[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.]
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Judgment
HIS HONOUR: The applicants seek an order under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) that they be referred to the Registrar for a referral to obtain pro bono legal assistance. They also seek orders that the proceedings be stayed until such representation is obtained.
On 8 June 2018 Pembroke J, sitting in the Equity Division, ordered that proceedings brought by the applicants in 2018 be dismissed. That was an order for summary dismissal of proceedings that had been commenced by the applicants by a statement of claim filed on 7 May 2018 in proceedings 2018/143151.
Pembroke J also ordered:
"(2) I order pursuant to s 8(7)(a) of the Vexatious Proceedings Act that all proceedings in New South Wales instituted by Joseph de Varda and Rabbi Samuel Tov-Lev relating to or arising out of their complaints concerning the closure and sale of the Holocaust Synagogue at Strathfield be stayed.
(3) I order that Joseph De Varda and Rabbi Samuel Tov-Lev be prohibited from instituting further proceedings in New South Wales relating to or arising out of their complaints concerning the closure and sale of the Holocaust Synagogue at Strathfield without the leave of the court."
On 7 September 2018 the applicants filed a summons seeking leave to appeal from the orders of Pembroke J of 8 June 2018.
On 2 October 2018 the defendants in the proceedings commenced in May 2018 that had been summarily dismissed filed a notice of motion in which they sought orders including:
"1 Pursuant to s 13(4)(a) of the Vexatious Proceedings Act 2008 (NSW) (Act), declare that the proceedings commenced by Summons Seeking Leave to Appeal filed by the Applicants on 7 September 2018 (Proceedings) are proceedings to which subsection 13(2) and (3) of the Act applies.
2 Pursuant to s 13(4)(b) of the Act, declare that the Proceedings be dismissed.
3 In the alternative to prayer 1, pursuant to s 13(4)(a) of the Act, declare that save for the prayer for leave to appeal from the vexatious proceeding orders made by Pembroke J on 8 June 2018, the balance of the Proceedings are proceedings to which subsection 13(2) and (3) of the Act applies.
4 In the alternative to prayer 2:
a. pursuant to s 13(4)(b) of the Act, declare that save for the prayer for leave to appeal from the vexatious proceeding orders made by Pembroke J on 8 June 2018, the balance of the Proceedings [are] dismissed; and
b. pursuant to s 13(4)(c) of the Act the balance of the Proceedings be stayed until the Respondents file an Amended Application for Leave in which leave is sought only from the vexatious proceeding orders made by Pembroke J on 8 June 2018."
On 9 October 2018 the applicants filed a notice of motion seeking, amongst other things, an order that they be referred to the Legal Assistance Referral Scheme of the NSW Bar Association on a pro bono basis.
Both applications were heard by Beazley P on 22 October 2018. In a reserved judgment given on 12 November 2018, her Honour made a declaration in the following terms:
"Declare that the summons seeking leave to appeal filed 7 September 2018, insofar as it seeks leave to appeal from the order dismissing the 2018 proceedings, stands dismissed pursuant to the Vexatious Proceedings Act 2008 (NSW), s 13(3)." (De Varda v Austin [2018] NSWCA 263).
Beazley P dismissed the applicant's notice of motion seeking a pro bono referral. Her Honour set out in some detail the history of the litigation that extends back to 2011 and the applicants' claims. It is unnecessary for me to set out that detail.
Her Honour concluded that the applicants' summons for leave to appeal from the order of Pembroke J summarily dismissing their proceeding was within the scope of order 2 made by his Honour under s 8 of the Vexatious Proceedings Act 2008 (NSW). Beazley P held that the consequence of s 13(3) of that Act was that the application for leave to appeal from the order for summary dismissal was itself taken to have been dismissed by the operation of statute. This was because prior leave had not been sought for the bringing of the application for leave to appeal from the order for summary dismissal. (Judgment [34])
Beazley P concluded (at Judgment [38]) that s 13(2) of the Vexatious Proceedings Act did not require prior leave to the application for leave to appeal from orders 2 and 3 of the primary judge, being orders staying all proceedings relating to or arising from the complaints about the closing and sale of the Holocaust Synagogue at Strathfield and restraining the institution of further proceedings relating to that subject matter without prior leave.
In relation to the applicants' application for pro bono assistance, her Honour concluded that the likelihood of leave being obtained to appeal from the order for summary dismissal was negligible (Judgment [42]). Her Honour said that the resources available under r 7.36 should not be directed to proceedings that were highly unlikely to succeed (Judgment [42]).
