HIS HONOUR: There are three applications before the Court today, one by the plaintiff and two by the defendant.
The plaintiff makes an application pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 for referral to a barrister or solicitor on the pro bono panel for legal assistance. The defendant makes an application for dismissal of the proceedings for want of due despatch pursuant to r 12.7 UCPR and, alternatively, for security for costs. The latter is purportedly made under r 51.50 although that is inapt.
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History of the proceedings
The applications are best understood in the context of the history of the proceedings, which is quite lengthy. I derive much of what follows from the chronology annexed to the affidavit of Mr Khan, solicitor for the defendant.
The matter commenced on 24 August 2005 with a statement of claim filed in the Local Court by the plaintiff. The claim concerned a $15,000 loan that was, on his case, made to the defendant in 1998. It was asserted that there was a sum of about $12,000 outstanding in 2005. Default judgment was entered on 28 September 2005.
It is said that within the next ten years or so, various enforcement actions were commenced by the plaintiff, seemingly to no avail.
On 20 April 2015 the defendant filed a notice of motion to set aside the default judgment which was successful. The judgment was set aside on 14 May 2015.
It is unnecessary to recount all that happened thereafter but ultimately the matter was set down for hearing on 1 August 2016. On that date it appears from the evidence (not only from Mr Khan's affidavit but also from Mr Hussain's affidavit of 30 October 2017) that Mr Hussain appeared at Court but experienced a heart problem which resulted in him being taken to hospital by ambulance. For that reason the hearing on that date was unable to proceed.
Shortly afterwards, the defendant filed a notice of motion to dismiss the proceedings and the matter came before Magistrate Greenwood on 18 August 2016. Her Honour granted the application, dismissed the proceedings and ordered that the plaintiff pay the defendant's costs. I am told by Mr Khan from the Bar table that her Honour granted the application on a review of the merits of the case, and I am told she came to the view that it was lacking in merit; the term "vexatious" was also used.
In September 2016 Mr Hussain mistakenly commenced appeal proceedings in the District Court. I understand his explanation for this as being that he was given incorrect advice by Registry counter staff. On 30 January 2017 the matter was before the District Court. The summons was withdrawn and the plaintiff was ordered to pay the defendant's costs.
On 14 February 2017 the proceedings by way of appeal from the Local Court were commenced in this Court by the filing of a summons. The affidavit of the plaintiff filed with the summons discusses the circumstances of how the matter came to be dismissed in the Local Court on 18 August 2016.
The appeal to this Court is brought under the Local Court Act 2007 (NSW). Section 39 provides for appeals as of right from the Local Court sitting in its General Division (and I take these proceedings to have been in that division) but such appeal as of right is only available on a question of law. I do not understand this appeal to be concerned only with a question of law. It seems that the appeal is brought under s 40 on a ground that involves a question of mixed law and fact, but only with leave.
I gather - and I say that because it is not entirely clear - that Mr Hussain is asserting a denial of procedural fairness which seems likely to involve a mixed question of law and fact.
The matter has been before Registrar Bradford on about half a dozen occasions since the summons was filed. Orders have been made on various occasions for Mr Hussain to apply for transcripts of the Local Court proceedings and to file and serve affidavit evidence and a copy of any proposed amended summons. On 30 June 2017 the matter was listed for hearing on 23 November 2017.
Mr Hussain informed me today that he has the transcript of the proceedings before Magistrate Greenwood but he has not yet provided it to the defendant's solicitor. He said he would (and I indicated that he should do so today or by the latest tomorrow).
No evidence has been filed and served and nothing has come of the suggestion of there being an amended summons. Mr Hussain's explanation for that non-compliance is that he has experienced significant health problems. There are various medical certificates within the papers relating to heart problems Mr Hussain has experienced, and I understand he underwent a procedure on 23 August this year in relation to them.
On 24 August 2017 Mr Hussain filed the notice of motion seeking referral to pro bono lawyers.
Mr Khan, on behalf of the defendant, filed the notice of motion seeking dismissal or, alternatively, security for costs on 24 October 2017.
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Evidence
Mr Khan deposes in his affidavit as to Mr Hussain's non-compliance with the orders made by Registrar Bradford on 30 June 2017 as to affidavit evidence, an amended summons and provision of transcript. He sets out in detail the procedural history of the matter in the lower courts. He also refers to there having been numerous costs orders made against the plaintiff in the Local and District Court, and annexes some costs certificates in relation to the District Court order.
Mr Khan also annexes to his affidavit an estimate of costs for the current proceedings of $19,690. That is relevant generally but also specifically to his application for a security deposit of $10,000 before the matter proceeds to hearing on 23 November 2017.
[4]
Application for referral for pro bono legal assistance
Dealing with the application for referral to the pro bono legal panel, r 7.36 enables referral if the Court is satisfied that it is in the interests of the administration of justice and it indicates that the Court may take into account a number of relevant matters.
The first matter to consider is Mr Hussain's means. Mr Hussain informed me from the Bar table, as well as via his affidavit of 30 October 2017, that he is indigent. He said in the affidavit he has no regular income and he has quite real financial hardship "to engage a lawyer to represent [his] case". I am prepared to accept that, although I note there is some inconsistency in what Mr Hussain said about his financial circumstances in late 2015.
