Amgad v Cairns

Judgment

1. GLEESON JA: Application is made by Jamal Amgad by notice of motion filed 28 April 2022 for an order for pro bono legal assistance under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.36.
2. Mr Amgad's application is made in relation to his application for leave to appeal from a decision of a judge of the District Court on 3 December 2021, after a two-day trial, dismissing his claim for damages against the defendant, Mr Stephen William Cairns, a barrister, for alleged negligence in the conduct of judicial review proceedings heard in this Court in 2013.

The 2013 judicial review proceedings

1. Mr Amgad commenced judicial review proceedings in this Court with respect to a judgment of the District Court in its criminal jurisdiction on appeal from the Local Court; he described himself in his summons as "Mr Jon Jamal". The background to the judicial review proceedings is as follows. On 10 November 2011, Mr Jon Jamal was found guilty in the Local Court of common assault of his wife and sentenced to a conditional good behaviour bond for 12 months. The Local Court also made a final apprehended violence order against Mr Jamal for two years, the protected persons being his former wife and their three children. Mr Jamal appealed against his conviction to the District Court and appealed against the apprehended violence order. The appeals were heard before the District Court in March and June 2012. The appeal on conviction was dismissed; the District Court confirmed the conviction and the sentence imposed by the magistrate, but amended the terms of the apprehended violence order.
2. Mr Jamal was represented in this Court on 2 October 2013 by Mr Cairns of counsel. His application for judicial review was advanced by Mr Cairns on the basis of an alleged failure to afford Mr Jamal procedural fairness on his District Court appeal. This failure was particularised as relating to four matters: (1) he was not afforded the opportunity to be legally represented; (2) his application for an adjournment (on 1 June 2012) was refused; (3) he was not afforded the assistance of an interpreter (on 1 June 2012); and (4) the District Court refused to receive and consider further evidence on the hearing of the appeal.
3. This Court concluded that Mr Jamal's complaint that he was denied procedural fairness on the hearing of the District Court appeal was not made out. His application for judicial review was dismissed with costs: Jamal v Director of Public Prosecutions [2013] NSWCA 355.

The 2020 District Court proceedings

1. On 12 May 2020, Mr Amgad filed a statement of claim in the District Court, describing himself as "Mr Jamal Amgad", claiming damages, including aggravated damages, loss of profit and expenses incurred in remedying the negligence, exemplary damages, interest and costs against Mr Cairns for alleged negligence in the representation of Mr Amgad in the judicial review proceedings. Other allegations made against Mr Cairns included that, by his misconduct, he purposely led Mr Amgad to lose his "appeal" (to this Court in 2013) and that he tried to send Mr Amgad to gaol as the New South Wales Police instructed him. No particulars were given of this allegation. The trial judge observed that pleading also included the following statement, being a reference to the defendant, Mr Cairns: I cannot imagine the treachery and betrayal that happened to me from Mr Steven.
2. The defence filed on behalf of Mr Cairns on 16 January 2021 included a time-bar defence under the Limitation Act 1969 (NSW), and the defence of advocate's immunity.
3. Mr Amgad was self-represented in the District Court. The trial judge (Robison DCJ) found that there was a lack of evidence which would justify any finding as sought by Mr Amgad that Mr Cairns had involved himself in any kind of illegal activity. His Honour concluded, having assessed the evidence, including the transcript of the submissions made by Mr Cairns in the 2013 judicial review proceedings, that he could not detect any degree of negligence or any degree of misleading of the Court or anything of that kind, but if he was wrong in that regard, and Mr Cairns was negligent, then the defence of advocate's immunity applied. Accordingly, the District Court proceedings were dismissed.

Application for leave to appeal

1. Mr Amgad filed a summons seeking leave to appeal on 24 March 2022, having earlier filed a notice of intention to appeal on 14 December 2014. He seeks an extension of time, as the summons is out of time by 21 days.
2. Mr Amgad's draft notice of appeal contains the following proposed appeal grounds: "Procedure - error of law & question in law - Fairness - Natural of justice - fact - Procedure conflicted of the decisions - Mislead." (Emphasis in original)
3. These grounds do not briefly, but specifically, identify the grounds relied upon in support of the appeal.
4. Mr Amgad's summary of argument does not take the matter any further. He asserts that Robison DCJ (a) breached the rules of natural justice and procedural fairness, without identifying in any clear manner the basis of those complaints, (b) erred in finding no prima facie case against Mr Cairns, when that was not the basis on which the judge dismissed the proceedings, and (c) erred in dismissing his proceedings, which was contrary to a previous order made in the District Court on 10 December 2020. The order made on 10 December 2020 was an interlocutory order dismissing Mr Cairns' application to strike out the proceedings. Plainly, that order was overtaking by the final order made on 3 December 2021 dismissing the proceedings after a two-day hearing.
5. Mr Amgad also complained that the trial judge "refused to investigate and take legal action about the illegitimacy (sic) defence and false affidavit of the respondent".

The present application

1. In support of his application for legal assistance, Mr Amgad deposed in his affidavit that he was not capable of presenting his case for the following reasons: [2] I am on a limited income (disability support pension) and I have no anything in my life more or less than this D.S.P. income. [3] I suffered from, hard financial hardship in my life. [4] I facing difficulty with the English language writing and speaking as it was a second language for me. … [6] My application for Legal Aid was refused and refused confirmed by the grant division because have not enough funds.
2. As to the refusal of legal aid, correspondence from the Legal Aid Review Committee dated 3 March 2022 clarifies that Mr Amgad's appeal against the refusal of legal aid was unsuccessful on the ground that the legal dispute involves a type of matter for which legal aid is not available.
3. The Court may make a referral for pro bono assistance under UCPR, r 7.36 where it is in the "interests of the administration of justice" to do so. In making that decision, the Court may, but generally will, to the extent that information is available, take into account the means of the litigant, his or her capacity to obtain legal assistance outside the scheme and the nature and complexity of the proceedings: UCPR, r 7.36(2); M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [19].
4. In Renshaw v NSW Lotteries Pty Ltd [2021] NSWCA 41 at [10]-[12], Brereton JA made the following observations in relation to r 7.36(1): … 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. 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: 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. 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…" [footnotes omitted]
5. I am not satisfied that it is in the interests of the administration of justice to refer Mr Amgad for pro bono legal assistance. Accepting that Mr Amgad lacks the means to fund legal advice or representation in relation to his application for leave to appeal, is not of itself sufficient to justify a referral in this case.
6. First, the proposed appeal is devoid of merit. Both the claim in negligence and the claim based on alleged illegal activity of the respondent failed comprehensively on the facts, as found by the trial judge, and none of his Honour's factual findings are the subject of challenge on the proposed appeal. The negligence claim was defeated in any event by the defence of advocate's immunity, and no basis for challenging that conclusion has been identified in the summary of argument. In addition, the negligence claim is time-barred under the Limitation Act 1969 (NSW), s 14.
7. Second, given the serious nature of the allegations of misconduct levelled by Mr Amgad against the respondent, I am reticent to refer Mr Amgad to a barrister on the pro bono panel for legal advice.
8. Third, Mr Amgad has a prolonged grievance against the respondent and it is not likely that any advice given to Mr Amgad will avoid unnecessary and futile litigation. That is apparent from the content of Mr Amgad's pleading in the District Court (see [6] above) and his summary of argument on the leave application (see for example, the submission extracted at [13] above).

Order

1. Accordingly, I decline to make any referral under UCPR, r 7.36 in respect of any aspect of Mr Amgad's application for leave to appeal. His motion seeking such an order is dismissed.

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