I am dealing with an application brought by the plaintiff for a referral under Rule 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) to a legal practitioner to assist with her claim currently pending in the Common Law Division. The case is well advanced. It was commenced by the filing of a statement of claim on 24 February 2023 and has been the subject of an application for summary dismissal by the State of New South Wales, who is the defendant in the matter, which was originally filed on 25 May 2023. That application for summary dismissal was heard and determined by Chen J on 14 August 2023; see Lin v State of New South Wales [2023] NSWSC 953.
I do not propose to summarise the nature of the plaintiff's purported cause of action. She has since the inception of the proceedings, no doubt, I would infer, in response to correspondence from the defendant, attempted on a number of occasions to amend her Statement of Claim to bring it into conformity with the rules and to plead the material facts underpinning a claim recognised by law.
Having regard to Chen J's decision, her own attempts in that regard have been, with respect, unsuccessful. A cause of action under s 22 of the Mental Health Act 2007 was held by his Honour to be simply misconceived. A claim brought under the Freedom of Information Act 1989 (NSW) was likewise misconceived, given that legislation has been repealed and replaced by the Government Information (Public Access) Act 2009 (NSW), which came into effect on 1 July 2010. She also seeks to advance what may be a claim for damages referring to "tort" or "malpractice" and this is referred to by Chen J commencing at paragraph 45 of his Judgment.
The gravamen of the plaintiff's complaint, if I can use that neutral expression, relates to the matters which have been pleaded in her Amended Statement of Claim at paragraph 12 and 13. That is all set out, as I have said, commencing at paragraph 45 of his Honour's Judgment. Essentially as I understand it and without derogating in any way from the complexity or otherwise that might attend the formulation of the claim, when police were called to her home on a certain occasion in 2015 and a report was prepared in the normal course of their operations following the attendance, they recorded their impression, and I need to restate it here, although it is distressing to Ms Lin, that Ms Lin was suffering from schizophrenia. Ms Lin is adamant that she does not now and never has suffered from such a condition and the source of her complaint, as I have said, is her attempts to have the record corrected. She says that the uncorrected record and her knowledge of it has resulted "in enormous long term psychological and physical suffering to the plaintiff". There is no evidence, I should interpolate, that she has suffered any recognisable psychiatric disease by reason of that matter.
I have my doubts about whether a claim in tort for damages is the right way of seeking redress for what may be an erroneous record made by police. While no claim is presently maintained for defamation, any such claim would have been well and truly out of time when proceedings were commenced in 2023, in my own judgment, others may differ, the decision of the High Court of Australia in Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, would powerfully stand in the way of any such contention.
Returning then to Chen J's judgment. His Honour did not accede to the application for summary dismissal under Rule 13.4. Rather his Honour decided to strike out the statement of claim in its various forms and iterations pursuant to Rule 14.28 and to provide the opportunity for the plaintiff to replead her cause of action in tort or malpractice if she could. However, his Honour put important limits on the plaintiff's right to do that. First, he said that any further application for leave to file an Amended Statement of Claim should be made by motion to be filed and served by 11 September 2023, which is Monday. His Honour also, importantly for present purposes, ordered that in the event that the plaintiff failed to file such a motion by 11 September, that the proceedings are summarily dismissed under Rule 13.4. That self-executing or guillotine order, if it comes into effect on Monday, will have the legal effect of finalising adversely to her the applicant's case, if she has one, in relation to the matter of which she complains. Although an application for summary dismissal is an interlocutory application, the order, if made, has final legal effect and the plaintiff would be estopped from agitating her claim again.
The plaintiff told me that she has prepared a further draft but she is reluctant to make an application in accordance with Chen J's orders because, as she said, that is the whole point of seeking a pro bono reference, so she can get some advice about whether her document is sufficient. I can understand on one level the sense of that.
As I have tried to indicate already, I have serious doubts about whether a claim in tort lies at all. One is reluctant to refer matters out to the profession needlessly given that the profession gives of their time on pro bono referrals as volunteers and that is a limited resource available to the Court. The Court should be parsimonious in my view in expending that resource lest it proves to be unavailable in cases which may have real and obvious merit but the litigant is simply unable to obtain legal assistance otherwise for whatever reason.
While I have my doubts about the viability of any claim in tort, it may be that there is some administrative means, not involving court proceedings, which may enable Ms Lin to have the record corrected as she sees it. While that would not involve any payment of compensation, it may at least assuage her mental agitation because of what she sees as the injustice of the erroneous record.
She has not been previously referred out for legal assistance, and although her affidavit is terse, to say the least, in written submissions she has informed me, and I accept, that the Registrar suggested she think about applying for a referral back in April 2023. She does not really explain why she has not taken that step in the meantime. She says she has actively tried to engage a solicitor without success and indeed she refers to having approached the Marsdens Law Group back in August 2022 because she believed that they had been involved in what she regarded as a like case. They did not take on her case, apparently.
She has no legal training and she is a retiree in receipt of an age pension. It is unnecessary for me to specify the amount of that pension. It is sufficient that I acknowledge that I accept her submission that her financial resources are very limited.
Despite my misgivings and my concern not to over tax the limited resources available to the Court, I am prepared to refer the matter for pro bono assistance on the limited basis that if a barrister is prepared to accept the referral, that he or she consider Chen J's judgment, the new draft that the plaintiff wishes to propound and proffers advice about whether the claim has sufficient merit to justify the filing of a Proposed Amended Statement of Claim. It would be helpful if a barrister was able to proffer some advice about whether there is an administrative route by which the record could be corrected, if that is the right way of putting it.
Mr, Senior, who appeared for the State at my request, for which I am grateful, has informed me that his instructions are that if I were inclined to make the referral, the State would consent to an extension of the time for compliance with Chen J's order (4) and to postpone the effect of order (6).
By consent:
1. Amend order (4) made by Chen J on 14 August 2023 by extending the time for compliance from 11 September 2023 to 10 November 2023.
2. Amend order (5) made by Chen J by vacating the listing before the Common Law Registrar on 15 September 2022 and re-listing the matter for mention before the Registrar on Monday, 13 November 2023 at 9 am or such other time as the Registrar may allocate.
3. Amend order (6) pronounced by Chen J on 14 August 2023 by deleting the date 11 September 2023 and substituting the date 10 November 2023.
4. Under Rule 7.36 Uniform Civil Procedure Rules 2005 (NSW), refer Ms Lin to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance on the limited basis specified in my reasons today.
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Decision last updated: 08 September 2023