Foundas v Arambatzis [2023] NSWSC 1329 | Case summary

Supreme Court of NSW|2023-10-26|Before: Rees J, Brereton J

Solicitors: Cassiani Foundas (Plaintiff) (In person) Cutri & Associates (First Defendant) William Robert Lawyers (Second and Third Defendants) File Number(s): 2021/297960

EX TEMPORE JUDGMENT

HER HONOUR: This is an application by the plaintiff, Cassiani Foundas, for referral to a barrister or solicitor under rule 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). According to her affidavit, Ms Foundas seeks a referral on the grounds of having a lack of understanding and expertise which would allow the trial to flow in good stead. Ms Foundas said she has no experience, is not privileged and is in hardship on a pension. Further, "I understand I have had some help in the past and very grateful for that but if I never had such help I would be prejudiced and subjected to unfair and barbaric bias. I have a right to fight and save my home."
The first defendant, Peter Arambatzis, neither consents nor opposes the application but relies on an affidavit of his solicitor, Frank Cutri, detailing of previous referrals. The second and third defendants, Sean Wengel and Robert Whitton, and neither consent nor oppose and called no evidence.

Principles

Rule 7.36 of the Uniform Civil Procedure Rules 2005 relevantly provides: (emphasis added) (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.
Rule 7.36(2A) is relevant here, where Ms Foundas has obtained assistance under a previous referral within the last three years. In such circumstances, a referral may only be made if the Court is satisfied that there are 'special reasons' for doing so.
As to why "special reasons" are needed, Brereton J (as his Honour then was) explained in Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 at [11]: The success of the [pro-bono referral] 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. Followed in Maxwell-Smith v S & Hall Pty Ltd [2013] NSWCA 397 at [11] (per Sackville AJA).
As to what is meant by "special reasons," the discretion of the Court is very wide but it must have as its basis some circumstance which it can reasonably regard as special reasons for lifting the particular circumstances out of the usual: Serobian v Commonwealth Bank of Australia [2010] NSWSC 1165 at [32] (per Hallen AsJ, as his Honour then was).
If a barrister or solicitor agrees to accept a referral, they must provide assistance to the litigant in accordance with the referral: rule 7.38, UCPR. Where the referral is for general representation in relation to the conduct of proceedings, the barrister or solicitor's acceptance of the referral gives rise to an obligation to provide ongoing assistance: Arambatzis v Foundas (No 3) [2021] NSWCA 189 at [9]-[14] (per Brereton JA).
Having accepted a referral, the barrister or solicitor may cease to act in accordance with rule 7.39(1), which relevantly provides: 7.39 Cessation of assistance (1) A barrister or solicitor who has agreed to accept a referral may cease to provide legal assistance to the litigant only - (a) in the circumstances set out in any practice rules governing professional conduct that apply to the barrister or solicitor, or (b) with the written agreement of the litigant, or (c) with the leave of the registrar.
A barrister or solicitor may seek leave to cease to provide legal assistance by applying to the Registrar in writing: rule 7.40, UCPR.

