[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
The appellant in this matter, Craig Allchin, filed a notice of appeal dated 30 May 2024 from orders of Weber SC DCJ on 30 April 2024 dismissing his claim for damages for personal injury against the defendant (now respondent), Hunter Water Corporation. His Honour dismissed the proceedings on the application of the defendant pursuant to r 29.7(4) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), which provides:
(4) If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings.
Consistently with his request at the hearing on 16 December 2024, and without intending any disrespect, I will refer to the appellant in the reasons below as Craig.
The matter has been listed before the Registrar of this Court for directions on a number of occasions. On 10 July 2024, the directions of the Registrar included that Craig file and serve a summons seeking leave to appeal and a white folder by 11 September 2024, the filing fee for which was waived. The matter was also listed for directions on 21 October 2024.
The court file indicates that in response to an email query from Craig about the need to file a summons seeking leave to appeal, the Registrar sent him an email on 6 August 2024 in which she drew his attention to s 101(2)(r) of the Supreme Court Act 1970 (NSW), which provides that an appeal will not lie to the Court of Appeal except by way of leave for:
(r) a final judgment or order in proceedings of the Court, other than an appeal -
(i) that involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more.
The Registrar also noted in her email that the certificate pursuant to r 51.22 of the UCPR to specify that the amount in issue exceeded $100,000 had not been completed; and it was not apparent from the material filed that the amount would be exceeded.
Craig did not file a summons seeking leave to appeal or a white book. On 21 October 2024, the Registrar made directions including that the respondent was to file and serve any notice of motion seeking dismissal of the appeal, together with any supporting affidavit and written submissions, by 4 November 2024.
On 1 November 2024, the respondent filed a notice of motion seeking dismissal of the proceedings in this Court pursuant to r 12.7 of the UCPR (dismissal of proceedings for want of due dispatch) or, in the alternative, an order that the appeal be dismissed as incompetent under r 51.41 of the UCPR.
The respondent's notice of motion was listed for hearing on 18 November 2024. Craig did not appear on that occasion, and the motion was stood over to 25 November 2024 pursuant to r 13.6(1) of the UCPR. In the week before 25 November 2024, Craig foreshadowed making an application for pro bono legal assistance.
On 25 November 2024, the respondent's notice of motion came before Griffiths AJA, who was the referrals judge. Craig did not appear. In the hearing on 16 December 2024, he explained his non-appearance, referring to his attendance at a course between 22 and 24 November 2024 and misreading the date in the Court's listing email as 26 November 2024 (it was not in dispute that Craig is vision-impaired). Griffiths AJA stood over the respondent's motion of 1 November 2024 to the referrals judge on 16 December 2024.
On 27 November 2024, Craig filed a notice of motion seeking a referral for legal assistance under Part 7, Division 9 of the UCPR. That motion was referred to me for hearing on 16 December 2024. Although Griffiths AJA had stood over the respondent's notice of motion to 16 December 2024, Mr Griscti, who appeared on behalf of the respondent, accepted that it was appropriate to deal with Craig's application first, and to stand over the respondent's notice of motion. Mr Griscti also informed me that the respondent had no submissions in opposition to the application for referral.
Rule 7.36 of the UCPR provides:
7.36 Referral to a barrister or solicitor
(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
(2) For the purposes of subrule (1), the court may take into account -
(a) the means of the litigant, and
(b) the capacity of the litigant to obtain legal assistance outside the scheme, and
(c) the nature and complexity of the proceedings, and
(d) any other matter that the court considers appropriate.
(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.
(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.
(4) 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.
(4A) 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.
(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.
(6) 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.
The principles guiding the discretion to make a referral under r 7.36 of the UCPR have been considered in a number of decisions of this Court, including, in recent times, in Iqbal v Hotel Operations Solutions Pty Ltd [2022] NSWCA 88; Amgad v Cairns [2022] NSWCA 101 and Young v Director of Public Prosecutions (NSW) [2022] NSWCA 133. Each of those decisions referred with approval to what Brereton JA said regarding r 7.36 of the UCPR in Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 ("Renshaw"), which included the following passage (omitting the footnotes):
"[10] The essential test for making a referral for pro bono assistance under the rule is that it be in the 'interests of the administration of justice' to do so. Mere satisfaction that a litigant cannot otherwise obtain legal assistance is an insufficient reason. As subrule (2) contemplates, it is relevant to consider the person's means, needs and capacity, the nature of the proceedings, and the likely availability and utility of legal assistance.
[11] Moreover, pro bono assistance is a valuable and scarce resource, dependent on the goodwill of members of the legal profession, which should not be lightly dissipated. The Court has a responsibility to husband this resource carefully. The obligations undertaken by a lawyer who accepts a referral import a concomitant obligation on the Court to exercise discretion in the making of referrals. As I said in Dafaalla v Concord Repatriation General Hospital [[2007] NSWSC 602]:
'The success of the scheme is dependent upon the support of the profession, and the obligations which are undertaken by a lawyer on the pro-bono panel import a concomitant obligation on the Court to exercise discretion in the grant of referral certificates. While, by r 66A.1(4), a referral does not indicate that the Court has formed an opinion on the merits of a litigant's case, the Court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit. That is not to say that a referral should never be made in a case apparently lacking merit: for example, it may well be appropriate to grant a certificate, for the limited purpose of obtaining advice, in a case without legal merit, where there is some prospect that the advice will assist the litigant to understand the defects in the case, so that unnecessary litigation may be avoided.'
