Liristis v Gadelrabb

Judgment 1TOBIAS AJA: The dispute in this matter involves premises at xxx xxxx xxxxxxx xxxx Penshurst (the premises). The applicant, Mr Liristis, who represents himself, occupies the premises which are owned by Ms Julia Gadelrabb, the respondent. 2On 20 June 2011 Ward J in the Equity Division of the Court ordered that the applicant vacate the premises six weeks from that date and granted leave for a writ of possession to be issued and executed for that purpose on 1 August 2011. Her Honour made other consequential orders, which, together with the leave to issue a writ of possession, were stayed by Basten J on 20 July 2011. 3On about 8 July 2011 the applicant filed a summons seeking leave to appeal from the orders of Ward J. That summons seems to have had a lengthy history in terms of it being allotted a hearing date, but the long and the short of it is that it is set down for hearing on Thursday 17 May next. 4After the summons was filed the applicant lodged an application with the Legal Aid Commission (the Commission) for a grant of legal aid pursuant to s 34 of the Legal Aid Commission Act 1979 (the Act). That application was refused on 3 November 2011. On 8 November 2011 the applicant lodged with the Commission a document advising that he intended to appeal that refusal to the Legal Aid Review Committee (the Committee). The document also indicated an understanding on the part of the applicant that legal aid at that stage would not be granted because he was unable to supply information which the Commission had requested, this being due to the fact that he did not at that time have access to his files. On page 2 of the document he said that he would forward his appeal documents as urgently as he could. 5It would appear that an appeal to the Committee pursuant to s 56(1)(a) of the Act was eventually lodged by the applicant with the Commission on 1 May 2012. Following the lodging of that appeal, the applicant filed a notice of motion on 2 May 2012 seeking an order vacating the hearing date of the summons for leave to appeal from the decision of Ward J which, as I have said, has been fixed for 17 May next. 6I interpose that the matter came before Young JA, sitting as the referral judge on 11 November 2011. According to the Associate's Record of Proceedings which is in the Court file, his Honour adjourned the application for leave to appeal which had then been fixed for hearing on 24 November 2011, in view of what is referred to in that document as the pending legal aid review application. The applicant asserts that his Honour vacated the hearing as he was required to do by s 57 of the Act in accordance with s 57(a)(ii) the applicant had filed an intention to appeal which appeal was "competent" as required by that provision. There may be some difficulty with this proposition given the terms of s 56(2)(a) of the Act unless there be evidence of an extension of time by the Committee pursuant to s 56(2)(b). 7Unfortunately it has not been possible to ascertain whether Young JA delivered a judgment and, if he did, to obtain a copy of it. It is possible that he adjourned the summons for leave on the basis asserted by the applicant. On the other hand it is also possible that he adjourned the matter at his discretion upon the ground that it would not be fair to the applicant for the matter to be heard on 24 November as he had twenty-eight days from 3 November in which to file an appeal with the Commission which period would not have expired by 24 November. However I do not think in the circumstances I had to resolve the issue as to the true basis upon which Young JA adjourned the leave application on 11 November last. What is apparent is that as the appeal was not lodged until 1 May 2012, prima facie it would appear to be out of time. However in his letter of 1 November to the Commission the applicant requested that it email by return stating that it had received his application to appeal. 8In an email of 4 May 2012, received by the applicant this morning and tendered to the Court without objection (and which I will mark as Exhibit "A"), Mr Nicholas Koutras, the Legal Officer of the Grants Division of the Commission, wrote to the applicant under the subject heading "Appeal Against Refusal of Legal Aid to the Legal Aid as Discussed" and stated as follows: "Thank you for your email dated 1 May 2012. I acknowledge receipt of your appeal to the Legal Aid Review Committee. I confirm that your application for Legal Aid is now in the process of being redetermined by Grants Division. The redetermination process will take approximately 3 - 4 weeks, if the decision to refuse aid is upheld, the matter will then be forwarded to the Legal Aid Review Committee to be considered at its next meeting". 9I was informed from the bar table that the Committee meet monthly. There is no suggestion in Mr Koutras' letter that the appeal to the Committee dated 1 May 2012 is incompetent for failing to comply with the provisions of s 56(2)(a). Nor is there any indication that the Committee has extended the period within which the appeal could be filed pursuant to s 56 (2)(b) of the Act. It is not apparent whether the Committee has considered that issue at all. Nevertheless the document makes clear that the appeal is in the process of being determined. If it is granted, then it seems to me that the applicant should be entitled to take advantage of any such grant for the purposes of prosecuting his application for leave to appeal from the decision of Ward J. 10I accept the submission of Mr Webb on behalf of the respondent that the document is unsatisfactory, at least insofar as it does not address the issue of competency and, in particular, does not address the issue as to whether the Committee has extended time within which the appeal may be lodged pursuant to s 56(2)(b) of the Act. However as I have indicated, the document in its present form does indicate that the appeal against the refusal of legal aid has been accepted for the purpose of being processed and redetermined. 11In those circumstances the position with which I am faced is not dissimilar to that with which Young JA was faced last November. In my opinion the process with respect to the determination of the applicant's appeal by the Grants Division or the Committee should be allowed to run its course. Accordingly, in my view the hearing of the summons for leave to appeal fixed for 17 May next should be vacated to allow that to occur. 12However, it may well be that the respondent can approach the Commission for the purpose of ascertaining its position with respect to the competency of the appeal and/or for the purpose of being informed as to the ultimate decision of the Grants Division or the Committee depending upon which body ultimately determines the appeal. It is not entirely apparent how long it will take for this process, which is currently underway, to take. It could take approximately two months. As at present advised, I would not think it appropriate to refix the hearing of the summons for leave at this point, although there should be liberty to apply to either party on twenty four hours written notice to the other to the Registrar for the matter to be refixed for hearing when the decision of the Commission and/or Committee is known. In this respect I will seek from the applicant an undertaking to the Court first, that he will expeditiously provide any information to the Commission that it seeks in order to deal with his appeal and, secondly, that upon being informed as to the progress of his appeal, including any decision to either grant or refuse it, he will immediately notify the respondent's solicitor of that information. 13The formal orders I make are as follows: (a)The hearing of the summons for leave to appeal, fixed for 17 May 2012 is vacated. (b)I grant either party liberty to apply to the Registrar to obtain a new date for hearing of the summons for leave to appeal on twenty four hours written notice when the result of the applicant's appeal against the refusal of the Commission to provide him legal aid has been determined and communicated to him. (c)I note that the applicant undertakes to the Court first, that he will expeditiously provide the Commission with all information it requires in order for it to determine his appeal and, secondly, that upon receiving any information from the Commission with respect to the determination of his appeal that he will immediately communicate that information to the respondent's solicitor. (d)The costs of the notice of motion will be costs in the summons for leave to appeal. (e)In the notice of motion the applicant has sought a review of some orders for costs made by the Registrar, I stand that part of the notice of motion over generally and it can be restored on seven days notice.