Previous referrals

On 1 March 2021, Ms Foundas was referred for pro bono legal assistance by Brereton JA in related proceedings: Arambatzis v Foundas [2021] NSWCA 728.
On 1 June 2021, the matter came before his Honour again. Notwithstanding the referral, Ms Foundas appeared in person. Brereton JA enquired what had happened: HIS HONOUR: … You were given a referral for pro bono assistance, and I don't understand why you are not availing yourself of that. APPLICANT: …[the person] that I dealt with from the Bar Association was very - we didn't see eye to eye and he never took off the grant because he was very rude to me; he wasn't listening to what I was saying, and we didn't see eye to eye. In this world, we can't always get along with all the barristers that come along. I tried very hard but we couldn't go any further with his assistance. … We had two phone calls and that's it. … he wouldn't listen to me. That was about it. It didn't go any further. This is why I would like you - like and order to go through the Bar Association again just to try and maybe get someone who will understand me a little better. Otherwise, I feel I'm going to be disadvantaged.
Of this, Brereton JA observed in Arambatzis v Foundas (No 2) [2021] NSWCA 125 at [5]: … the counsel [Ms Foundas] identified is a very senior and experienced equity practitioner. She says that they did not establish a good working relationship, and although she did not say so expressly, I infer that she terminated the practitioner's assistance. This is most regrettable, given that she was afforded the benefit of a pro bono referral, and given also that a second pro bono referral can, by reason of UCPR, r 7.36(2A), be ordered only for special reasons.
His Honour was satisfied, however, that "special reasons" existed to make a second referral, where the barrister might not have had a copy of his Honour's judgment of 1 March 2021. The second referral was for legal assistance generally in relation to the proceedings.
In October 2021, Ms Foundas commenced these proceedings. Ms Foundas was represented by Mark Seymour of counsel pro bono. Mr Seymour and Chris Koikas of counsel also represented Ms Foundas pro bono in related proceedings in the Court of Appeal, heard in May 2022.
In November 2022, Mills Oakley Solicitors filed a Notice of Appearance in these proceedings, acting for Ms Foundas on a pro bono basis. Directions were made for the parties to file evidence, which was duly done. On 27 February 2023, the Registrar noted that all evidence had been served and listed the matter for hearing for five days from 6 to 10 November 2023.
On 6 March 2023, Mills Oakley filed a Notice of Intention to File a Notice of Ceasing to Act. Such a notice must be served on the client, Ms Foundas: rule 7.29(2), UCPR. On 12 April 2023 Mills Oakley filed a Notice of Ceasing to Act. Such a notice must also be served on the client: rule 7.29(1), UCPR.
On 13 October 2023, Ms Foundas filed this present application, being three weeks before the commencement of the trial.

Submissions

Ms Foundas submitted that there are various 'special reasons' in this case. Ms Foundas lacks knowledge of the law and requires assistance to know which witnesses to call or documents to tender during the trial. Ms Foundas requires emotional support to assist with her mental health. Ms Foundas is concerned that, without legal representation, she will not be heard. Ms Foundas is experiencing general hardship and is on a pension.
While the defendants neither consented nor opposed the application, they expressed concern that, if a referral is made, it is likely that any pro bono representative will need further time to prepare for the hearing. This may lead to a vacation of the hearing, with attendant wasted costs.
To this, Ms Foundas submitted that, if she was required to run the trial without legal assistance, she would appeal on the basis that it was unjust and unfair to proceed in this manner and may further appeal to the High Court of Australia. It was said to be in the interests of justice, and cheaper overall, to permit any adjournment of the trial than to go through such an appeal process. (I do not necessarily accept that the provision of pro bono assistance will mean that the trial will be the last of this litigation: Maxwell-Smith v Hall at [10]).

Consideration

I am not satisfied that Ms Foundas has established "special reasons" to make a further referral under rule 7.36. I have two main concerns in this regard.
First, Ms Foundas has had the benefit of pro bono assistance in these and related proceedings for almost two years. However, Ms Foundas has not explained in her affidavit how it was that the pro bono assistance ceased, in particular, when Mills Oakley ceased to act in April 2023. There is no suggestion that the solicitor applied to the Registrar under rule 7.40. Nor did I get the impression that Ms Foundas agreed to the solicitor ceasing to act. I infer, therefore, that the solicitor ceased to act as they considered it appropriate in accordance with the professional rules which govern their conduct: rule 7.39(1)(a), UCPR. Professional conduct rules permit a solicitor to cease to act, for example, where the solicitor is not provided with instructions on a timely basis or where the solicitor's advice is not being followed. I infer that something along those lines occurred here. Absent an explanation as to how it was that the last referral came to an end, I am reluctant to make a further referral.
Second, notwithstanding that the solicitor ceased to act six months' ago, it is not until very recently that Ms Foundas brought this application. There is no explanation in Ms Foundas' affidavit as to why no steps were taken until recently to obtain a further referral. In determining this application so close to trial, I must weigh up the interests of all parties to these proceedings. As a practical matter, making a referral at this stage will likely imperil the trial.
I am not satisfied that "special reasons" exist to make a third referral. Case management considerations also point against making such an order at this late stage. Whilst I would be greatly assisted if Ms Foundas was legally represented, I will have to do without this assistance, as will Ms Foundas. For these reasons, I dismiss the notice of motion filed on 13 October 2023 with costs.

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 November 2023

Uniform Civil Procedure Rules 2005(NSW)rr 7.36, 7.38, 7.39, 7.40

Foundas v Arambatzis

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