Nash v State of NSW

The claims

1. Returning to the present proceeding, in his pleading Mr Nash cited his arrest on 19 November 2015 which, he alleged had no lawful justification and wrongful imprisonment, constituted by his detention at the Wyong Police Station. He claims he was injured by both acts. No particulars appear in the Statement of Claim (at least) to articulate why it was said that the arrest was unlawful or the 'imprisonment' wrongful. However, in his recent affidavit, Mr Nash set out his understanding that the arrest was unlawful since the charges on 19 November 2015 were allegedly laid contrary to s 338 of the Crimes Act 1900 (NSW). He also argued that other issues associated with the circumstances of his arrest - including (without limitation) an alleged denial by the police of Mr Nash having the opportunity to call the client who he could not meet up with, a surrounding media presence depicting that arrest and denial of the opportunity to him to voluntarily attend the police station - affected the legality of the arrest.
2. Mr Nash then pleaded, as an alternative cause of action, that of malicious prosecution. To sustain the element to that action of a proceeding being commenced without reasonable and proper cause, in summary, Mr Nash cited the withdrawal and (what he alleges) the dismissal of the charges on 16 August 2016. He alleges that the prosecution was commenced without the necessary consent of either the Attorney General, the "Court" or the Director of Public Prosecutions. He alleges that the evidence which the police obtained did not justify the arrests in November 2015. He alleges that the police was motivated by its liability to pay him damages in 2015 (and especially adverse findings of Constable Hicks made in the earlier civil proceeding); and he alleges that by its prosecution of the criminal proceeding, the police intended to brand Mr Nash as a 'criminal in the public eye'. These matters are also relied upon to sustain the additional element of malice. Mr Nash claims damages for these torts, including aggravated and exemplary damages.
3. The State denies liability. Amongst other things, the State admitted that although a Court Attendance Notice (CAN) was withdrawn in 2016, it was replaced by an ex officio indictment; which relied upon the same substratum of facts founding the CAN. Accordingly, the State contends that it could not be said that the act of withdrawing the CAN amounted to a termination of the prosecution.

The present applications

1. The hearing of this proceeding is set to commence on 21 February 2022 in the District Court at Gosford, before me.
2. On or about 14 November 2021, Mr Nash sent a handwritten letter to the Registrar of the Court in Gosford. At the time, at the time of sending that letter, he was an inmate in a correctional facility. In the letter, he informally indicated his wish to apply for a vacation of this hearing. Mr Nash's letter appears to have been received in the Gosford Court House on 22 November 2021. Apparently, a Registrar in the Gosford Courthouse emailed Mr Nash's letter to Ms Hayley Weston, the secretary to Mr Westhoff, solicitor for the State, on 7 December 2021.
3. For reasons not apparent, but clearly without fault on the part of Mr Nash, that handwritten letter did not make its way to me (through my Associate), as the Judge administering the February 2022 civil sittings in Gosford, until 12 January 2022, during the Court's summer vacation. In circumstances where the State indicated its opposition to the vacation of the hearing, upon my return from leave, it became necessary to list the proceeding for mention on 3 February 2022.
4. Shortly before that mention, through email to my Associate, I received an unsealed and unsigned notice of motion, with an unsworn/non-affirmed affidavit from Mr Nash in support of the motion. By that motion, Mr Nash applied for an order by the Court, pursuant to rule 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) to refer to the registrar "for the purpose of considering pro bono representation" in the proceeding. Whilst a signed copy of the motion and affidavit apparently remains in transit, I granted leave to Mr Nash to have the unsealed and unsigned copy of the motion filed in Court.
5. At the mention on 3 February 2022, I made directions for the efficient preparation of Mr Nash's applications for hearing on 10 February 2022.
6. Amongst other directions made on 3 February 2022, Mr Nash was relevantly directed to serve evidence in reply to the State's evidence by 12pm 8 February 2022 and a short outline of written submissions (not exceeding 5 pages). That direction was not complied with: no further evidence in reply was served and no outline of submissions was received from him. After that deadline passed, my Associate sent a further email to Ms Nash inquiring whether evidence in reply and an outline of submissions would be sent on Mr Nash's behalf. I am informed that the response was that Mr Nash had sent a three page letter, by post, from the correctional centre where he is an inmate. Regrettably, this letter had not arrived in time for the hearing of the application. At the hearing of these applications, I gave Mr Nash the opportunity to indicate the gist of what he had written in that letter.
7. The State's barrister, Mr Coffey, supplied written submissions dated 9 February 2022 in accordance with the directions.
8. In reading his supporting affidavit, it appeared that Mr Nash is asking the Court to make a reference to the registrar not only to secure his representation in this proceeding, but also his representation in the Appeal Proceeding and the Equity Proceeding.
9. Mr Nash' motion did not specify an application for adjournment. That, however, had been informally telegraphed in his letter to the Court dated 14 November 2021.
10. As indicated, in support of that motion, Mr Nash relies upon his letter to the Court (Exhibit A) and an unsigned and unsworn prepared in February 2022 (Exhibit B).
11. In opposing the motion, the State relies upon the affidavit of Lachlan Westhoff dated 4 February 2022 (Exhibit 1) and an exhibit to that affidavit (Exhibit 2). Included within that exhibit was a copy of an affidavit (of Mr Clohesy, with an exhibit) relied upon by the State at an interlocutory hearing before Wilson SC DCJ in September 2020. Amongst other things, Mr Clohesy's affidavit had commented upon Detective Inspector Little's desire to have the proceeding resolved as soon as possible and detailed some of the adverse repercussions to him since the proceeding was commenced by Mr Nash in November 2018; including an ancillary disciplinary complaint against him, suspension of duties and the impact of the proceeding upon his operational duties; which, in turn, affected the police. The Exhibit to Mr Westhoff's affidavit also included a transcript of Mr Nash's evidence in the jury trial on 30 June and 1 July 2020.
12. In my consideration of the applications, I have had regard to this evidence. I have also had regard to information from the Court file concerning directions and orders made in the proceeding to date. Further, I have referred to the (unpublished) sentencing remarks of Huggett DCJ on 26 November 2021. (In the last respect, I arranged for my Associate to supply a copy of those remarks to the parties in advance of the hearing in case they wanted to say something about them).
13. Because of the importance of disposing of the applications in time to enable the parties to know where they stand as soon as possible, that is to say, on the day of the hearing of the application itself, the day before oral argument, I arranged for my Associate to convey to the parties the Court's expectation that, should it be necessary, time limits would be imposed on oral argument (see MFI 1).
14. Aside from the background giving rise to the litigation, it is now necessary, for the purposes of placing the applications in their present context, to trace in some further detail the procedural progress of this particular proceeding since it began on 14 November 2018.

