Arambatzis v Foundas

[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.]

Judgment (ex tempore)

1. On 1 March 2021, I granted a stay of execution of a writ of possession issued under an order made by the Court of Appeal on 7 January 2021, and referred Mrs Foundas to the Registrar, for referral to a barrister or solicitor on the pro bono panel, "for legal assistance generally in relation to the proceedings". [1] After some difficulties were encountered with the initial referral, I made a further referral on 1 June 2021. [2] Like the earlier referral, that referral was expressed to be "for legal assistance generally in relation to the proceedings." [3]
2. In the meantime, Mrs Foundas filed a notice of motion on 28 May 2021 seeking the following relief: "2. I seek Orders to abolish judgment on the 15th October 2018 and Terms of judgment of that Order 1 through to 6 inclusive and Notice to Vacate dated 7th January 2021 and Writ of possession from the Sheriff's department of NSW with Ref:: #WOP-832. 3. In the alternative if Item 2, is unsuccessful, I seek Orders to have the stay of the Notice to Vacate dated 7th January 2021 set aside indefinitely with no further Notices until this matter has been exhausted. 4. In the alternative if items 2 and 3, are unsuccessful, I seek Orders to apply a stay on the judgment dated 15th October 2018 inclusive of the Write of Possession and Notice to vacate REF:#WOP-832 to apply for special leave in the High Court of Australia and this stay will be in force until the matter before the High Court is exhausted. 5. In the alternative if Items 2 and 3 and 4, are unsuccessful, I seek Orders to have the right to an appeal on the grounds of newly found evidence which rebuttals the evidence before the Court on the 15th October 2018 judgment."
3. That motion might be understood as seeking to embark on various possible courses of action that had been referred to in the No 1 Judgment. More recently, Mrs Foundas has filed a summons seeking leave to appeal from the original judgment of Darke J. As I have pointed out this morning, that seems to be completely misconceived, as there has already been an appeal from the judgment of Darke J, and there are limited courses of action, to which I have previously referred in the No 1 Judgment, by which the question could now potentially be reopened. [4]
4. It seems to me that in order to bring this matter to a head, the better course now is to proceed on the motion of 28 May 2021 and treat it as a motion in this Court. The motion claims, among other things, the reopening of the appeal, or the permanent stay of the writ of possession. On that basis I will, as I have foreshadowed, make directions for further evidence and submissions in respect of that motion, with a view to bringing it to a hearing. While that occurs, the stay will be extended, none of the respondents having opposed that course.
5. Mrs Foundas has asked that I make a further referral for legal assistance and has provided to the Court a letter from the Managing Solicitor Legal Assistance of the New South Wales Bar Association, which states: "In line with our guidelines, the barristers who prepared this advice will not be further involved in your matter unless otherwise requested by Brereton J."
6. For the reasons that I will explain, I am concerned at this response, although, as always, grateful for such assistance as barristers have provided pro bono. I should record that although the pro bono advice to Ms Foundas has apparently been forwarded to the Court, I have not looked at it and do not propose to do so, as it is a privileged document between the barristers in question and Mrs Foundas. I have directed that it be placed in a sealed envelope, marked privileged, and not to be opened without the leave of a judge.
7. The Court's pro bono scheme is established under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), Pt 7, Div 9. Under r 7.34, "Pro Bono Panel" is defined to mean "the list of barristers and solicitors referred to in rule 7.35." Rule 7.35 provides that the Registrar may maintain a list of persons who are barristers or solicitors and who have agreed to participate in this scheme. However, as I now understand the position, the Registrar does not in fact maintain any such list, but relies on the Bar Association and the Law Society to maintain a list of their members who are prepared to accept referrals. [5]
