Odlum v Friend

Judgment

1. By a notice of motion filed on 1 March 2022 the plaintiff seeks an order pursuant to r 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") that she be referred to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance, and an order that the hearing date for a statement of claim that was filed by her on 4 December 2017 be vacated. The hearing is listed for four days, commencing on 28 March 2022. The application in respect of both orders is opposed by the defendants.
2. The first defendant was retained by the plaintiff as her solicitor in proceedings in the Equity Division in 2011 and the second defendant was her counsel in those proceedings, which concerned a property dispute with her former de facto spouse. The nature of the plaintiff's claim against the defendants is an allegation that they were negligent and provided her with misleading and deceptive advice, contrary to s 42(1) of the Fair Trading Act 1987 (NSW).
3. Six months after filing her statement of claim, on 23 May 2018, the plaintiff's solicitors filed a notice of intention of ceasing to act. On 7 September 2018, R A Hulme J heard an application by the plaintiff for pro bono assistance, pursuant to r 7.36 of the UCPR, which relevantly provides: "7.36 Referral to a barrister or solicitor (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."
4. His Honour approved a referral initially for advice as to the merits of the plaintiff's claim and, if it had merit, to representation generally in the proceedings. Counsel was appointed and provided advice to the plaintiff. However, on 27 June 2019, she filed a notice of motion seeking a further referral for pro bono assistance. On 8 August 2019, Rothman J approved her application.
5. In November 2019, a solicitor and counsel appeared for the plaintiff, seeking an extension of time to review documents. On 3 December 2019, the solicitor filed a notice advising that she had been appointed to act for the plaintiff in the proceedings. On 9 April 2020, she filed a notice of ceasing to act. On 15 March 2022, the matter was set down for hearing on 2 November 2021. In March 2021, mediation occurred and did not resolve the matter.
6. On 19 April 2021, Bellew J heard a third application by the plaintiff for a referral for pro bono assistance: Odlum v Stephen Friend t/as Friend & Co Lawyers and anor [2021] NSWSC 577. The plaintiff advanced two bases for a finding that there were "special reasons" that justified a further referral, pursuant to r 7.36(2A) of the UCPR, which were that she is in receipt of a disability support pension and thus has no financial capacity to retain lawyers privately, and that she is not legally qualified and is unaware of the principles, practices and procedures of the Court which would be adopted at the hearing. His Honour found that the reasons did not constitute special reasons and refused the application, noting as follows: "26 I have already noted the two principal bases upon which the plaintiff relies in support of the orders sought. In my view neither of those bases, whether they are viewed singularly or in combination, amounts to special reasons for the purposes of r 7.36(2A). The plaintiff's financial position is necessarily one which is confronted by most, if not all, applicants for orders under r 7.36. The same could be said for the plaintiff's lack of familiarity with the law. 27 Over and above that, there are further factors which inform the exercise of the Court's discretion in the present case. Perhaps the most obvious is the fact that the plaintiff has had the benefit of not one, but two previous referrals. Whilst it is not entirely clear what occurred as a consequence of those referrals, neither resulted in the plaintiff obtaining much, if anything, in the way of assistance. Whilst the first referral apparently did result in the provision of advice, it seems that the plaintiff may not have accepted that advice. All that is known about the more recent referral is that, at least according to the legal practitioners involved, they were unable to obtain cogent instructions from the plaintiff. Whilst I accept that the plaintiff disputes that to be the case, and whilst I was at pains to ensure that the plaintiff did not disclose to me anything in the course of the hearing which might be privileged, the simple fact is that in the light of the history of the two previous referrals there is a clear indication that a third referral is likely to be largely, if not completely, lacking in utility. 28 I accept that as a litigant in person in a complex matter, the plaintiff is in a difficult position. I have no doubt that that is what RA Hulme J and Rothman J took into account when they made their previous orders. However, for the reasons that I have outlined, I am not satisfied that the matters advanced by the plaintiff constitute special reasons for the purposes of the rule. 29 Further, and at the risk of stating the obvious, these proceedings were commenced almost four years ago. The cause of action to which they relate arose almost ten years ago. The Court must ensure, as far as it can, that the hearing of this matter proceeds on its scheduled date. As the first defendant has submitted, there is an obvious concern that the hearing date will be jeopardised in the event that the orders sought are made. Whilst that is not conclusive, it is a factor which, in the circumstances of this case, informs the exercise of the discretion."