Procedural history

1. It was apparent, from an early point in the proceeding, that, from Mr Nash's perspective, the hearing of the proceeding should not occur whilst the criminal proceeding against him was on foot. In February 2019, his solicitor requested the State's consent to adjourn the proceeding pending resolution of the criminal proceeding. Mr Nash's attitude has been to seek a hearing of this proceeding, "with priority", after the completion of the criminal proceeding. This was an order Mr Nash sought, and was granted, in a notice of motion filed on his behalf on 2 September 2020.
2. It has never previously been suggested, by either party, however, that this proceeding should await determination of the Appeal proceeding or the Equity proceeding, or, for that matter, after the exhaustion of appellate rights Mr Nash has in connection with the criminal proceeding.
3. There have been serial listings of this matter for hearing in sittings at the District Court in Gosford. But the fixtures all needed to be vacated because of the delay in the prosecution of the criminal proceeding against Mr Nash.
4. On 13 November 2020, Wilson SC DCJ granted Mr Nash's application for a stay. Orders 1 and 2 were as follows: "1. I order a stay of these Proceedings pending the determination of the outstanding criminal proceedings set for trial on 17 May 2020 (emphasis added). 2. I list the Proceedings to commence on Monday 21 February 2022 in the sittings of the District Court at Gosford."
5. Mr Nash was legally represented in this proceeding from its commencement in November 2018 until August 2021. His first firm of solicitors (Aubrey Brown) ceased to act for him from 13 November 2020. His second firm of solicitors (Nash Allen Williams Wotton) ceased to act from 16 August 2021. The latter cessation of legal representation in this proceeding occurred after the jury had returned verdicts of guilt in the criminal proceeding.
6. In his affidavit, Mr Nash deposed that he received representation in the criminal proceeding at the trial in May 2021. He has been in custody (bail being refused) since the jury returned the guilty verdicts. Other aspects of his affidavit will be referred to when I address the points he raises in favour of the grant of the applications, which I will now come to.

THE PARTIES' POSITIONS ON THE APPLICATION FOR REFERRAL

Mr Nash's handwritten letter of 14 November 2021 (Ex A)

1. Mr Nash's letter referred to the pendency of the Equity proceeding and Appeal proceeding alluded to earlier; the common object of which was the State's attempt to have the judgment of Gibson DCJ from August 2015 set aside. For both of these other proceedings, and this proceeding, Mr Nash asserted that he had requested pro bono assistance from the Bar Association.
2. When he wrote his letter, Mr Nash said that he did not wish to conduct all of his cases whilst in custody. He cited that he had no access to the internet, and only limited capacity to communicate with persons outside of the correctional facility. He claimed he had limited time to prepare his case. Generally, he cited COVID-19 restrictions within the custodial setting he had experienced throughout 2021, although he did not specifically identify how this presented difficulty. Read in context, it appears that the reference to these restrictions was somehow said to relate to his access to the internet and/or communications with the outside world. He postulated that the position might be different after the sentence had been imposed.
3. Specifically, he asked that the matter be heard for mention only during the February 2022 sittings by which time, he hoped, he may receive pro bono representation.
4. The letter was prepared in November 2021. In relation to the request he made of the Bar Association, Mr Nash did not say when he had made his request or whether or when the Bar Association responded to it. That position has since changed, as noted.
5. In his letter, Mr Nash foreshadowed that he anticipated receiving a sentence in late November 2021. On 26 November 2021, he was sentenced by this Court (Huggett DCJ) to an aggregate term of imprisonment (relating to two counts of perjury) of 5 years, 6 months to commence on 31 May 2021 (the date the jury returned the guilty verdicts) and expiring on 30 November 2026 with a non-parole period of 3 years, 6 months. The offender is first eligible for parole on 30 November 2024.