[12] While referral for legal assistance does not reflect any opinion on the merits of a litigant's case, normally the Court will want to see some signs of merit in a case before making a referral; absent merit, referral will rarely be 'in the interests of the administration of justice'. In some cases, the possibility that examination of the case by a competent practitioner will reveal merit may suffice. In still others, apparently devoid of merit, the Court may grant a referral for the purposes of advice, if there is a prospect that such advice may assist the litigant to appreciate the defects in the case, with the result that unnecessary and futile litigation may be avoided. However, it would be a misuse of this valuable resource to grant a referral to a litigant whose case is devoid of apparent merit simply to make the Court's task in dealing with the litigant easier."
There is no question that it would be to the advantage of the Court if the appellant were represented by Counsel. However, as Basten JA said in Lane v Northern NSW Local Health District (No 2) [2014] NSWCA 32 at [8]:
"It is true that in every case this Court benefits from the availability of professional legal assistance, however it is not always available and there are limits to the cases in which this Court can impose upon members of the Bar to provide assistance without return by way of fee."
In Craig's affidavit in support of his application, affirmed on 29 November 2024 and filed on 3 December 2024, he stated that he is vision and hearing impaired and has a severe mental and cognitive impairment. He stated that his matter was of high public importance, and involved a matter of public safety that was of public interest. He said that to have him proceed with the matter would be a denial of natural justice and procedural fairness. He also reiterated what is in his notice of appeal, that the trial judge did not afford him an adjournment to seek further legal representation and, additionally, that his Honour did not afford him that opportunity under the Disability Services and Inclusion Act 2023 (Cth).
Craig provided with his affidavit a report of a psychiatrist, Dr Terrance Lim, dated 26 September 2024. The report, which was redacted in large part, appears to have been prepared for the purposes of a claim for whole person impairment in respect of a workplace injury. It included a diagnosis of chronic post-traumatic stress disorder (as a result of his former employment as a police officer) and alcohol misuse disorder. Craig also included a letter from an organisation called the Quest for Life Foundation, dated 25 November 2024, which stated that from 22 November 2024 to 24 November 2024 he had attended a weekend program in Bundanoon, called "The Heard Man: Men's Weekend Program".
Craig appeared in person at the hearing on 16 December 2024. When invited by me to do so, he made concise oral submissions in relation to each of the factors to which r 7.36(2) of the UCPR refers. He stated that as a former police officer, he was on a statutory wage on which he could not afford the basic necessities let alone afford legal representation. He stated that he had exhausted all avenues of legal assistance, including approaching Legal Aid, community legal centres, and the Law Society, with no positive response.
He submitted that the trial judge was bound by legislation. He referred to s 66 of the Civil Procedure Act 2005 (NSW), which confers a discretion on the court to grant an adjournment, and submitted that his Honour failed to comply with this provision in circumstances where Craig, having terminated the services of his court-referred legal representatives, was mentally unwell and requested an adjournment. He submitted that this involved a denial of procedural fairness and a breach of the Disability Services and Inclusion Act. He also did not consent to the dismissal of his proceedings.
When I raised, as a matter that I might consider relevant to his application, his failure to take any steps to file a summons seeking leave to appeal and a white book as had been directed in July 2024, Craig submitted that there was an undue delay on the part of the Registrar in terms of informing him about these matters. He also said that the notice of appeal he filed was within time and that it was for the Court to confirm that it had everything it required with respect to a document before accepting it for filing. The implication from these submissions appeared to be that, from his perspective, by the time these matters were raised with him it was too late; although he then submitted that he did not take the steps that were directed because he could not physically or mentally compile what was required.
In the course of the hearing Craig indicated that he had a copy of the transcript of the hearing in the District Court and a copy of the judgment dismissing those proceedings. In accordance with a direction I made at the conclusion of the hearing, he provided those documents by email to the Registrar on the morning of 18 December 2024. As I foreshadowed in the hearing, I have treated these documents as part of the evidence on the application.
I accept that Craig has the mental health diagnoses to which Dr Lim's report referred, and that he has both a vision and hearing impairment (he used a court-provided hearing loop on 16 December 2024 and did not indicate any difficulty hearing me). I also accept, on the basis of his submissions to me on 16 December 2024, that he lacks the means to fund legal advice or representation; and that he has exhausted a number of avenues to obtain legal assistance, including approaching Legal Aid, community legal centres, and the Law Society.
As Brereton JA observed in Renshaw at [10], "[m]ere satisfaction that a litigant cannot otherwise obtain legal assistance is an insufficient reason" of itself to make a referral. The following considerations tell against the making of a referral.
