IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION


CARRUTHERS AJ

Wednesday, 9 November 2000

No 20137/00 - JOHN WILSON v THE STATE OF NEW SOUTH WALES

ORDER

HIS HONOUR: By way of history, may I record that on 7 August 2000 this matter came before Sperling J, sitting as the applications judge. Specifically what came before his Honour was a Notice of Motion filed by the defendant State of New South Wales to strike out proceedings, if I could use that expression, filed by the plaintiff, Mr Wilson, on 11 April 2000 constituting a document referred to as a
statement of claim, a requisition for trial by jury, and an affidavit by Mr Wilson in support. I think it is sufficient that I say that the statement of claim alleges that the plaintiff was imprisoned unlawfully on two occasions, firstly from 26 September 1997 to 28 September 1997 and secondly from 9 November 1999 to 29 February 2000. It is alleged that the first period of imprisonment related to charges under
section 326 of the Crimes Act 1900 New South Wales as amended. It is further alleged that the second episode relates to a charge of contempt of court, being a common law offence.

The document, headed statement of claim claims, inter alia, the payment of compensation by the defendant to the plaintiff in the sum of $5 million, and it is those proceedings that the plaintiff sought by his requisition for trial by jury to be determined by a jury.

In response, the State of New South Wales filed a Notice of Motion on 17 May 2000, which I have already made reference. As I have indicated, it was the filing of that Notice of Motion which came before the applications judge on 7 August 2000.

When the matter came before Sperling J, the plaintiff appeared in person and Ms Guilfoyle of counsel appeared for the State of New South Wales.

When the matter became before his Honour, Mr Wilson said at the outset that he was seeking to have a date set for trial by jury and requested that the matter be sent on to the list judge for the fixing of a date for a jury trial of the statement of claim. His Honour then referred the defendant's notice of motion to the holding list, and thus it came before the court this morning, this date having been fixed.

It is now necessary to note that on 23 August 2000 the principal Registrar wrote to Mr Wilson a letter in the following terms:

"Pursuant to an order made by Kirby J on 21 August 2000
the above mentioned proceedings is listed for hearing of the
Notice of Motion on 9 November 2000.

You are advised to contact the Bar Association to obtain pro bono representation or, alternatively, apply to the court for an order under part 66 A of the Supreme Court rules."

When the matter came before me this morning Mr Wilson informed me that he understood that Kirby J's associate had in fact spoken to the Bar Association officer in charge of the Bar Association's Pro Bono Scheme. However, Mr Wilson himself contacted the relevant officer, but the question of the Bar Association making pro bono representation available to Mr Wilson could not be pursued because Mr Wilson declined to make available his assets, liabilities and income to the relevant person or persons at the Bar Association concerned with the administration of the Association's scheme.

When the matter came before me this morning, I raised with Mr Wilson the possibility of my referring the matter to the Registrar of the Court for the appointment of either a barrister or a solicitor to advise and/or represent him pursuant to the provisions of part 66 A of the Rules.

Mr Wilson contended before me that no judge of this Court could rule upon the defendant's Notice of Motion. His submission was that the only proper authority for the determination of that Notice of Motion is a jury. That is a matter which must fall for resolution eventually, if it is pursued, prior to determining whether the defendant is entitled to have the statement of claim struck out on the grounds that it discloses no cause of action and the other matters to which I have referred set out in the Notice of Motion.

Mr Nicholls of counsel, appearing for the State, has made it perfectly clear to me that, understandably, the defendant is anxious to have this matter resolved. I am of course very sensitive to the fact, however, that the letter written by the Principal Registrar to Mr Wilson, to which I have already made reference, contains advice that as an alternative Mr Wilson should seek an order of referral under part 66 A of the Rules.

Having pondered about the matter and listened carefully to what Mr Wilson has said, and also what Mr Nicholls has said, I am inclined to the view that I should refer the matter, pursuant to part 66 A, to the Registrar.

Rule 4 (1) provides "The Court may, if it is in the interests of the administration of justice, refer a litigant to the Registrar for referral to a barrister or a solicitor on the Pro Bono Panel for legal assistance".
Sub-rule 2 of rule 4 provides, for the purposes of sub-rule 1:
"The Court may take into account:
(a) The means of the litigant;
(b) The capacity of the litigant to obtain legal assistance outside the scheme;
(c) The nature and complexity of the proceedings;
and
(d) Any other matter that the Court considers appropriate."

As to the means of the litigant, Mr Wilson handed up this morning a document which I have marked for identification 1, which contains a copy of a Notice to Vacate under the hand of the Sheriffs Officer, Court House Parramatta, directing Mr Wilson and his wife to vacate the premises which they occupy known as 19 Elm Street, North Rocks, in this state. This Notice to Vacate follows orders obtained by the St George Bank Limited, which are the foundation of, what I understand has been a long litigious history pursued by Mr Wilson.

In an affidavit sworn on 6 November 2000, which also is part of MFI 1, Mr Wilson contends that dishonesty on the part of the judges in the Supreme Court of New South Wales and the High Court of Australia, acting without juries in a matter between himself and the St George Bank Limited, is responsible for the eventuality, namely the Notice to Vacate, and the Crown is vicariously liable for that dishonesty.

Indeed Mr Wilson has made clear that he challenges the right of any judge, be he or she a State judge or a Federal judge, to decide any matter involving himself or his wife, and contends that he is entitled in law to have all such matters resolved by a jury.

I do not have any evidence before me, and I do not expect any to be provided by Mr Wilson, as to his means. All I have presently before me is the Notice to Vacate which indicates of course that the relevant judgment remains unsatisfied. However I do not consider that the absence of detailed evidence in relation to the means of the relevant litigant, Mr Wilson, is a necessary impediment to my referring the matter to the Registrar in the circumstances of this case.

As to the capacity of the litigant to obtain legal assistance outside the scheme, I only know that his refusal to disclose his assets and liabilities has impeded any grant of pro bono assistance under the Bar Association scheme. Once again that of itself is not necessarily an impediment to referring the matter under Part 66 A. The nature and complexity of the proceedings speak for themselves; and as to (d) "Any other matter that the Court considers appropriate", I feel, in the light of what I know about Mr Wilson's litigious history, and what I anticipate will occur if this matter is resolved at first instance, contrary to his submissions, that the provision of appropriate legal advice to him at this stage is certainly advisable, warranted and in the interests of justice.

Accordingly I have concluded, after balancing the respective matters for consideration that I should grant a certificate in form 70 B of the Rules. The nature of the legal assistance for which referral would be made would be to obtain advice, and if necessary to appear at the hearing of the matter (see Part 66 A Rule 5), namely the present interlocutory proceedings. I should add to that, sensitive as I am to the submissions of Mr Nicholls that the matter should be resolved with expedition, and of course sensitive as I also am to Mr Wilson's submissions in that regard, I propose to request the Registrar that the matter be referred back to me after appropriate pro bono assistance is tendered to Mr Wilson.