In relation to the application for leave to appeal from the orders made under the Vexatious Proceedings Act Beazley P noted that during the course of argument she had expressed an inclination to make such an order. She ultimately decided not to do so. Her Honour's reasons for that conclusion are summarised at [46] and [47] as follows:
"46 The 2011 and 2013 proceedings were dismissed by orders made by the judges of the Supreme Court. The claims brought in the 2018 proceedings are, in essence, the same as those brought in the earlier dismissed proceedings. In addition, the applicants have brought numerous proceedings in the Court against the respondents in the two earlier proceedings without any relevant success. Notwithstanding that an order made under the Vexatious Proceedings Act effects a serious but conditional constraint on a person's access to the courts, I consider, given the history of the matter, that there is a real question whether any appeal against the orders made under the Act would succeed. That points against making an order for referral for pro bono assistance.
47 However, there is a more fundamental reason which points strongly against the making of an order for referral. The order made under the Vexatious Proceedings Act was limited to instituting further proceedings in New South Wales relating to or arising out of the closure and sale of the Holocaust Synagogue at Strathfield. A principal purpose of the applicants in seeking pro bono assistance was to be freed from the fetters of the order made under the Vexatious Proceedings Act so as to enable them to challenge the dismissal of the 2018 proceedings. I have already stated my opinion that the prospects of success of challenging that order are negligible."
On 5 March 2019 this court (Bell P and Leeming JA) gave the applicants leave to appeal orders 2 and 3 made by Pembroke J on 8 June 2018 (De Varda v Austin [2019] NSWCA 42). The reason for the grant of leave to appeal was that there was a real and serious question whether the applicants had been afforded procedural fairness before the orders under the Vexatious Proceedings Act were made (Judgment [9]).
An interlocutory order such as that made by Beazley P refusing an application for a pro bono referral creates no estoppel, but generally it is an abuse of process for a party to seek to re-litigate a decision on an interlocutory matter unless there has been a material change of circumstances or the discovery of new evidence that was not reasonably available at the hearing of the first application (Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46).
Here there has been a material change of circumstances, namely this court has granted the applicants leave to appeal from the orders of the primary judge made under the Vexatious Proceedings Act. There is evidently a serious question as to the validity of those orders.
The notice of appeal filed by the present applicants on 12 March 2019 goes well beyond the grounds on which leave to appeal was granted. For example, the notice of appeal alleges actual or apprehended bias on the part of the primary judge because as a barrister he is said to have acted for Lawcover in defending a case brought by the first applicant. The notice of appeal alleges misbehaviour on the part of the primary judge in his conduct as a barrister and seeks to raise other collateral issues. It also seeks to re-agitate the history of the litigation and to propound on the appeal from the orders made under the Vexatious Proceedings Act the merits, as the applicants would contend, of the litigation commenced in 2011 and 2013.
The grant of leave to appeal was not confined to the question of whether the applicants were denied procedural fairness. Nonetheless it would be desirable for the applicants to be represented at the hearing of the appeal by counsel who brought appropriate objectivity to the matters that could or could not properly be advanced in relation to the orders made under the Vexatious Proceedings Act on 8 June 2018.
The respondents have filed a notice of contention. They contend that the primary judge, after hearing from the appellants or giving them the opportunity to be heard, should have found that in addition to the proceeding commenced in 2018 the appellants had commenced some 13 proceedings between 29 June 2011 and 9 December 2013 that were vexatious. This is evidently a reference to the 2011 and 2013 proceedings themselves and to the various interlocutory applications made by the applicants in those proceedings.
It appears that the respondents will seek to rely on a folder of documents of some 560 pages in support of their notice of contention. If the Court of Appeal were to find that the applicants had been denied procedural fairness below, then a question would arise as to whether the respondent's application for orders under s 8 of the Vexatious Proceedings Act should be remitted to the Equity Division or whether the Court of Appeal in the exercise of its powers under s 75A of the Supreme Court Act 1970 (NSW) on a rehearing, could and if so, whether it should, rehear the respondent's application.
That is also a question upon which it would be desirable that the applicants have the benefit of legal assistance. It might require consideration of what the High Court said in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55, in a case where it is found on appeal that there has not been a proper hearing at first instance, either on the ground of actual or apprehended bias, or denial of procedural fairness (as to the latter of which see Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [9]-[13] per Basten JA).
