Scott-Irving v State of New South Wales

The plaintiff's application for Legal Aid 3The facts set out below derive from a chronology handed up by Ms Bonnor on 23 July 2014. I have not seen the underlying documents. However, I accept from Ms Bonnor that the chronology set out below is accurate. 4On 15 January 2014, the plaintiff applied for Legal Aid. His application was refused on 17 February 2014. Some time after the refusal, he asked for a redetermination. On 8 April 2014, on redetermination, his application for legal aid was again refused. He appealed on the same day to the Legal Aid Review Committee. On 17 April 2014, the Legal Aid Review Committee deferred the appeal for an investigation pursuant to s 33(1)(d) of the Legal Aid Commission Act 1979 (NSW) (the LAC Act) to seek counsel's advice. 5On 5 May 2014, the Legal Aid Commission made a grant of legal aid for the purposes of a s 33 investigation. On 19 May 2014 the s 33 grant was assigned to a private firm, Raymond Drake. On 3 July 2014, the plaintiff emailed the Legal Aid Commission enclosing the advice of Mr Barber of counsel which was, in substance, that the Legal Aid Commission ought obtain advice from a civil barrister. 6On 8 July 2014, the Legal Aid Commission contacted the office of Raymond Drake and was advised that the principal was closing the practice due to illness and that a locum was managing the practice to close files and transferring matters. The Legal Aid Commission determined, also on 8 July 2014, that it was not possible for in-house staff to take over the carriage of the matter. On 21 July 2014, the Legal Aid Commission formally transferred the investigation pursuant to s 33 of the LAC Act and associated grant to Randall Legal to seek advice from Senior Counsel. On 21 July 2014, Randall Legal wrote to the Registrar in the terms set out at the beginning of these reasons. 7I was informed by Ms Bonnor that a brief had not yet been prepared by Randall Legal and that it could be some time before the Legal Aid Review Committee would be in a position to determine the appeal since it would not do so until an advice had been obtained. It would not be possible for such advice to be obtained before the conclusion of the time allocated for the hearing of the matter.

Directions hearings and the allocation of a hearing date 8In order to appreciate the context in which the application for an adjournment arises it is necessary to have regard to the history of the proceedings to date. 9The plaintiff's claim is, in substance, for damages for malicious prosecution which is alleged to have been committed when police at Taree charged him with indecent assault in a nursing home at Taree. The charges were allegedly dismissed in March and April 2008, according to the pleading filed by the plaintiff. His claim for damages includes a claim for loss of earnings as well as a claim for punitive damages and indemnity costs. 10The first directions hearing occurred on 30 April 2012. There have been fourteen directions hearings in total in this matter, not including the application before me for the matter to be adjourned. At almost all of those directions hearings, the plaintiff appeared in person. 11On 31 May 2012, the plaintiff filed a notice of motion seeking leave to file a third proposed statement of claim. On 24 July 2012 the defendant filed a notice of motion for summary dismissal or strike out of the plaintiff's claim 12These motions came before the Court on 24 July 2012 at which time the Court made the following determination: "That in the interests of the administration of justice Mr Stewart Scott-Irving be referred to a Registrar for referral to a barrister for legal assistance in the drafting and settling of an amended statement of claim to be filed in these proceedings." 13On 24 July 2012, the two motions and the matter were stood over for directions to 27 September 2012. When the matter came before Registrar Bradford on that day, the plaintiff did not appear but the plaintiff was advised that no one had accepted a pro bono referral. Ultimately on 28 May 2013, the plaintiff was granted leave to file a fourth amended statement of claim. 14On 8 August 2013, the plaintiff signed a consent order in which one of the orders was: "Matter listed for hearing at a time convenient to the court." 15At the twelfth directions hearing, on 17 December 2013, the plaintiff appeared and the matter was listed for hearing for ten days to commence on 28 July 2014. The matter came before the Court again for directions on 9 May 2014. The plaintiff, who appeared in person on that occasion, was granted leave to file in Court an affidavit he had sworn on 7 May 2014. In his affidavit he swore in part: [2] I am ready for a hearing with the proviso that I might do so with or without the assistance of Legal Aid's provision of funding to support my proposed subpoenaed witnesses attendance and or supplying documentation. 16When the matter came before the Court on 9 May 2014 the plaintiff also changed his email address for service and this was recorded. The defendant was granted an extension of time within which to file two further statements. The matter was stood over for a telephone conference on 27 May 2014. 17On 27 May 2014, the plaintiff appeared, as did the defendant. Registrar Bradford confirmed the hearing date of 28 July 2014.