Mr Nash's unsworn affidavit (Ex B)

1. Mr Nash deposed to being represented at his trial by legal aid (in his criminal proceeding) since his funds had run out. He deposed to being "concerned" about the conduct of his trial and understood that his lawyers had lodged a notice of intention to appeal the proceedings (which has apparently now occurred) and that he was awaiting the outcome of an application for legal aid in relation such appeal.
2. Amongst other things, in his affidavit, Mr Nash: 1. indicated that he had expended approximately $800,000 in respect to his defence of the criminal proceeding; which involved his selling his only real estate, the family home; 2. estimated that, in combination with the sums for the judgments for damages (for nearly $125,000) and costs in the earlier District Court proceeding, the State has a current liability to him in the order of $375,000 or $450,000; although this asset in his favour is potentially imperilled by the Appeal proceeding and/or the Equity proceeding; 3. deposed to not having any assets or other means to obtain legal assistance, other than by the pro bono scheme. 4. reiterated the points raised in his 14 November 2021 letter, concerning his inability to access a computer or the internet, limited opportunity to communicate with the outside world and limited time to prepare his defence; 5. deposed to having no assets and asserted that he was therefore unable to afford legal representation: his money had been dissipated in the defence of the criminal proceeding; 6. deposed to his understanding that this proceeding (along with the Appeal proceeding and Equity proceeding) would follow the criminal proceedings "outcome".

Other evidentiary matters

1. At the hearing of the applications, Mr Nash mentioned certain other matters.
2. He indicated that a person "with a legal background" had assisted him to prepare his recent affidavit.
3. Mr Nash referred to very recent (as in last Friday, 4 February 2022) efforts to engage a solicitor from Manly and his forwarding on documents to that solicitor. He considered, on the basis of communications with that solicitor, that he had prospects of obtaining the solicitor to assist with the hearing (though he did not specify what form of assistance that may take).
4. He also said that he learnt from November 2021 that the Bar Association had rejected the application he made directly to that Association for pro bono representation. According to Mr Nash, the explanation that he had been given was simply based upon a lack of availability of barristers.
5. He also explained that in the period since August 2021, when he became unrepresented, he has tried to secure legal representation, but there were difficulties in his preparing his case. He was having difficulty coming to grips with his plight as an inmate. He had been moved from one correctional centre to another. The summer vacation intruded.
6. Nevertheless, when asked by me about the scope of the case, should it proceed, Mr Nash said that, subject to a qualification, he would be the sole witness in his case. The qualification was that he may wish to call persons from the media who he says witnessed the impugned arrest in November 2015.
7. In response to this last point, Mr Coffey, very fairly, alerted the Court to an indication previously supplied by Mr Nash' former Counsel that up to 3 witnesses might be called in Mr Nash' case. Mr Nash did not identify who they were or whether that continued to represent his intention. Mr Coffey pointed out, however, that Mr Nash was misconceived in thinking that members of the media witnessed the arrest: the persons who filmed the arrest were not media personnel but rather police employees.
8. Mr Nash also said he expected to be able to have access to documentation obtained through the services of his former legal practitioners before the hearing.

Extent of power of referral

1. Mr Nash argued in his affidavit that legal representation was necessary.
2. When asked who he sought to represent him, Mr Nash said that it would include a barrister but, depending upon the outcome of his discussions with the Manly solicitor, he would contingently seek representation from a solicitor as well.
3. It appears that Mr Nash believes that this Court is empowered to refer him the registrar for referral to a barrister or solicitor for representation not only in this Court, but also in the proceedings in the Court of Appeal and the Equity Division of the Supreme Court. I have significant doubt that the power in r 7.36 extends that broadly. The State says it does not. Even if such power existed, it would not in my view, be appropriate for a Judge of the District Court, let alone a Registrar, to evaluate the complexity of proceedings in other courts, especially an appellate court. Mr Coffey informs me that the Appeal proceeding is in for mention before the Registrar next week, on 16 February 2022. The applicant has ample opportunity to make a referral application in that proceeding and in the Equity proceeding separately even if I refrain from considering the propriety of referrals in those respective proceedings. I will therefore confine my attention to whether an order for referral should be made in relation to the proceeding in this Court.
4. Mr Nash argues that the proceeding in this Court is 'complex'. He argues that his claim centres around the contention that the police did not have the necessary authority to arrest and charge him on 19 November 2015 under the requirements of s 338 of the Crimes Act 1900 (NSW), which he characterises as a complex issue. In his affidavit, Mr Nash alluded to observations made by Barrett AJA, when his Honour dealt with interlocutory applications in the Appeal proceeding. In State of NSW v Nash [2016] NSWCA 98, a decision delivered on 6 May 2016, in the context of deciding an evidentiary question relating to whether the State could add to its grounds of appeal against the decision of Gibson DCJ, Barrett AJA (at [31]) suggested that Det Sgt Little (as he then was) did not have the authority to initiate the prosecution (for perjury) in the Court Attendance Notice (and Facts Sheet) so that it appeared to his Honour that there was no prosecution for perjury according to law.
5. Mr Nash referred to other circumstances which he said affected the lawfulness of the arrest, which I briefly alluded to earlier in these reasons.

Mr Nash's oral submissions

1. Beyond that which was contained in his affidavit and the additional evidentiary matters indicated, Mr Nash did not substantially add to his argument for referral.

