LAWYERS - tort - advocates' immunity - basis for immunity in finality of judicial determination - allegations against Legal Aid Commission in relation to provision of funding - allegations against plaintiff's legal representatives in relation to conduct of trial - whether open to plaintiff to show that impugned conduct had adverse effect on outcome of proceedings - discussion of D'Orta-Ekenaike v Victoria Legal Aid - [2012] NSWCA 222 - NSWCA 2012 case summary

Court of Appeal (NSW)|2012-07-12|Before: Allsop ACJ, Basten JA, Hulme J

Applicant self-represented Solicitors:

Applicant self-represented File Number(s): CA 2008/288581 Decision under appeal Jurisdiction: 9111 Citation: [2010] NSWSC 144 Date of Decision: 2010-03-09 00:00:00 Before: R S Hulme J File Number(s): SC 16303/2008; 16305/2008; 16307/2008; 16296/2008

Judgment 1JUDGMENT of the COURT delivered by BASTEN JA: The applicant, Mr Potier, is presently in custody serving a sentence having been convicted of a serious indictable offence. He is not entitled to institute civil proceedings in any court except by leave of the court: Felons (Civil Proceedings) Act 1981 (NSW) ("the 1981 Act"), s 4. The Court is not entitled to grant such leave unless satisfied that the proposed proceeding is not an abuse of process and that there is prima facie ground for it: s 5. 2In November 2008 the applicant sought leave to commence four sets of proceedings by summons issued in the Common Law Division of the Supreme Court. The proposed proceedings were as follows: (a) a claim against the Legal Aid Commission of New South Wales, being matter 16296/2008; (b) a claim against Mr David Arnott SC, the Director of Public Prosecutions and the Attorney General, being matter 16303/2008; (c) a claim against the applicant's trial representatives, McGowan Lawyers and Mr Terrence Healey, barrister, being matter 16305/2008, and (d) a claim against the Commissioner of Corrective Services, being matter 16307/2008. 3On 9 March 2010, RS Hulme J refused the applicant leave to bring each of the proposed proceedings: Potier v Arnott [2010] NSWSC 144. 4A person refused leave to commence proceedings may appeal against the refusal "as if the decision to refuse the leave were a decision on a point of law": s 6(1). Leave is required with respect to the appeal: s 6(2). The language of s 6(1) is obscure, but need not be considered further in this case. 5Pursuant to the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), Pt 51, an application for leave to appeal is to be filed and served within 28 days of the date of the judgment from which the appeal is brought, unless a notice of intention to seek to leave to appeal is filed and served within that time, in which case the time for filing a summons seeking leave is extended to three months: rr 51.8, 51.9 and 51.10. 6The applicant failed to comply with those time constraints and accordingly sought an extension of time within which to seek leave to appeal and also sought a direction for referral for pro bono legal assistance in this Court. Those applications came before Handley AJA who granted the extension of time but refused a direction for pro bono legal assistance: Potier v Arnott [2012] NSWCA 5. 7In respect of the extension of time, Handley AJA stated at [2]: "The delay, which was caused by the restrictions on Mr Potier's liberty, has been explained and there is no conceivable prejudice to the respondents. This procedural difficulty will be cured by extending the time for filing the summons for leave to appeal to 29 April 2010." 8In refusing directions for pro bono legal assistance, Handley AJA considered in respect of each proceeding whether he was able to discern any merit in the claims. He described the various claims as "hopeless" (at [14]), "a waste of the relevant barrister's time" (at [15] and [22]), and lacking any prima facie ground (at [32], [41] and [43]). Those conclusions might have resulted in a refusal of the application for an extension of time. However, time having been extended, it is necessary for this Court to consider the applications for leave to appeal in respect of each proceeding. 9The applications being listed before this Court, the applicant attended and was given leave to appear on the application pursuant to s 7(a) of the 1981 Act. Counsel representing four of the seven proposed defendants were present but there was no grant of leave to any of them to appear or be represented pursuant to s 7(b). Despite the manner in which the judgments in these matters and the papers in this matter have been entituled, this was an ex parte application, to which there were no respondents. The Court was mindful that such applications should not, by default, become adversary proceedings. Accordingly, the Court was not minded to give leave to any of the proposed defendants to appear, there being no apparent purpose in obtaining further assistance with respect to the application. Each case will, of course, need to be considered according to its own circumstances. 10Subject to one immaterial mistake, we see no reason to doubt the correctness of the views as to the merits of the claims expressed by Handley AJA in considering the application for pro bono assistance. It follows that we see no reasonable prospects of overturning the decisions of Hulme J in refusing leave to commence the proceedings. 11Before turning to the individual proceedings, two preliminary issues should be addressed.

