Iqbal v Hotel Operations Solutions Pty Ltd

[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

1. MEAGHER JA: By his notice of motion filed on 31 May 2022, the applicant, Mohammed Iqbal, seeks an order for pro bono "legal assistance" under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 7.36.
2. In Renshaw v NSW Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10]-[12], Brereton JA observed in relation to the requirement in r 7.36(1) that the court be satisfied that referral is in the "interests of the administration of justice": "…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]