Supreme Court New South Wales Medium Neutral Citation: Clarke v Commissioner of Corrective Services [2021] NSWSC 1184 Hearing dates: 8 September 2021 Date of orders: 8 September 2021 Decision date: 08 September 2021 Jurisdiction: Common Law Before: Lonergan J Decision: (1) The plaintiff's Notice of Motion filed on 18 August 2021 is dismissed. (2) The question of costs of the Notice of Motion is reserved. Catchwords: CIVIL PROCEDURE – wide request for referral to solicitor and barrister on the Pro Bono scheme panel – interests of administration of justice – Uniform Civil Procedure Rules 2005 (NSW) rr 7.36 and 7.37 – applicant is a qualified solicitor with over eight years experience – applicant has not exhausted avenues for legal assistance outside the scheme – request for referral refused Legislation Cited: Supreme Court Act 1970 (NSW), ss 69, 75 Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 7.37 Cases Cited: R v Brody Jack Clarke [2019] NSWDC 2 Category: Procedural rulings Parties: Brody Clarke (Plaintiff) Commissioner of Corrective Services (Defendant) Representation: Counsel: Z Heger (Defendant) B Clarke, Self-represented (Plaintiff) Solicitors: Crown Solicitor's Office (Defendant) File Number(s): 2021/231767 Publication restriction: Nil REVISED EX TEMPORE Judgment 1. Referred to me for determination today as Duty Judge is a Notice of Motion filed by the plaintiff on 18 August 2021 seeking referral to a barrister and/or solicitor under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). 2. The form of order sought by the plaintiff seeks a referral to the Pro Bono Panel for legal assistance in relation to: 1. advice in relation to the subject proceedings; 2. drafting or settling of documents to be filed or used in the subject proceedings; and 3. representation generally in the conduct of the subject proceedings. 1. The proceedings were commenced by Summons on 13 August 2021. The plaintiff Mr Clarke, who appears representing himself today, informed me that he drafted that Summons and prior to doing so had had some assistance in the form of nine audio-visual link meetings with solicitor, Ross Hill, early in 2021. 2. The Notice of Motion drafted by Mr Clarke was a sophisticated, well-prepared document accompanied by a relevant, well-drafted affidavit in support affirmed 26 August 2021. 3. Mr Clarke seeks specific relief in the Summons in the nature of prerogative and declaratory relief pursuant to ss 69 and 75 of the Supreme Court Act 1970 (NSW) regarding certain specific decisions of the defendant named in the proceedings as the Commissioner of Corrective Services for and on behalf of the State of NSW. The relief sought is specific, succinct, well-drafted and in parts of it, relevantly referenced to the underlying legislative provisions. 4. Also before me on the application by way of background is a sentencing judgment: R v Brody Jack Clarke [2019] NSWDC 2, where in January 2019 Judge Williams SC sentenced the applicant for offending which it appears from the detailed sentencing remarks relates to a gambling addiction and associated fraud. That judgment is placed before me by the defendant as relevant background, not in any way to suggest that the history of the plaintiff entitles or disentitles him to assistance under the Pro Bono Scheme, but simply so I can understand the background which includes that Mr Clarke is a qualified lawyer who practised as a lawyer for eight years and is described by the Sentencing Judge to be a "highly intelligent, well-educated 36 year old man, with a stellar curriculum vitae, including periods with leading investment banks and with large law firms". 5. I have today made my own assessment of Mr Clarke who presents as a polished, highly intelligent, articulate person who was well able to present with force and clarity his submissions and evidence. He demonstrated a good understanding of Court procedures and what is important and what is not in putting forward the arguments he wishes to make about the defendant. 6. I raise those background matters because the purpose of the referral scheme is, as provided in the r 7.36, that if the Court is satisfied that it is in the interests of the administration of justice, the Court may, (and so I have a discretion), by order, refer a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. 7. Rule 7.36(2) provides that for the purposes of r 7.36(1), the Court may take into account: 1. the means of the litigant, and 2. the capacity of the litigant to obtain legal assistance outside the scheme, and 3. the nature and complexity of the proceedings, and 4. any other matter that the Court considers appropriate. 1. Mr Clarke, in his well-prepared Affidavit and in his equally well-prepared submissions, outlined for my benefit, for the purposes of r 7.36(2) that he does not have financial means, that he earns $30 a fortnight in custody, that he does not have a wealthy family or benefactor to assist him, and that due to his gambling addiction he has been left with no assets or money. 2. He pointed out that to this stage he had the assistance of Mr Hill but no longer has that assistance as he cannot afford to pay for the ongoing assistance of Mr Hill, which seems to be what is required. He pursued the potential for having a litigation funder assist, but that unfortunately failed. 3. In his Affidavit, Mr Clarke refers to efforts made through Legal Aid, the Public Interest Advocacy Centre, and the NSW Bar Association Legal Assistance Referral Scheme. Details were not included as to the precise nature of the enquiries, but Mr Clarke assisted me by advising that his mother had made contact with the Public Interest Advocacy Centre and the NSW Bar Association on his behalf. She was told that the Public Interest Advocacy Centre did not take on Administrative Law matters. In respect of the NSW Bar Association, he understands from what his mother has told him that currently there had been no success in appointing a barrister, that there had been "delays due to COVID", and that at the last indication, "they" recommended, although the person who recommended this was not specified, that he should await the outcome of this application. As I indicated to Mr Clarke, I found that surprising because, really, the effect of any referral to the Registrar for referral out under the rule would be to that very same scheme. 