7. The day before the hearing date, the applicant filed a notice of motion in which, for the fourth time, she sought a referral for pro bono assistance, as well as an order that the hearing be vacated. It was heard before Schmidt AJ: Odlum v Stephen Friend t/as Friend & Co Lawyers and anor (No 2) [2021] NSWSC 1408. Her Honour outlined the plaintiff's submissions as to "special reasons", and declined the application for a referral for pro bono assistance: "24 [The plaintiff's] view was that it was not fair that she was unrepresented in the proceedings which she has brought, when the other parties were legally represented; that she did not consider herself to have the capacity to adequately represent herself; and that she had never envisaged that she might have to. This was, of itself, not a proper basis for any further referral, nor could it establish the necessary special reasons for such a referral. 25 [The plaintiff's] no doubt took a risk in bringing the proceedings in circumstances where she could not finance legal representation, but unfortunately, many litigants find themselves in that difficult position. Nothing which she advanced established that her circumstances had altered in any relevant way, since her last application for referral for pro bono assistance was refused. 26 [The plaintiff] was aware from the directions hearings before Bellew J of what she had to do by way of preparation for the hearing. That required her to comply with the orders which bound her and if she wished to revisit those orders, or seek further orders, she had to make a timely application to move the Court, in the usual way, by motion supported by affidavit. 27 In the result, given her very late application for a further referral and the adjournment which it would necessitate, if granted, I was satisfied that this further application for referral again had to be refused."
8. In support of her application for an adjournment, the plaintiff referred to her mental health, which Schmidt AJ noted, at [34]: "[The plaintiff's] affidavit referred to her health problems and various medical advice which she had sought. But her application was only supported by a medical certificate of 22 October from the Women's Health Centre Ltd, which indicated that she suffered from anxiety and depression and was involved in a stressful court case. So much could be accepted, but that did not explain [the plaintiff's] ongoing failures to comply with the Court's orders, or her very belated adjournment application."
9. The application for an adjournment was refused, however, in view of the plaintiff's distress, ultimately a fresh hearing date was set.
10. The present application, which is the plaintiff's fifth application for a referral for pro bono assistance and a further adjournment, in the form of the notice of motion, was filed ten days prior to the hearing date which, as I have noted, is on 28 March 2022. Annexed to a supporting affidavit by the plaintiff are multiple brief psychological reports. The first in time is by Associate Professor Dr Scott Whyte, dated 26 July 2011. Dr Whyte noted that the plaintiff presented with "a history of impaired thinking, concentration, and memory impairment", although had completed a teaching degree. He also noted that she had seen "a number of psychologists in the past". He recommended that she engage in cognitive behavioural therapy.
11. The next report was by Christine Kipps, clinical psychologist, and is dated February 2013. She had been consulting with the plaintiff since August 2011, "largely in connection with her anxiety and distress over the constant court appearances" concerning the proceedings in the Equity Division.
12. Two reports by Anne Keniry, psychologist, are attached. In the first report, dated 14 March 2021, Ms Keniry stated that she had seen the plaintiff briefly in 2011 and then for counselling since December 2020. Ms Keniry stated: "[The plaintiff] has a long trauma history and can easily be triggered. If [the plaintiff] is under stress and she feels pressured, blamed, under threat or attack, bullied, very anxious or overwhelmed she freezes as part of being in the fight or flight mode. This makes representing herself adequately very difficult as [the plaintiff] has difficulty with reading, concentration, memory, answering questions or presenting her case coherently. Being told what to do in a demanding or condescending manner will also trigger [the plaintiff]. Her ability to function is also worsened by lack of sleep and low mood which can follow being triggered or anxious. [The plaintiff] needs time to process information she receives. [The plaintiff] writes things down to help herself process information, events etc. and will need to refer to her writings if triggered. [The plaintiff] is, at times, overwhelmed by the issues and data and can't make her submissions or responses succinct and simple as she believes it is all relevant and cannot distil things. This is due to her needing context and sometimes explanation or information in order to comprehend the premise of the questions put to her. [The plaintiff's] mind works in that she sees a vast array of connections and possibilities in information or questions given to her. … [The plaintiff] needs the options available described to her along with the risks and benefits and then quite a period of time to process them where she is likely to need her questions answered. This is a function of her cognitive processing."