Craig seeks to challenge a decision of the trial judge not to adjourn the hearing of his matter on the second day of the trial; and then to dismiss his proceedings after he left the courtroom. Although he submitted that his matter is both of public importance and of public interest, the nature of his substantive claim was one for damages for personal injury. Proceedings of that nature would not ordinarily be characterised as being in the public interest. In so far as the submission as to public importance might rest on the submission that the adjournment involved a breach of the Disability Services and Inclusion Act, the applicability of that Commonwealth statute to an application for an adjournment in court proceedings is not self-evident.
It is not for me on the present application to reach a concluded view on the merits of the matter. However, assuming he were to file a summons seeking leave to appeal as he has been directed to do, Craig would need to satisfy the Court that leave should be granted. In circumstances where there was no obvious error in the trial judge dismissing the proceedings on the basis of the plaintiff's non-appearance (it being apparent that Craig had left the courtroom), any successful challenge to dismissal of the proceedings would seem to rest primarily on the trial judge's decision not to grant his request for an adjournment. That decision was a discretionary decision on a matter of practice and procedure in respect of which the Court is generally reluctant to grant leave: see State of New South Wales v Meredith [2024] NSWCA 287 at [21]-[22] and the authorities there cited.
Importantly, Craig has been on notice since July 2024 that the Court requires a summons for leave to appeal and a white book, in circumstances where there is nothing before the Court to suggest that the leave requirement in s 101(2)(r) of the Supreme Court Act is not engaged. He was directed to file that material by 11 September 2024, with the fees being waived. He has not done so. Nor, in response to the notice of motion that the respondent filed in early November 2024 challenging the competency of his appeal, has he provided any material to support that leave is not required. When asked to explain why no steps have been taken, his first response was to attribute blame to the Court for accepting his notice of appeal in the first place, a response which did not instil confidence that he would readily accept advice.
My review of the transcript of the hearing before Judge Weber SC did not allay that concern. His Honour's reasons for judgment noted that the legal representatives who appeared for Craig at the trial were provided pursuant to the District Court's pro bono referral scheme (it may be that this referral occurred within the last three years so as to engage r 7.36(2A), but as the transcript was provided after the hearing I have not explored this further). Without going into the detail of what occurred as between him and his legal representatives, in the hearing before me Craig indicated a level of dissatisfaction with their failure to follow what he considered to be reasonable instructions. What the transcript of the hearing indicates is that the hearing commenced on 29 April 2024, with brief openings followed by the examination-in-chief and cross-examination of Craig as the plaintiff, which continued into 30 April 2024. At the conclusion of his cross-examination, there was a discussion between counsel and his Honour about subsequent witnesses. Reference was made to the next witness for the plaintiff being Mr Fogg, an expert witness on liability, and Craig's counsel stated that there was no need to cross-examine any of the other experts. At this point the transcript records an objection from Craig, directed towards his counsel. Following a short adjournment to permit discussion with Mr Fogg, counsel informed the Court that his brief, and that of his instructing solicitor, had been terminated.
In his Honour's reasons for judgment, Judge Weber SC noted that when the plaintiff replaced his counsel at the bar table, he was in "an agitated state", and ultimately sought an adjournment. In relation to that application, his Honour stated:
"In any event, as the plaintiff had created the circumstances upon which he relied, in seeking an adjournment by sacking his pro bono legal representatives, I did not consider it appropriate to grant an adjournment in the circumstances."
The transcript of the proceedings indicates that Craig left the courtroom during the cross-examination of Mr Fogg, after he made a number of objections to questions which the trial judge overruled. As he submitted in the hearing on 16 December 2024, he said to the trial judge at the time that he was leaving in order to find someone to whom to complain about his Honour's conduct. Before leaving, he said to his Honour: "if you continue without me here, there will be a complete denial", although by this time his Honour had already declined to grant an adjournment. After he left, Counsel for the respondent completed his cross-examination of Mr Fogg, and after a short adjournment, discussion with the trial judge, and a further short adjournment, Counsel applied for dismissal of the proceedings pursuant to r 29.7(4) of the UCPR.
Having regard to the value and scarcity of pro bono assistance as a resource, that Craig has previously had the benefit of pro bono legal representation, whose instructions he withdrew in the course of the hearing, and has not been responsive to directions from the Court, do not support the making of a further referral for legal assistance in this matter. Having regard in addition to the other matters I have referred to, and guided by the principles I have outlined, I am not satisfied that it is in the interests of justice to make a referral for legal assistance.
I decline to make a referral. The notice of motion filed on 27 November 2024 should be dismissed. The respondent's notice of motion filed on 1 November 2024, which I stood over on 16 December 2024, should be listed for hearing before the referrals judge on 3 February 2025, with the intervening period giving Craig a further opportunity to file a summons seeking leave to appeal and a white book as was directed on 10 July 2024.
I make the following orders:
1. The appellant's notice of motion dated 27 November 2024 is dismissed.
2. List the respondent's notice of motion dated and filed on 1 November 2024 for hearing before the referrals judge on 3 February 2025.
[3]
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: 20 December 2024