4. Ms Heger, who appears for the defendant, assisted me with an outline of the nature of the proceedings which she conceded were of some complexity and will require a close consideration of the relevant legislation and regulations. She acknowledged that prayers one, three, four and five sought in the Summons are arguable, and the other prayers, not being quite so clearly pleaded to allow any concession as to arguability to be made at this stage. 5. Mr Clarke confirmed that he has not commenced proceedings lightly and had attempted, no doubt with a high level of competence and intelligence, to pursue the matters he wished to raise with the parties concerned by letter and other submissions. 6. Mr Clarke stated in his Affidavit that he does not have ready access to resources that would enable him to undertake the requisite legal research and/or the computer hardware necessary to prepare a "robust legal argument" and self-represent himself in this proceeding. 7. Turning back to the mechanics of r 7.36, subr (4) provides the way this rule will work, and that is if a litigant is referred for assistance under this rule, the Registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel. Subrule (4A) provides that if the Registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant's referral, the Registrar may make an order terminating the litigant's referral. Subrule (5) provides that the Registrar may refer a litigant to a particular barrister or solicitor, only if the barrister or solicitor has agreed to accept the referral. Subrule (6) provides a referral to a barrister does not prevent a referral also being made to a solicitor, and a referral to a solicitor does not prevent a referral also being made to a barrister. 8. Rule 7.37 sets out the kind of assistance that can be the subject of referral. It provides that assistance can be referred for: 1. advice in relation to the proceedings, 2. representation on directions hearing, interlocutory or final hearing, arbitrational or mediation, 3. drafting or settling documents to be filed or used in the proceedings, 4. representation generally in the conduct of the proceedings or of part of the proceedings. Defendant's Submissions 1. The written submissions provided to the Court by Ms Heger raised a number of points for my consideration. One is obviously that I must be satisfied that it is in the interests of justice to make such an order. The submissions also pointed out some lack of clarity in Mr Clarke's material about the steps he had taken to obtain legal assistance, and urged that I take into account that he had extensive experience working as a solicitor including at Blake Dawson Waldron from 2006 to 2010 and at Atanaskovic Hartnell for four years. She submitted that if I decide to make an order, I should make a more limited one than the order Mr Clarke seeks. Consideration and Decision 1. It is obvious that a Court should not make an order that is useless or otiose. In this case, Mr Clarke has said in Court, and I have absolutely no reason to doubt its truth, that the last advice from the Pro Bono Panel of the NSW Bar Association was that it had not yet found assistance for him. I do not understand that to be a refusal to assist. Obviously Mr Clarke has demonstrated a good capacity to prepare and present legal material and to explain with clarity what he wants and why he wants it. He is in fact in the process of obtaining legal assistance inside the scheme, although as yet without a result. 2. It seems to me that I cannot then be satisfied that the avenues of pursuing legal assistance have been fully explored. Ironically, Mr Clarke is already on the same path for legal assistance. This referral that he now seeks would do no more than place him on the path he is already on. That seems to me to be a persuasive reason why I should not grant the orders sought in the Notice of Motion. 3. More significantly, I am not persuaded that it is in the interests of the administration of justice to refer Mr Clarke for the assistance he seeks, or any of it. Whilst the proceedings have some complexity, it seems to me that he is well able to pursue those proceedings. I am not satisfied that it is in the interests of the administration of justice to refer Mr Clarke for referral to the Pro Bono Panel. It seems to me the level of legal assistance he would need, or that would be of any benefit to him, must be at the level of the assistance of counsel, and it seems that Mr Clarke is currently pursuing that without the assistance of any order of this Court. 4. In all the circumstances, I am not minded to make the orders sought in the Notice of Motion. Accordingly, the Notice of Motion is dismissed. 5. In relation to costs, Mr Clarke submitted that at the last directions hearing before the Registrar, the defendant's representative made submissions "…that they believed at that point it would be worthwhile to proceed with this motion and it could, in fact, assist the administration of the proceedings. If I can just make that submission, that I certainly wasn't discouraged by the defendant in bringing this motion today". 6. As I pointed out to Mr Clarke, I would need the transcript of the directions hearing to evaluate that submission and I do not have that. I also observed that given that the application was a matter between Mr Clarke and the Court to a large extent, it would have been quite improper for the defendant to somehow try and prevent the application for Pro Bono assistance being ventilated. 7. In the circumstances I ordered that the question of costs be reserved. Orders 1. The orders were as follows: 1. The plaintiff's Notice of Motion filed on 18 August 2021 is dismissed. 2. The question of costs of the Notice of Motion is reserved. ********** 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: 17 September 2021