8. Rule 7.36 provides that the Court may refer a litigant to the Registrar for referral to a barrister or solicitor on the Panel, but may not do so if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of three years, unless the Court is satisfied that there are "special reasons" that justify a further referral. [6] If a litigant is referred for assistance, then the rule provides that it is the Registrar who must attempt to arrange for legal assistance to be provided to the litigant, by a barrister or solicitor on the Pro Bono Panel (which as has been explained does not exist). [7] The scheme operates on the basis that a referral is subject to acceptance by the barrister or solicitor concerned. [8]
9. Rule 7.37 provides that a referral may be made for advice, for representation on interlocutory hearings, for drafting or settling of documents, or for representation generally in the conduct of the proceedings or part of the proceedings. Both the referrals I have made have expressly been for "legal assistance generally" in relation to the proceedings, and I have at one stage, in response to a request, clarified that that was a general referral for the purposes of r 7.37(d).
10. The provisions of present importance commence with r 7.38, which provides that if a barrister or solicitor agrees to accept the referral "he or she must provide assistance to the litigant in accordance with the referral." (emphasis added)
11. Rule 7.39(1) provides that a barrister or solicitor who has agreed to accept a referral may cease to provide legal assistance only in certain circumstances, being those permitted by any relevant practice rules, with the written agreement of the litigant, or with the leave of the Registrar. Rule 7.40 then makes provision in respect of applications for leave to cease to provide assistance, and what must be done to obtain such leave.
12. From the fact that obviously some assistance has been provided, I infer that some barrister or solicitor has agreed to accept a referral in this case and has provided advice pursuant to it.
13. So far as I am aware, no application for leave to cease to provide assistance has been made, nor has it been suggested that there are any relevant circumstances in any practice rules, and it certainly does not appear that there has been a written agreement with the litigant Mrs Foundas that they should cease to provide assistance.
14. The suggestion in the letter from the Bar Association that some further request from the Court is required is, in those circumstances, it seems to me, inappropriate: there has been a referral for assistance generally (r 7.37(d)); as it seems to me, an acceptance of that referral (r 7.38), and no application for leave to cease to assist (r 7.39). The reference to the Bar Association's "guidelines" also appears to me to be inapt in the context of a referral from the Court under Pt 7, Div 9.
15. In order, however, to make the position quite clear, first, I consider that the referral already made is a referral for ongoing representation generally in the conduct of the proceedings. Secondly, insofar as the Bar Association suggests or indicates that some further request is required, I make that request on the same terms as the previous referral.
16. The Court therefore orders that: 1. By 6 September 2021, Mrs Foundas file and serve any further affidavit or documentary evidence and submissions in support of her Notice of Motion filed 21 May 2021 and any relief to like effect; 2. By 27 September 2021, the respondents file and serve any evidence and submissions in response; 3. The proceedings be adjourned to 11 October 2021 before the Registrar, with a view to allocation of a hearing date; 4. The stay of execution of the writ for possession issued on 7 January 2021, originally granted on 1 March 2021 and subsequently extended, be further extended to 11 October 2021; 5. Insofar as it be necessary, in circumstances where prima facie it has been filed in proceedings in the Equity Division, the Notice of Motion be transferred to the Court of Appeal; 6. Insofar as it be necessary, the applicant is referred for further pro bono assistance generally in the proceedings; and 7. The Registrar provide a copy of these reasons for judgment to the Executive Director & Principal Registrar of the Supreme Court of New South Wales, the Director & Prothonotary of the Supreme Court of New South Wales, and the President of the Bar Association of New South Wales.

Endnotes

1. Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78 at [20(1)-(2)] ("No 1 Judgment").
2. Arambatzis v Foundas (No 2) [2021] NSWCA 125 ("No 2 Judgment").
3. No 2 Judgment at [9(2)] (Brereton JA).
4. No 1 Judgment at [15]-[17] (Brereton JA).
5. Clark v State of New South Wales [2018] NSWSC 450 at [3] (Campbell J).
6. UCPR rr 7.36(1), (2A).
7. UCPR r 7.36(4).
8. UCPR r 7.36(5). 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: 26 August 2021