The State's position

1. By its written submissions, Counsel for the State, Mr Coffey indicated that the State was formally neutral about Mr Nash' referral application per se, but the State's position is that the process of effectuating that representation should not provide the basis to vacate the hearing.
2. Mr Coffey cited that there were a range of permutations should the referral be made. It was possible that the Manly solicitor, independently of the process of referral, might represent Mr Nash without the involvement of a barrister. It was possible that any barrister on the Pro Bono Panel would condition his or her representation upon being instructed by another solicitor (from the Pro Bono Panel). It was possible that a barrister might take a direct brief.
3. Mr Coffey also noted, in effect, that it might be speculative to think that a barrister might agree to take on a case pro bono as a result of the referral process when Mr Nash's own approach last year was rejected in November.
4. Given all of these possibilities, Mr Coffey submitted that if the Court was inclined to order a referral, it should impose, as a condition, that it should not affect the continuation of the matter to proceed for hearing on 21 February 2022.

RELEVANT CONSIDERATIONS APPLICABLE TO THE APPLICATIONS

1. It seems to me that the most appropriate course is for me to consider the application for referral first before deciding whether the matter should be adjourned.
2. But before I do, I will refer first, to some general considerations applicable to both applications before addressing matters specifically affecting the application for referral.

General considerations

1. The powers for the referral and adjournment are exercisable with reference to the matters set out in s 58(1)(a)(ii) of the Civil Procedure Act 2005 (NSW) (the 'CP Act')) and, in the case of the adjournment application, s 66 of the CP Act, with reference to the 'dictates of justice'. That expression is given statutory form in s 58(2), with reference to certain mandatory considerations (being ss 56 and 57 of the CP Act) and a non-exhaustive list of discretionary considerations (being s 58(2)(b) of the CP Act).
2. The mandatory considerations concern the application of the 'overriding purpose' of the CP Act, being the 'just, quick and cheap resolution of the real issues' (s 56), as elaborated by the matters referred to in s 57, including: the just determination of the proceeding; the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceeding, and all other proceedings in the court, at an affordable cost.
3. The non-exhaustive discretionary considerations include: the degree of difficulty or complexity to which the issues give rise; the degree of expedition which the parties have approached the proceeding, including the degree to which they have been timely in their interlocutory activities; the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the parties' control; the degree to which the parties have fulfilled their duties under s 56(3); the use that any party has made, or could have made, of any opportunity available to it during the course of proceedings; and the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. As indicated, the Court may consider any other relevant matter.
4. Section 59 of the CP Act requires the Court, when considering procedural questions, to have in mind the 'elimination of delay' and s 60 of the CP Act requires the Court to have in mind the need to resolve proceedings in a cost-effective way proportionate to the importance and complexity of the subject matter in dispute.

Specific considerations affecting the referral

1. In the case of the power of referral under r 7.36, the Court must be satisfied that it is "in the interests of the administration of justice" for the referral to occur. That consideration is structured by reference to some express discretionary considerations, being: (a) the means of the litigant applying for the referral; (b) Mr Nash's capacity to obtain legal assistance outside the scheme; (c) the nature and complexity of the proceedings and (d) any other matter that the Court considers appropriately. I take point (d) to embrace the matters set out in ss 56-57, 59-60 and also 58(2)(b) of the CP Act.