If orders 2 and 3 made by Pembroke J were set aside on appeal, then a further question would arise, namely whether the foundation for the declaration made by Beazley P would fall away and whether that would have the effect retrospectively of reinstating the summons for leave to appeal from order 1 made by Pembroke J, or whether a fresh summons would need to be filed for leave to appeal from that order. A question might arise as to whether the Court of Appeal could deal immediately with an application for leave to appeal from the first order made by Pembroke J, if orders 2 and 3 were set aside on appeal. Again, those are questions upon which the applicants would need legal assistance.
Rule 7.36 relevantly provides:
"7.36 Referral to a barrister or solicitor (cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)
(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."
There is evidence before me that the applicants do not have the financial means to obtain legal assistance outside the pro bono scheme. I consider that the nature and complexity of the proceedings are such that it is in the interests of justice that the applicants be referred to the registrar for referral to a barrister on the pro bono panel.
A question has arisen as to whether the effect of sub r (2A) is that I must also be satisfied that there are special reasons to justify the referral. There has been no previous referral of the applicants for pro bono assistance under r 7.36, however in an affidavit made by the first applicant on 19 October 2018 in support of the notice of motion filed on 9 October 2018 that was before Beazley P, the first applicant deposed that on 31 January 2018 Farrell J of the Federal Court of Australia referred both him and the second applicant to the Legal Assistance Scheme of the NSW Bar Association to obtain legal representation for pro bono assistance. This was in connection with bankruptcy proceedings that had been brought in the Federal Court arising from non-payment of costs the subject of costs orders in this Court.
The better view is that r 7.36(2A) is not engaged in those circumstances. The better view is that the reference in that rule to a "previous referral" is to a referral under r 7.36. I am not aware of any authority on that question. If that view is wrong, nonetheless I think there are special reasons to justify a referral.
The first applicant assures me that the date given in his affidavit of 31 January 2018 was a mistake and that the date he should have stated was 31 January 2016. If that is correct then sub r 2A is not engaged on any view.
Having regard to the different subject matter of the referral in the Federal Court, relating as it did to bankruptcy proceedings, and also to the perhaps complex questions that might arise on the hearing of the appeal in this Court, I would be satisfied that there are in any event special reasons to justify a further referral.
There is a question as to whether the referral should be to a barrister or solicitor or both. On 15 May 2019 the registrar made orders that the white folder filed by the appellants and the white folder filed by the second, third and fourth respondents in respect of the application for leave be treated as the Red, Black and Blue sections of the Appeal Book. The Registrar also directed that the respondents have the carriage of the preparation of the Orange Book. The respondents are to serve a draft index of the Orange Book and the appellants are to provide a response to that draft index. The provision of such a response and the preparation of the written submissions and any alternative chronology are matters which would appropriately be attended to by a barrister on the pro bono panel, as is the representation of the applicants on the appeal.
Beazley P was rightly concerned that the resources of the pro bono panel should not be abused. There is an obligation of the court to exercise discretion in making orders under r 7.36. For the reasons I have explained, in particular by reason of the grant of leave to appeal, I am satisfied that the interests of justice require the applicants to obtain pro bono assistance.
In the course of the applicants' submissions I explained to them that if a barrister from the pro bono panel is retained to appear for them on the hearing of the appeal, the barrister will have an overriding duty to the court to put only those submissions which he or she thinks can properly be put; and this may well not extend to all of the matters that the applicants would seek to have put before the court. I consider that the applicants have understood what I have said to them in that regard, and they nonetheless persist with their application for such a referral.
There is no reason to make an order to stay the present proceeding on appeal pending the appointment of the barrister from the pro bono panel. The appeal is listed for hearing on 30 August 2019 and there is ample time for such a person to be appointed, if a barrister on the panel does agree to accept the referral.
For these reasons I make the following order:
1. Order that the applicants be referred to the registrar for referral to a barrister on the pro bono panel for legal assistance, such legal assistance to be by way of:
1. provision of advice in relation to the applicants' notice of appeal, the respondents' notice of contention and in respect of any application for leave to appeal from order 1 made by Pembroke J on 8 June 2018 if the applicants succeed on their notice of appeal;
2. preparation of written submissions for the appeal and the doing of such other things as may be required to comply with the directions concerning the second to fourth respondent's preparation of the Orange Book; and
3. appearing for the appellants on the hearing of the appeal.
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Decision last updated: 05 June 2019