When he was before Adamson J seeking pro bono referral in other proceedings on 3 December 2015, he apparently informed her Honour that he had no assets other than his and his wife's interests in a company which owned three taxis. He informed her Honour that the taxi business is no longer profitable; see MM International (Australia) Pty Ltd v Workers Compensation Nominal Insurer [2015] NSWSC 1846 at [12].
That seems contrary to an affidavit that Mr Khan referred me to that was affirmed by Mr Hussain on 9 December 2015 (six days after he appeared before Adamson J for the above matter) in which Mr Hussain said at [23] that he personally owned three taxi vehicles whose collective value was in the order of $70,000. He also said that those taxi vehicles operated in the Australian Capital Territory through an affiliate company and each derived a profitable income. He also said that he did not owe any money on property or on the taxi vehicles.
Be that as it may, as I have said, I am prepared to accept that Mr Hussain is indigent.
Another matter to take into account is the capacity of Mr Hussain to obtain legal assistance outside the pro bono scheme. He informed me today that he has made enquiries of two solicitors and two barristers, but each has informed him of a need for money to be paid in advance before they would be prepared to act, and Mr Hussain claims that he is unable to do so because of his financial circumstances.
The nature and complexity of the proceedings is another matter to be taken into account. As I have indicated, the appeal will apparently turn on a mixed question of fact and law. If my understanding that it will primarily concern a denial of procedural fairness is correct, that seems to be a largely factual issue that will need to be established for the Court to determine whether that denial is in fact made out. I accept that Mr Hussain would probably not grasp the detail of the concept of denial of procedural fairness, but I would envisage he would be capable of establishing the factual basis upon which it may or may not be made out.
Any other matter the Court considers appropriate may be considered. One particular matter that pervades these proceedings is the ongoing apparently serious heart problem that Mr Hussain experiences. His ability to cope with the stress of litigation would be relevant and it would certainly be of assistance to him if he had a lawyer advising and appearing for him.
Rule 7.36(2A) provides that the Court may not refer a litigant for assistance 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. Adamson J, in the judgment I referred to earlier, did make a referral. However, it was not in relation to this case; it was in another case concerning workers compensation. Mr Hussain informed me that he had contact with a lawyer as a result of that referral, but was in effect told that he should appear for himself, and he said that he did so before Rothman J in this Court. I gather from what Mr Hussain said that in some fashion the proceedings were brought to an end in a way that was favourable to him.
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Determination
Ultimately the question turns on whether it is within the interests of the administration of justice that a referral be made.
I take into account the very long history of the matter, not so much in this Court, but generally, going back as it does to 2005 and relating to an asserted loan transaction in 1998.
I take into account Mr Hussain's non-compliance with the orders of the Registrar, but am mindful of the health problems that are said to explain that non-compliance. I note that Mr Hussain indicated that the hearing date of 23 November 2017 had been set by Registrar Bradford so long in advance because he took into account the health difficulties that Mr Hussain was experiencing.
I am concerned that referral would almost surely guarantee that the hearing on 23 November would not proceed. It would seem most unlikely that a lawyer could be found who was prepared to take on Mr Hussain's case and who, in the next 16 days, would have the time to confer with and advise Mr Hussain, potentially prepare the matter for hearing, and appear at the hearing. That prospect is quite doubtful.
Having regard to all of those matters, particularly the very long history of the matter and my assessment (albeit on the limited material before me) that it would not be beyond the ability of Mr Hussain to make out the factual basis for the question of mixed law and fact that he needs to establish in relation to the appeal, I am not satisfied that it would be in the interests of the administration of justice to grant the application for referral to the pro bono panel.
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Applications for dismissal and, alternatively, security for costs
Turning to the application to dismiss brought by the defendant on the basis that there has been a lack of due despatch, the proceedings have been on foot in this Court for less than a year, about nine months to this stage. There has only been the one hearing date set and it is imminent. In my view the circumstances at present are not sufficient to take the rather drastic step of dismissal for want of due despatch.
As for the application for security for costs, the application is purported to be brought under r 51.50. However Part 51 is concerned with the Court of Appeal. Mr Khan was not able to readily identify an alternative rule. There is r 41.21 but I cannot presently see how the application can be brought within its terms.
In my view the appropriate course to take would be to defer ruling upon the applications by the defendant; to leave the matter listed for hearing on 23 November 2017; and to leave it to Mr Khan to re-activate those applications if it is considered that the circumstances have changed and either or both of the applications obtain more merit than they presently appear to have.
In relation to the security for costs application, I am mindful of the expense that the defendant has endured to date and will endure further if the matter proceeds to hearing. The practical difficulty is that, if I was to make the order, it would be incapable of being complied with by Mr Hussain. I think that is a matter that might be best considered on 23 November, if necessary, rather than being imposed at this stage.
For those reasons the application for referral to the pro bono panel is refused and the applications for dismissal for want of due despatch and for security for costs are not determined.
(On revision of this ex tempore judgment I note that no order as to costs was made. I simply record that no application was made by either party.)
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Decision last updated: 17 November 2017