DETERMINATION OF THE APPLICATION FOR REFERRAL

1. I find, for the purposes of the application, that Mr Nash presently does not have the means to fund a barrister to present his case at the hearing commencing on 21 February. I am also prepared to accept, for the purpose of the application, that he does not have the capacity to obtain legal assistance, in the sense of representation at the hearing, outside of the scheme, at least for a barrister. It is uncertain whether the Manly Solicitor, if he agreed to act for Mr Nash at all, would be willing to appears as an advocate for him.
2. I am prepared to accept, further, that there is some complexity in terms of the subject matter of the proceeding. It is plainly apparent from the pleadings and argument on the application that Mr Nash wishes to advance a point of law regarding the validity of his arrest on 19 November 2015, contending that it contravened the Crimes Act and from which he proposes to argue that all else that followed, including the prosecution against him, was infected by that contravention.
3. I accept, further, that a self-represented litigant might naturally be at a disadvantage in debating the legality of the arrest against the State. The other matters referred to by Mr Nash, concerning the circumstances of his being arrested raise factual questions, but I would not regard those as being unduly complex.
4. Moreover I accept the general desirability for parties to be represented at final hearings by legal practitioners, who are officers of the Court, in litigation; especially when opposed to the State, because of the imbalance of resources available to each litigant. Further, legal representation of both sides of the record not only benefits each party, but it also assists the Court with the efficient dispatch of the hearing. So far the matters I have adverted to point in favour of the application for referral.
5. The basic problem is that, without adequate explanation, the application has been brought very late, and would have the effect that, if acceded to, there are too many uncertainties, in terms of the likelihood of Mr Nash receiving adequate legal representation as to throw into doubt whether the case could proceed on 21 February. I referred to these uncertainties earlier. This includes the fact that Mr Nash was himself unable to secure representation directly from the Bar Association last year. There are multiple reasons to conceive why, with less than 7 working days prior to the hearing, a barrister may not be willing or able to appear for Mr Nash. In terms simply of availability, it is speculative to think that his prospects might have improved since then. Even if the inquiry is channelled through the Registrar; rather than directly through the Bar Association, I have significant doubt that between now and 21 February 2022, the process of referral could be completed in a way that, on the assumption that a barrister could be briefed, he or she would have sufficient time to prepare for the hearing. Aside from getting up to speed on the paperwork, the barrister and/or any solicitor instructing the barrister, would undoubtedly need to confer, at length, with Mr Nash. As an indication of difficulty, Mr Nash pointed to the fact that a week has nearly gone by since he initiated contact with the Manly solicitor, the willingness and ability of that practitioner to act for him has not been confirmed. Mr Nash himself commented upon the limited contact he is allowed. Perhaps he may receive some exceptional and preferential treatment from those who supervise him in custody in this respect, but it remains difficult. As if there were not difficulties enough, there is also currently all pervasive concern about the Pandemic; with its tendency to impede communications.
6. Although he has been formally unrepresented in this proceeding since August 2021, Mr Nash disclosed to the Court that someone with a legal background had helped him prepare his affidavit (Ex B) on the motion. He did not say whether or not that same person could not assist him to supply legal assistance, short of actual representation, say, to assist Mr Nash to develop arguments on legal issues.
7. Further, although I accept that Mr Nash would be disadvantaged if he had to appear self-represented at the hearing, I am not persuaded that, if required to present his case himself, he would be denied the opportunity of obtaining for himself a fair trial.
8. This is not a criminal proceeding, but a civil proceeding. It is a common place for parties to represent themselves in civil litigation in this Court; often because of an inability to pay lawyers. Parties in civil litigation have no right to receive representation in civil litigation, which partly explains why a rule like r 7.36 exists.
9. Although I accept that there is an aspect of legal complexity to the arguments in the case, as I presently understand them, Mr Nash has been represented for most of the proceeding, from November 2018 to August 2021. There is no information now before the Court as to why those lawyers ceased to act for Mr Nash when they did and it would be inappropriate for the Court to speculate. Be that as it may, it is inconceivable that the lawyers who commenced the proceeding in November 2018 did so without Mr Nash's informed instructions. By 'informed', I mean that he would likely have received advice about his rights; which, itself, would have been informed by reference to an understanding of those rights; presumably assisted by the applicable legal research into the principles affecting them. I also infer that he would have received information and advice from his former legal representation after the State had filed its defence and, in particular, the State's pleaded position regarding the effect of the withdrawal of charges in 2016 and substitution with an ex officio indictment featuring similar, though distinct, charges. Further, I would not infer that Mr Nash would have instructed his solicitors to proceed with the action in the absence of an understanding on his part that he had a reasonably arguable prospect of overcoming the State's pleaded contentions in its Defence.