Relevant legislation 18Section 31 of the LAC Act provides that a person may apply for legal aid. Section 33(1)(d) of the LAC Act provides that on receipt of an application the Commission may refer the application or any matter relating to or arising from the application to a person (including a barrister or solicitor) nominated by the Commission for investigation, report or advice. Section 34 of the LAC Act provides that the Commission shall determine the application by granting or refusing it but that it may at any time redetermine an application that has been refused. 19Section 56 of the LAC Act relevantly provides: Appeals (1) An applicant or legally assisted person dissatisfied with: (a) the determination or redetermination, by a person or committee acting in pursuance of a delegation or authorisation under section 69, of an application under section 34 (1), . . . may appeal to a Legal Aid Review Committee. 20Section 57 of the LAC Act provides: "Adjournment of certain proceedings Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit."

Parties' submissions 21Ms Bonnor submitted that the fact that the Legal Aid Commission had agreed to fund an investigation into the matter was sufficient of itself to demonstrate that the appeal was not frivolous or vexatious. She submitted that there are no special circumstances that would prevent me from adjourning the proceedings and referred me to the consideration of authorities collected by McDougall J in Commonwealth Bank of Australia v Clapham [2012] NSWSC 41. She also referred to the policy that litigants ought, wherever possible, be legally represented. Ms Bonnor also emphasised that the use of the negative in s 57(c) of the LAC Act meant that it had to appear to me that there were special circumstances that prevent me from adjourning the proceedings or I would be obliged to adjourn the proceedings. Ms Bonnor also referred me to Tahana v Secure Funding Pty Ltd [2013] NSWCA 19 in which an adjournment was refused on the basis of delay and lack of prospects of success. 22Mr Hutchings, who appeared on behalf of the defendant, submitted that it was of importance that the application for legal aid was not made until a month after the matter had been set down for hearing on the basis of the plaintiff's readiness for hearing and that the Registrar was not put on notice of the imminent application. He also relied on the affidavit sworn by the plaintiff on 7 May 2014 in which he attested to his readiness for hearing notwithstanding the pendency of the legal aid application, to which he specifically referred in the affidavit. 23Mr Hutchings also submitted that I could infer that the defendant had expended substantial costs and time in preparing the matter for hearing and that there were particular difficulties having regard to the need to obtain witnesses from the country whose involvement in the facts with which the proceedings are concerned occurred many years ago. 24Mr Hutchings also relied on the fact that, although the plaintiff had attended almost every directions hearing in the matter to date, he was not present for this application. He submitted further that I could not draw an inference from the grant of aid for investigation that there was merit in the application but such a grant was consistent with there being insufficient legal knowledge about the subject of the claim for an appeal against the refusal of legal aid to be fairly determined. He also contended that a claim for damages for an intentional tort was not necessarily one that would ordinarily qualify for legal aid. 25Mr Hutchings submitted that the material before me was insufficient for it to appear to me that the appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings. He also submitted that there are special circumstances including the imminence and length of the hearing and the previous representations made to the Court by the plaintiff about his readiness for hearing, when the matter was set down and at the directions hearing on 9 May 2014. He was also critical of the plaintiff for not agitating the Legal Aid Commission for a determination of his appeal which could account for some of the delay.

Reasons 26It does not appear to me that the appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings. That the plaintiff would apply for legal aid after the matter had been set down for hearing and not propound it to the court as a reason why the date ought be vacated until the application had been finally determined (including an appeal) is telling. It is also significant that on 9 May 2014 the plaintiff was prepared to disclose the legal aid application but represent to the Court and the defendant (including by affidavit) that it did not affect his preparedness for the matter to proceed. 27In these circumstances it was, in my view, incumbent on the plaintiff to provide some explanation to shed light on his conduct which on its face appears to be at least misleading towards the Court and to the defendant. Whether he is reluctant to face the final hearing of this matter is not a question that I am in a position to determine but his silence does not assist him to make the matters referred to in s 57(b) of the LAC Act appear to me. Indeed his silence allows me more readily to infer to the contrary. 28The LAC Act needs to be read with the Civil Procedure Act 2005 (NSW) and the principles set out, including the interests of justice. It is relevant that the hearing has been listed for ten days and the application for adjournment was made in the week immediately prior to the hearing. The representations made by the plaintiff to the Court in December 2013 and in May 2014, together with the procedural history of the matter set out above persuade me that there are special circumstances. The plaintiff cannot, on the one hand, obtain a hearing date and put the defendant to considerable expense and on the other, apply for legal aid and seek to use the LAC Act as a device to prevent the hearing going ahead in circumstances where he has been prepared to proceed without legal aid to date and consistently represented his readiness for hearing to the Court and the defendant. I am satisfied that there are special circumstances that prevent me from adjourning the proceedings.

Orders 29I make the following orders: (1)Decline the plaintiff's application for an adjournment of the hearing. (2)Confirm the hearing date of 28 July 2014 for ten days. 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 2014