clark was labouring under duress, let alone extreme duress. But it's unnecessary for me to decide whether he has established that ground. As I have said, the main relief he seeks is simply not available. There is no argument, additional fact or other evidence that could have been presented to change that.
[2]
The reasons for delay in giving this judgment
I apologise to the parties for the long delay in giving this judgment and wish to explain how that came about. As I have said, the plaintiff apparently forwarded the Motion to re-open to the Registry on 13 April 2018, although it was not filed until 23 May 2018. By reference to the affidavit of Helen Christina Maamary affirmed on 25 May 2020, it appears that Registrar Bradford informed the parties by email on 23 May 2018 that I would consider the plaintiff's Notice of Motion in chambers as requested. I have seen the orders that Registrar Bradford made on that day directing the defendant to file submissions by 14 June 2018 and the plaintiff to file and serve written submissions in reply by 28 June 2018. Although I do not recall discussing the matter with the Registrar, I fully accept that he would not have made that order without reference to me.
I did not deal with the matter immediately as it was necessary to allow the parties opportunity to comply with the timetable and for me to consider any further written argument advanced in accordance with it. Mr Clark, as I have said, chose not to avail himself of the opportunity to file submissions in reply. It is likely that after the expiration of the timetable I notionally allowed additional time lest the plaintiff who is in custody had experienced difficulty with compliance.
Whilst I was absent from Sydney on circuit in July 2018, the Registry arranged to uplift the file from my Chambers (this in fact did not occur until I returned) for administrative purposes. It seems that when those purposes were satisfied, the file remained in the Registry and not having possession of it as a reminder, I overlooked the matter.
I was absent on extended leave when the Registry received Mr Clark's letter of 11 October 2018 and it did not come to my attention upon my return to chambers. During my absence my staff was re-deployed working for other judges. Until the matter was listed for directions before the Registrar on 26 May 2020 and Ms Maamary's affidavit was sent to my chambers, I was unaware that the matter had been overlooked. When the file was returned to my chambers on 28 October 2018 Mr Clark's letter of 11 October 2018 was with the papers.
Although there seems to have been an omission to return the file to my chambers. Responsibility for the delay must be mine alone.
My orders are:
1. The plaintiff's Notice of Motion filed on 23 May 2018 is dismissed;
2. As the matter has been dealt with in chambers without the need for any appearance by any party, the defendant's costs are costs in the cause.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 May 2020
On 12 April 2018, I made an order dismissing the plaintiff's Notice of Motion propounded on 31 January 2018 and an order that he pay the costs of each respondent. I also made a procedural direction which is no longer relevant, but which the plaintiff believes he has complied with.
On 13 April 2018, the plaintiff forwarded another form of Notice of Motion to the Registry (apparently it was accepted for filing on 23 May 2018) by which he sought the following orders:
1. The Applicant's motion hearing that was heard by Justice Campbell on 12 April 2018 is re-opened to [hear] the further submissions of the Applicant.
2. This Notice of Motion is to be heard in chambers by the primary judge, Justice Campbell in chambers.
3. The orders of the primary judge dismissing the Applicant's Notice of Motion dated 31 January 2018 and awarding costs to the Respondents on that motion are set aside.
4. The Applicant is to be provided with the list of solicitors and barristers on the pro bono panel so he himself can follow up on the previous order of Adams J in referring the drafting of the Applicant's Statement of Claim to a solicitor and/or barrister on the pro bono panel.
5. Subject to any appearance by a solicitor or barrister on behalf of the Applicant he is to file and serve an Amended Statement of Claim on the Respondents on or before 4 June 2018.
6. The costs will be costs in the proceedings.
In his affidavit, the plaintiff made reference to the judgment of Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 at page 303 where his Honour said:
"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."
The plaintiff submitted that there is "another criteria when the proceedings should be allowed to be re-opened and that is when a party is under extreme duress before and/or during the proceedings" (original emphasis.)(Affidavit, 16 April 2018 at [3]).
The circumstance of extreme duress relied upon by the plaintiff is that the fear and duress he experiences while in custody, having regard to the nature of the offences of which he has been convicted, was aggravated by the circumstances in which he was to be transported to court for the hearing before me on 12 April 2018.
The first and second defendants oppose the relief sought but consent to the matter being dealt with in chambers. The defendants submit that the material placed before the Court by the plaintiff does not engage the principle articulated by Mason CJ in Autodesk Inc V Dyason, and that extreme duress is not a category justifying the exercise by the Court of its power to reopen.
On 11 October 2018, the plaintiff wrote to the Court seeking to amend his Notice of Motion to seek: an oral hearing, and an order in the nature of an injunction restraining the defendants from threatening or intimidating him and a mandatory injunction requiring them "to provide to [the plaintiff] every possible administrative assistance [to allow him] to conduct any proceedings in which he is engaged as the [defendants] have done in the past".