10. Mr Nash does not present to the Court as someone who has only just commenced a proceeding or had a proceeding commenced against him and is requiring of legal assistance because of any ignorance about his rights. He is someone who instructed a firm to commence a proceeding on his behalf a long time ago, knowing the allegations he wanted to raise. There are some similarities with the earlier District Court proceeding, not least in relation to the causes of action he wishes to run. He has also been on notice of the State's position, defending the current proceeding, since 22 May 2019.
11. Contrary to what he asserts in his affidavit, I do not agree that Mr Nash has had limited time to prepare his 'defence'. That is a misnomer. The question is the adequacy of time to present a claim. At any rate, in the three years in which the proceeding has 'progressed', for most of which period he has been represented, Mr Nash has had ample time to take the steps to prepare his case, in the sense of obtaining and collating evidence. What he seeks is someone else to present his case at the hearing. Doubtless, a barrister has expertise in advocacy that is lacking in a lay person. But Mr Nash is a person who was described in the sentencing remarks as being a "mature and successful businessman". He is now in his early 60s with an extensive background in commercial real estate. He is obviously intelligent. He speaks and writes in English. He has no hearing difficulty. He was cross-examined extensively in two criminal trials. He impressed Gibson DCJ sufficiently as a witness in the earlier District Court proceeding in order for him to succeed in recovering judgment. He answered, very directly if I may say so, questions I raised with him earlier today. Although he is not a lawyer, he has, as indicated, had extensive access to a lawyer for most of the proceeding. Further, it is not unknown for self-represented litigants to prevail over their opponents when represented by legal practitioners of high quality [2] .
12. I note further, without intending to minimise the complexity of the legal points which Mr Nash wishes to raise, that there is some general correspondence between the legal point that he wishes to raise in this proceeding and that which his lawyers raised for him in the earlier District Court proceeding decided by Gibson DCJ. The same causes of action are run. In this respect, it was notable in the interlocutory decision of Barrett AJA in the Appeal proceeding, his Honour considered legal points raised about the validity of the arrests both in October 2011 and November 2015 more or less in tandem. Challenging though it might be for a litigant in Mr Nash's position, I anticipate that with his intelligence and maturity, he has had fair opportunity to equip himself to present his case at the hearing. I will develop this point further below.
13. It is apparent, already, that Mr Nash has closely considered the legal point that he wishes to run, and been advised about it. I am not persuaded that there is an insuperable difficulty, in the circumstances I have noted, in him articulating it at the hearing himself.
14. Thirdly, Mr Nash has been unrepresented in this proceeding since August 2021. By that time, he had been found guilty of the perjury charges. He was on notice of a hearing date of this proceeding 5 months down the line from the point that the jury verdicts were rendered. He found out he could not obtain representation from the Bar Association from November 2021. It took him until 3 weeks before a hearing that had been fixed 15 months ago to bring the present application. If he had brought his application sooner, shortly after the cessation of representation in August 2021, the more likely it is that, if it was acceded to, there would have been much more time than there currently is for a barrister on the Pro Bono Panel to accept a brief to appear for him. In Douglas v Land & Housing Corp (NSW) [2008] NSWCA 315 Tobias JA (Bell JA and Gyles JA agreeing) observed (at [36]) that there are cases where an application for referral is more likely to be made at an early stage of proceeding in which a litigant in person is involved. Mr Nash was not a litigant in person when the proceeding commenced. Nevertheless, the observation makes the point that applications of this kind should be brought sooner rather than later. Without adequate explanation, Mr Nash delayed this application for a substantial period of time; which deprived him and the Court time to facilitate an unhurried process of referral to occur, without jeopardising the commencement date of the specially fixed hearing.
15. I do not consider that an adequate solution is to accede to the application for referral conditionally on the basis that it would not affect the commencement of the hearing. What good would that do? It would not prevent a barrister and/or a solicitor who, ex hypothesi, agreed to act for Mr Nash, coming to the Court on 21 February and arguing that, with all best endeavours being exercised, he or she, or them was simply not in a position to fairly present Mr Nash' case. It would be a hard thing to say to Mr Nash that his opportunity to obtain representation was therefore forfeited.
16. Acceding to the application to either application will assuredly not conduce to the quick resolution or timely disposal of the current dispute. It has not been shown, and I consider that there is real doubt, that if the application for referral was granted, a barrister in the Pro Bono Panel would accept a brief to appear and have adequate time to conduct a case beginning on 21 February 2022. In this regard, there is a real concern about the prospect of securing representation even if it was offered. As was commented upon extra-curially by Justice White, the pro bono panel scheme depends, for its efficacy, upon the goodwill of the practitioners; which should not be abused; which might occur, to take one example, if a referral is made of a litigant who does not accept advice [3] .
17. The bare circumstance that Mr Nash is incarcerated is not as significant as what might appear, at first blush. The hearing of this matter will occur by Audio-Visual Link. In a functional sense, putting to one side disadvantages in terms of ease of communication and internet contact that I will return to later in these reasons, he is in a not dissimilar position to an unrepresented litigant presenting his or her case from home.
18. I am not persuaded in the circumstances that it is in the interests of the administration of justice to refer Mr Nash to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance in the form of representation of him at the hearing commencing on 21 February.