Principle of finality 12First, each of the proposed proceedings involves a claim for damages referable to the adverse outcome for the applicant of the criminal proceedings which have resulted in his current incarceration. In each case, accordingly, the applicant must confront the reasoning of the High Court in D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1. In that case, the applicant had been charged with a serious criminal offence. He had obtained legal aid and a barrister briefed by Victoria Legal Aid to appear for him in defending the charge. He originally entered a plea of guilty, but when committed to the County Court of Victoria, reversed the plea and stood trial. His plea was led in evidence and he was convicted. On appeal, the conviction was quashed and, on retrial, the applicant was acquitted. He sued both Victoria Legal Aid and his barrister in negligence. The particulars of loss and damage included loss of liberty following his first conviction, psychological harm and the expenses of the retrial. 13The present proposed pleadings do not particularise loss and damage, but the applicant accepts that these would be the kinds of damage he would expect to receive, with the addition of exemplary damages. 14The importance of the reasoning in D'Orta-Ekenaike is that the principal judgment (of Gleeson CJ, Gummow, Hayne and Heydon JJ) abandoned traditional policy justifications for the immunity of those involved in judicial proceedings and placed the immunity squarely on the need for finality in litigation. The judgment stated at [43]: "The 'unique and essential function' of the judicial branch is the quelling of controversies by the ascertainment of the facts and the application of the law. Once a controversy has been quelled, it is not to be re-litigated. Yet re-litigation of the controversy would be an inevitable and essential step in demonstrating that an advocate's negligence in the conduct of litigation had caused damage to the client." 15D'Orta-Ekenaike was, in one sense, a stronger case for the plaintiff than is the present. The plaintiff had ultimately been acquitted. Accordingly, his claim related to what might be categorised as the erroneous intermediate outcome of the criminal proceedings, being the trial resulting in his conviction which was later quashed. Even in that circumstance, the Court upheld the summary dismissal of the civil claim. The immunity of the advocate extended to the immunity of Victoria Legal Aid.

Test for grant of leave 16Secondly, it is necessary to refer to the statutory test for leave to commence proceedings. It was not suggested by the primary judge that the proceedings otherwise involved an abuse of process if there was "prima facie ground" for them. In Ford v Simes [2009] NSWCA 351, Bergin CJ in Eq, with the agreement of Tobias JA and Handley AJA, stated at [31]: "The expression 'prima facie ground' in s 5 of the Felons (Civil Proceedings) Act as it applies to this application, means no more than a ground of appeal that is arguable or not totally hopeless." 17Taken literally, that limb of the test refers to a claim which at first sight and without investigation appears to be a "ground". Taken in its statutory context, it is properly understood as referring to a ground which on its face is not hopeless or unarguable. That test requires reference to the legal principles invoked by the cause of action upon which the claim is based and reference to the factual allegations contained in the proposed pleading. The purpose of the legislative scheme was, in part, to overcome the perceived injustice resulting from the decision in Dugan v Mirror Newspapers Ltd [1978] HCA 54; 142 CLR 583 that a convicted felon could not sue at law or in equity. On the other hand, the purpose of the statute was to permit the court to ensure that neither it nor prospective defendants were subjected to proceedings which were an abuse of process or which lacked any real merit: Jol v State of New South Wales (1998) 45 NSWLR 283 at 286E (Sheller JA, Beazley JA and Sheppard AJA agreeing). As with a summary dismissal application, the court is not required to embark upon a detailed analysis of the claims and the evidence which might support them, but rather is to form a broad impression as to whether a claim enjoys a realistic prospect of success and is thus not "hopeless" or "unarguable". Different expressions used from time-to-time do not indicate any difference in the standard to be applied.