DETERMINING THE ADJOURNMENT APPLICATION

1. On the contingency that he failed with his application for referral, Mr Nash pressed his request, made in his 22 November 2021 letter, for a vacation of the hearing on 21 February 2022 in any event.
2. Mr Nash did not descend to detail as to how he might be prejudiced in presenting his case even if he was incarcerated. The hearing will proceed by Audio-Visual Link, in accordance with the current practice of the Court to respond to the Pandemic. Mr Nash would not be appearing in person in any event. It has not been shown that this AVL facility is unavailable in the correctional facility where Mr Nash resides. It was utilised at the mention on 3 February 2022 and again in today's hearing of the applications.
3. Mr Nash referred to constraints in his capacity to communicate with 'the outside world'. But as I have said, he did not refer, with any specificity, to who he might need to communicate with to present his case. He accepted that his case would largely revolve around his own evidence. Although it seems that his earlier counsel had identified more than one witness (other than Mr Nash), the identity of those witnesses was not disclosed. To the extent that Mr Nash believes he might be able to call witnesses from the media, he did not identify names and he said nothing, when given the opportunity to reply to Mr Coffey's submissions, to argue against Mr Coffey's point that there was no media in attendance at the time of the arrest.
4. Mr Nash has been in custody since 31 May 2021 when the jury found him guilty of the two offences. The matter was fixed for hearing in February 2022 as far back as 13 November 2020, so as to accommodate the criminal proceeding against Mr Nash. Although it could not fairly be said that the application to vacate was brought right on the eve of the hearing, it was still an application that was made late, in the context of the date when the matter was set down for trial. Mr Nash, who is experienced in civil proceedings in this Court and other courts, should be taken to know of the importance of prompt applications to vacate (reflected, for example, in paragraph 15 of the Court's Practice Note DC (Civil) No. 1). After all, this civil proceeding has featured many previous applications to vacate the hearing.
5. Mr Nash did not bring this application to vacate the hearing date promptly after the jury's verdicts in May 2021, when he went into custody and it was on the cards that he would receive a custodial sentence. His informal vacation application was not made until virtually 6 months after he went into custody and 3 months after his earlier legal representation had ceased notwithstanding his awareness of the scheduled hearing date for a considerable period of time. His delay in bringing the application to vacate, in all the circumstances, weighs heavily against his application.
6. I do not accept that he has had limited time to prepare his case for trial of this proceeding, even if he has other proceedings on foot.
7. Mr Nash has asserted an inability to connect with the internet. It is difficult to see, however, how that inability could impair his capacity to present the factual arguments relating to events that occurred in 2011. Unsurprisingly, in view of the length of the proceeding to date, and his legal representation up to August 2021, Mr Nash does not say that he has not had fair opportunity of invoking the court's processes to obtain evidence. His application is founded merely upon his capacity to present his case at hearing.
8. I accept that deprivation of the capacity of an unrepresented litigant to connect with the internet may impinge upon a capacity to conduct research of legal principles. But that has to be viewed in context. As I touched upon earlier, he is running a case in this proceeding which, although there may be differences, is largely parallel to the case he ran before Gibson DCJ that resulted in a judgment in his favour in August 2015. The same causes of action, and legal principles, are invoked. At the time he commenced this proceeding in November 2018, he was legally represented (by Aubrey Brown Lawyers). This was the firm which represented him in the earlier proceeding determined by Gibson DCJ who appeared on the record when he commenced this proceeding.
9. It does not appear, at any rate, that between now and the hearing (still over a week's time) that Mr Nash would be totally bereft of the opportunity to connect with the internet. For instance, in the affidavit he relied upon in this application, he was able to cite a passage published on Caselaw, despite his affidavit being prepared whilst he was an inmate. As I mentioned earlier, Mr Nash did not positively indicate, one way or the other, whether the same person with the legal background who assisted him to prepare his recent affidavit could not also assist him to develop arguments about the legal points that have already been exposed will be in issue.
10. To the extent to which he may be disadvantaged through an inability to access procedural law (such as the CP Act and/or the application of the Uniform Civil Procedure Rules) it is of some significance that the State is expected to act as a Model Litigant [4] . One of the applicable principles involves "not taking advantage of a claimant who lacks resources to litigate a legitimate claim" [5] . It would be expected that information regarding purely procedural matters could be supplied to Mr Nash through the State through the course of the proceeding. The Court itself may have some (limited) role in assisting Mr Nash with procedural matters with the endeavour of diminishing the disadvantages flowing from his status as a self-represented litigant; albeit not in a way that may compromise the actuality or appearance of its impartiality.
11. It would also be expected, as commensurate with its obligations as a Model Litigant, that the State would expound the law as fairly as possible, by reference to relevant statutory provisions and case law authority. In Mr Coffey's written submissions at the hearing of these applications, some reference is made to statute and case-law relevant to the issues in the proceeding. Mr Coffey accepted that the State would be in a position (perhaps unique to any other litigant in civil litigation) of ensuring documentation generally could be received by Mr Nash for his timely consideration. Even if his adversary was not the State, with its heightened obligations of fairness, lawyers acting for Mr Nash's opponent, may, as part of their duty to the Court, if not also, obligation under s 56(3) of the CP Act, ensure that recent cases, or statutory provisions which the party proposes to rely upon are brought to Mr Nash's attention. Mr Coffey accepted that as well.
12. In his letter and his affidavit Mr Nash complains that he does not have the opportunity to prepare his 'defence'. I touched upon this earlier. As to the general aspect of his readiness to present his case Mr Nash does not account for what he has been doing to prepare his case currently in this Court, before or after he went into custody following the guilty verdicts in May 2021, or after his previous lawyers ceased to act for him in August 2021. Mr Nash accepted that he not entitled, from the date he sent letter to the Court in November 2021, as it were, to sit on the metaphorical splice; and assume that his request to vacate would be accepted. He also accepted that he could not reasonably invoke the circumstance that the trial is soon to take place after the end of the Court's summer vacation: all litigants who have cases early in the Court's new term are expected to be prepared for these cases even if that does mean some curtailment of the leisure arising from the summer break. He said that he expected to obtain access to documents before the hearing date.
13. I am not persuaded, in the circumstances, that although he may be disadvantaged by conducting his case by Audio-Visual Link whilst in incarceration, the disadvantage is such that he cannot receive a fair trial. I would add that the circumstance that the mode of trial is to be by way of AVL link is not itself to be taken as being prejudicial to him: that has been the mode of hearings for civil matters in this Court regrettably for large parts of the last two years because of the Pandemic. For how long that remains the mode for hearings of civil proceedings, I cannot say.