(1) The Legal Aid Commission claims 18The claims against the Legal Aid Commission were twofold. The first concerned a refusal by the Commission to pay the expenses demanded by Telstra for compliance with a subpoena issued to Telstra during the first trial. The second aspect of the claim concerned the delay in providing legal aid. 19In respect of the Telstra records, the written submissions by the plaintiff in the Common Law Division stated (at paragraph 4) that "[h]ad the Telstra Material been obtained then it could have been submitted to the Jury in 2001 and having regard to all of the other factors, it is probable that a different verdict [would have been] reached". It will be seen that this cause of action runs squarely into the principle of finality in respect of the criminal proceedings, which was determinative in D'Orta-Ekenaike. 20The complaint in respect of delay in providing funds itself appeared to have two limbs. The first concerned the failure to provide funds in a timely fashion in respect of the second sentencing hearing. The complaint was that aid was provided, but only the day before the hearing. Again, to demonstrate loss and damage, it would be necessary to show that the delay had an adverse effect on the outcome. That course would not be open. Such relief as was available depended upon an application to the sentencing judge to adjourn the proceedings. If such an application were made and wrongly refused, the proper relief would be by way of an application for leave to appeal in respect of the sentence, which we were told had been lodged but not yet determined. 21The other element of complaint is apparently the delay in determining whether to grant aid in respect of the applicant's High Court appeal. However, legal aid was ultimately refused, a decision which cannot be challenged by a claim for damages, but may be subject to other forms of review. 22Handley AJA remarked that the delay in dealing with the application for aid to seek leave to appeal to the High Court was "extraordinary and very troubling, and [revealed] a sorry state of affairs": at [37]. No doubt the delay was extraordinary, but that fact alone did not lead to an inference that the causes of the delay were to be laid at the feet of the Commission. The applicant was invited in the course of argument to draw this Court's attention to any material which might give rise to such an inference, but was unable to do so. The applicant submitted, strenuously, that the error on the part of the Court of Criminal Appeal in respect of the first conviction was manifest. However, that description did not entail a necessary conclusion that the error was material, or of a kind which would give rise to relief on the basis of Burrell v The Queen [2008] HCA 34; 238 CLR 218, as the applicant submitted. That proposition was analysed by R A Hulme J in relation to a bail application: Potier v R [2010] NSWCCA 234 at [8]-[14]. Resolution of that issue is not necessary for present purposes, nor did the applicant suggest it was. 23The principal basis upon which these proceedings were held not to have prima facie grounds was the statutory protection provided to the Commission and its staff against any action, liability, claim or demand for an "act or omission done, or omitted to be done, in good faith for the purpose of executing this Act": Legal Aid Commission Act 1979 (NSW), s 27(1). 24In respect of this test, two questions arise. The first is whether the statutory protection provides a defence to be established by the prospective defendant, or whether a lack of good faith is an element of the claim required to be proved by the plaintiff in order to justify an action being brought against the Commission. Secondly, there is a question as to what might be thought to constitute evidence of a lack of good faith. Taking these two matters together, it may be correct to say that if the Court must ultimately be persuaded affirmatively by the defendant that the officers of the Commission acted in good faith, the applicant would not be required to prove (affirmatively) that they acted in bad faith. Nevertheless, the point remains that the proceedings will have no realistic prospect of success unless some factual basis is available to demonstrate lack of good faith. 25Both the primary judge and Handley AJA found there was a total absence of evidence supporting a claim that the relevant acts of the Commission were done otherwise than in good faith. Nothing has been put before this Court to demonstrate error in that assessment. However, the applicant took issue with what he perceived to be a slide in the reasons of Handley AJA and of the primary judge from the need to establish a lack of good faith on the part of the Commission to a discussion of what might provide evidence of "bad faith": [2012] NSWCA 5 at [41]. 26The primary point relied upon by the applicant is that his own counsel, appointed by the Commission, had recommended payment of the fee of $2,400 required by Telstra for production of the subpoenaed records. On the other hand, the applicant's submissions suggest that a further disbursement, in fact sought in the second trial, totalling $5,000, would have been necessary in order to obtain an expert analysis of the records. Whether or not that were so, the Commission had no statutory obligation to approve any particular expenditure, whether it was recommended by counsel or not. It is a daily occurrence for the Commission to obtain counsel's advice as to the merits of claims and steps in proceedings, which advice may properly be used in considering whether to provide some form of legal aid, without in any way binding the Commission. That conclusion is inevitable, given the obligations imposed on the Commission, for example, pursuant to ss 12 and 30 of the Legal Aid Commission Act. Accordingly, a refusal to incur an expense supported by counsel's advice provides no basis for challenging the good faith of the Commission. 27Leave must be refused in respect of the proposed appeal.

(2) Claim against prosecution 28The applicant sought to bring proceedings against Mr David Arnott SC, who was the prosecutor at his first criminal trial in 2001, the Director of Public Prosecutions and the Attorney General. 29The basis of the claim against the Attorney was unclear and arguably misconceived. It appears that his alleged liability was a form of derivative liability based on the misconduct of the prosecution at the criminal trial. If that were so, there might have been a claim against the State of New South Wales pursuant to the Law Reform (Vicarious Liability) Act 1983 (NSW) ("Vicarious Liability Act") and the Crown Proceedings Act 1988 (NSW). However, that is a technical matter which could be remedied and is immaterial for present purposes. 30The underlying cause of action, stated in negligence, was a breach of the prosecutor's duty to disclose relevant material at the trial, that being the material with respect to the telephone records which was obtained from Telstra, but apparently not given to the defence. 31To say that the prosecution has a "duty" with respect to the conduct of a criminal trial is not to say that the accused has a corresponding entitlement to bring a claim in damages for breach of that duty. The remedy is to be found within the criminal proceedings and any appeal from a conviction. The claim now sought to be brought is squarely inconsistent with the reasoning is D'Orta-Ekenaike. 32The applicant sought to rely in his written submissions on a statement derived from the judgment of McHugh J in D'Orta-Ekenaike at [99], that a prosecutor "can be sued for the damage to the liberty and reputation of the defendant" but only when the prosecutor acted "maliciously and without reasonable and probable cause". McHugh J went on to say: "Moreover, the action is not in negligence but for the tort of malicious prosecution." 33The present claim was not initially made in respect of such a tort, although an amendment to the foreshadowed pleading now seeks to rely on that cause of action. However, that tort has entirely different elements from the tort of negligence. In particular, it is an essential element of the tort of malicious prosecution that the proceedings must have terminated unsuccessfully for the prosecution: A v State of New South Wales [2007] HCA 10; 230 CLR 500 at [1]. That is not so in the present case. Further, the applicant's reliance on the description by McHugh J as to the barrister's duty to do nothing that would obstruct the administration of justice does not provide any basis for creating a right to compensation arising from a breach of that duty to the court: D'Orta-Ekenaike, at [111]. 34If follows that these proceedings also are without any prima facie ground and are, in a technical sense, an abuse of process. Leave to appeal in respect of the prosecution claim should be refused.

(3) Claim against defence lawyers 35The claim against the applicant's own counsel and solicitor was a claim in negligence based primarily on their failure to properly examine and follow instructions with respect to the recordings of the telephone conversations which were also at the heart of the second criminal trial. As Handley AJA recognised, such a claim could not succeed in the face of D'Orta-Ekenaike. 36The applicant sought to distinguish D'Orta-Ekenaike on the basis that it was not concerned with a contractual duty, as existed at least between the applicant and his solicitor. However, that is not a valid point of distinction. First, D'Orta-Ekenaike upheld summary dismissal of proceedings against the advocate and the instructing solicitor. Secondly, the joint judgment expressly stated that there was "no sound basis for distinguishing between advocates according to whether the advocate does or does not have a contract with the client": at [25]. 37The second limb of the claim related to the withdrawal of both counsel and solicitor in the course of the trial, apparently after a particular witness had given an answer to a question which was extremely prejudicial to the applicant, following which, however, the trial judge had declined to discharge the jury. The reason for counsel and solicitor withdrawing was not pleaded, other than by way of a denial that it was on the applicant's instruction. However, further explanation was provided in the course of oral submissions. 38It appears from the transcript of 14 September 2006 that Mr Healey withdrew from acting for the applicant on 7 September 2006. On 14 September, Mr Healey was called as a witness on the voir dire and was questioned by both the applicant and counsel for the prosecution as to the circumstances of his withdrawal. The contents of a note written by the applicant to Mr Healey were read onto the record: Tcpt, 14/09/06, p 799 (37)-(45). In answer to questions from the prosecutor, Mr Healey then recounted the whole of the conversation which he had had with the applicant: Tcpt, pp 800-804. 39A review of this material does not assist the applicant. There is no prima facie ground demonstrating breach of duty, but an inquiry into the conduct and its consequences will inevitably challenge the finality of the criminal proceedings. By contrast, misconduct on the part of legal representatives may constitute a ground of appeal if it causes a miscarriage of justice: Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [6]-[8] (Gleeson CJ). The primary judge noted that the point may in fact have been raised in the criminal appeal: [2010] NSWSC 144 at [23]. Whether or not that is so is not of present relevance and need not be explored further.