14. So far, most of what I have said concerns the predicament of Mr Nash. As for the State, a recurring theme running through the Court record of earlier interlocutory arguments is the continuing impact of the present litigation upon Detective Inspector Little who, amongst other things, was the subject of disciplinary complaint and assignment to different duties following the institution of this proceeding until after the criminal proceeding. Mr Coffey accepted Mr Nash' point that the commencement of the proceeding did not thwart Officer Little's promotional prospects: he had since been promoted from Detective Sergeant to Detective Inspector. Even so, although he is not himself a party to the litigation, I take into account when weighing the desirability of a vacation of the hearing, that officer's stake, as to his professional reputation as a police officer. If Mr Nash succeeds with his action, I accept that a disciplinary complaint, currently suspended, will revive. Det Inspector Little accordingly has a significant personal stake in the litigation. I also take into account the fact of earlier vacations. It is always an anxious time for litigants, or third parties closely connected to litigation, as the day for the commencement of a hearing of a legal proceeding draws near. One of the reasons why, traditionally, courts have taken a sceptical view of late applications for adjournments, is that the expectations of having the gruelling process of litigation being finally completed soon are dashed.
15. In view of the procedural history I have alluded to, there has been something akin to a common understanding between the parties that once his criminal proceeding was resolved, the hearing of this proceeding should proceed with prompt dispatch. When Wilson SC DCJ made his orders fixing this proceeding for hearing on 21 February 2022 in November 2020, it appeared to be intended that the stay of the current proceeding would occur until after the completion of the trial. It did not obviously extend to a stay or adjournment of this proceeding until after the plaintiff had finally exhausted his appellate rights. Acceding to Mr Nash's application to vacate the hearing, and to do so indefinitely, would disappoint D/Inspector Little's expectations and naturally augment the stress and other consequences adversely affecting that witness merely from the fact of the allegations made against him. This factor also militates against acceptance of the application.
16. Mr Nash has expressed a clear preference that nothing more should happen in this proceeding until after his appellate rights from the criminal proceeding are exhausted. It is not clear why that preference should be acceded to. First, the basis for earlier adjournments was to enable the trial to occur. Secondly, and related to the first point, as Mr Coffey explained, although the State does not concede that anything determined in the criminal proceeding will be binding on issues to be adjudicated in this proceeding, it consented to earlier adjournments to allow the criminal proceeding to run, that was so as to not derogate from Mr Nash' right to elect not to give evidence in the trials(s). Whatever occurs in the appellate process henceforth, Mr Nash did elect to give evidence, in a trial in the middle of 2020 and (so I am informed) the retrial culminating in the convictions in May 2021. Irrespective of whether the Court of Criminal Appeal quashes the convictions, or perhaps orders a retrial, the fact is that it would be open to the State to rely at the hearing of this proceeding, to the extent relevant, upon admissions by Mr Nash made when he gave evidence in the earlier trials in the criminal proceeding.
17. I am not persuaded, therefore, that there is a reasonable basis, in principle, for the further delay of this proceeding to enable the appellate process in the criminal proceeding to play itself out before the hearing in this matter.
18. This is all the more so in circumstances where, if the Court was to accede to adjourn the hearing of this matter until after Mr Nash has exhausted his rights of appeal, then plainly there is no certain end in sight for when the hearing could proceed. Mr Nash has secured for himself a 12 month window of opportunity to decide whether in fact he wishes to appeal against his convictions at all. Assuming he brought an appeal against his convictions (by 7 February 2023) it would of course be hard to say when the appeal could be heard. If the Court was to accede to his application to adjourn the hearing until has left custody, given the period of incarceration (with the non-parole period set to expire in November 2024), the Court could be sanctioning a delay of virtually three years at the earliest before Mr Nash could, according to his preference, be in a position to present his case. That assumes, of course, that his current convictions stand. It is possible the period might be shorter if his appeal against conviction failed, but Mr Nash succeeded in achieving a reduction in his sentence. This does not lessen the uncertainty.
19. As the State submitted, it has not been demonstrated whether any successful appeal against convictions could result in any finding, of law or fact, that would be binding at the hearing of this proceeding in any event. It is no part of the State's defence to prove that Mr Nash was properly convicted. Still less relevant are the facts the subject of the Appeal and Equity proceedings.
20. This is not an application for an adjournment of only a short duration. To the contrary, in circumstances where there is no indication in sight when the proceeding could finally be heard, acceding to the application would not enhance the efficiency of the Court's dispatch of its business. Indeed, the statutory power to adjourn under s 66(1) requires an adjournment to a 'specified day'. No such day is specified by Mr Nash in his informal application in his letter. His application is to put the matter on the 'back-burner' for years, adding to a pile of cases at a time when the Court already has an extensive backlog of cases, especially criminal proceedings.
21. Nor would the grant of an adjournment be any likely cheaper to the parties. In the circumstances, the State has been preparing the case for hearing intensively. Ordinarily, it would be expected that Mr Nash would bear the costs of a late application to vacate as the price for the indulgence, and there is no indication that it is certain that Mr Nash will have the capacity to meet that additional costs liability: such capacity as he has is contingent upon his retaining the benefit of the judgments he obtained in the District Court in 2015 which are now under challenge. If he fails in this proceeding, it appears very doubtful on the basis of the information about Mr Nash's capacity on this application, that the State will be able to effectively enforce any costs order in its favour. The short point is that, for the moment, Mr Nash is impecunious and there is a real risk that the State would not be able to enforce a costs order against him if it successfully defends the claims against it; being a costs order that would presumptively include the costs thrown away by acceding to the hearing being vacated.
22. I take into account the discretionary matters in s 58(2)(b), which, to some degree, overlap with the matters I have already referred to. Whilst it may be accepted that, in comparison with other parties, Mr Nash is disadvantaged by reason of his status, too little has been presented to indicate how material that disadvantage really is and to indicate why proactive steps have not been taken to address it.
23. The fact is that that applicant has been on notice of this hearing, and the issues arising in them, for virtually 15 months; even with other proceedings concerning him. This was after multiple adjournment applications. The matters he referred to in his letter sent a relatively short period before trial, including the absence of legal representation, had not arisen recently or unexpectedly. This is not a case like Nobarani v Mariconte (2018) 265 CLR 236, where a denial of procedural fairness may arise through a judge's failure to grant an adjournment to a self-represented litigant where the parameters of litigation, such as the subject matter of the contest, have materially changed in close proximity to the hearing. The main point of the adjournments and stays granted in the proceeding to date has been to allow the trial of the criminal proceeding - the trial - to conclude. That has now occurred. Earlier applications for vacation or adjournment by Mr Nash were, as indicated, to enable the trial of criminal proceeding to conclude. They did not encompass appellate proceedings, or other civil proceedings.
24. The informal application to vacate contained in Mr Nash's handwritten letter of 22 November 2021 is also refused.
25. Subject to hearing from the parties, the appropriate orders are made: the plaintiff's notice of motion dated 3 February 2022 is dismissed with costs and the plaintiff is also to pay the defendant's costs associated with separately responding to the plaintiff's informal application to vacate the hearing

Endnotes

1. Nash v State of NSW [2015] NSWDC 144
2. See for example, the litigation that culminated in Sidhu v Van Dyke (2014) 251 CLR 505, where an unrepresented litigant succeeded in the Court of Appeal against a senior junior counsel (since elevated to senior counsel).
3. R W White, "Advocacy and Ethics: The Self-Represented Litigant" 18 October 2014, published on the Supreme Court of New South Wales website.
4. NSW Government Department of Premier & Cabinet, Model Litigant Policy for Civil Litigation (M2016-03)
5. Ibid, par 3.2(f) 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: 18 February 2022