(4) Claim against Commissioner of Corrective Services 40The first matter raised in this complaint was that the applicant's appeal had been delayed by the failure of the prison authorities to provide him with adequate access to his legal papers, which were said to be in excess of 40,000 pages, in addition to computer files. His statement of issues asserted (paragraph 3) that "for appointed counsel to consider the grounds of possible appeal required me to review in detail all of the material and comprehensively instruct counsel". 41The second matter raised in respect of the conditions of his imprisonment, concerned the need to comply with High Court rules requiring applications to be typed and filed with multiple copies, "in person" in the Registry. He asserted that because he was unable to comply with those conditions he had been prevented from exercising his right of access to the High Court for the purposes of a special leave application. 42Before Handley AJA it appears that the applicant's primary claim was that the Commissioner had given a "binding undertaking" to the Court to rectify certain unlawful conditions of imprisonment, in habeas corpus proceedings brought against the Commissioner in the Supreme Court. Handley AJA referred to the judgments in each proceeding, but noted there was no reference to any enforceable undertaking. His Honour further noted that if it were a failure to comply with an undertaking which underlay the principal complaint of the applicant, the appropriate relief was not be found in a claim for compensation. 43Handley AJA also referred to the statutory protective provision in respect of prison officers. The provision referred to at [27] was s 46(1) of the Correctional Centres Act 1952 (NSW). That provision had, however, been repealed on 3 April 2000, the current provision being s 263 of the Crimes (Administration of Sentences) Act 1999 (NSW) which expressly refers to "omissions" as well as actions. 44While it is true that s 263 might protect the Commissioner because the acts or omissions relied upon were not shown to be otherwise than "done ... in good faith in the administration or execution of this Act", there would nevertheless be an arguable case of liability on the part of the State for any otherwise tortious conduct on the part of the Commissioner: Vicarious Liability Act, ss 8 and 10. 45The real problem in the present case is that the applicant has failed to identify any cause of action which would give rise to a claim in damages, or any prima facie ground for such a claim. For these reasons, leave to appeal should be refused.

Conclusions 46It follows from these reasons that leave to appeal from the refusal to grant permission to institute the four sets of proceedings should be refused. Pursuant to the 1981 Act, the applicant was not entitled to appear in person without leave of the Court, nor were any of the prospective respondents entitled to appear or be represented without leave. The applicant did seek leave to appear, which was granted during the hearing.. 47The Legal Aid Commission, apparently at the invitation of the Registrar, sought leave to appeal and opposed the application. It filed brief written submissions in support of its application, but did not seek costs. In the circumstances, there is no need to address the submissions nor to rule upon its application for leave to appear, as the Commission did not require that the leave application be dealt with in open court. Nor did it seek costs. 48Accordingly, the following orders should be made: (1) In respect of each of the four proceedings, the applicant be granted leave to appear in person. (2) In respect of each of the four proceedings the subject of the orders refusing leave to commence proceedings made by RS Hulme J on 9 March 2010, refuse leave to appeal.

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: 25 July 2012

Correctional Centres Act 1952(NSW)

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