13. In her second report, dated 27 January 2022, Ms Keniry stated: "[The plaintiff] has disabilities. [The plaintiff] suffers from PTSD due to a long term abusive domestic violence relationship and she is on the Autism spectrum. Both of these make it almost impossible for [the plaintiff] to self-represent while facing 5 legal practitioners in court, in a very complex case. [The plaintiff] requires lots of time to process information and she finds it difficult to immediately respond to questions in court as she needs time to consider all the complexities and has difficulty picking out the important aspects of a question and retrieving her memory. [The plaintiff] also has difficulty working out what questioners want in their answers as her interpretation of questions can be a little different, as it is for most people on the autism spectrum. People on the autism spectrum often have an underlying generalised anxiety disorder, as [the plaintiff] does, which combined with an easily triggered flight/fight/freeze/please response from years of domestic abuse including bullying means that [the plaintiff] is almost certain to have a similar reaction if placed in a similar situation again where she feels overwhelmed facing numerous legal representatives in court while she remains unrepresented People with PTSD often shut down when overwhelmed after their trauma reaction is triggered. They then need a lot of time to calm themselves so that their frontal lobe which has switched off due to the trauma exposure can function again. An adversarial court situation is difficult for them at the best of times, let alone unrepresented against a number of experienced lawyers/barristers. [The plaintiff] is triggered by even reading the submissions and feels that she is being put on trial. [The plaintiff] will not be able to sustain cross examining witnesses who are legal practitioners as that will simply trigger her PTSD response. It will not be possible for [the plaintiff] to record the responses of the defendants even if she did manage to cross examine them and this will impair her ability to make her case. [The plaintiff] will need legal support to enable both sides of this matter to be adequately explored in court."
14. Ms Keniry's most recent report is the only psychologist's report before me that has a diagnosis of the plaintiff being on the autism spectrum or suffering from a post-traumatic stress disorder ("PTSD").
15. In her affidavit, the plaintiff relies on that report as the basis of her submission that there are "special reasons" for the Court to make a further referral for pro bono assistance, stating: "I ask that the court consider that I have mental and neurological conditions, especially PTSD and autism spectrum disorder, that affect my ability to prepare for and function unsupported in legal proceedings. I am unwell. I need support that I currently do not have to get a fair hearing in Australia's legal system. I attached evidence of my disability and impairment. I cannot provide 'a legal argument' at this time: I can only suggest that the Australian Constitution and several United Nations Conventions, including the Convention on the Rights of Person with Disability, indicate that people deserve fairness in legal systems. People with disability typically need appropriate adjustments to get fair treatment in legal processes. I need time and legal support to prepare my case and during legal proceedings."
16. By letter dated 9 March 2022, the defendants informed the plaintiff: "The defendants position is that the hearing should proceed on 28 March 2022. If you do not have legal representation at the hearing, the defendants will propose to the Court that a number of arrangements be put in place: 1. Given your statement that you need for time to process information - the defendants suggest that the timetable for the hearing be arranged to allow you regular breaks during the hearing. The suggestion is a truncated hearing. As the plaintiff, you commence your case. This involves you telling the Court what affidavits that you have filed and served that you wish to rely upon, and the defendants' lawyers cross examine you in relation to your evidence. It is proposed that your evidence will commence on day one of the hearing (28 March 2022) and that a recovery day is scheduled for day two (29 March 2022). Your cross examination of the defendants would take place on the third day (30 March 2022). The defendants anticipate that this timetable can be accommodated within the current listing of 4 days; 2. In relation to the difficulties which you say you will experience in cross-examining the defendants - the defendants will agree not to take any Browne v Dunn points. That case provides authority for a rule that, when a witness is giving evidence, and a party intends to call evidence contradicting that witness, the party must put the substance of the contradictory evidence to the witness during cross examination and give the witness an opportunity to comment on it. It is commonly referred to as the Browne v Dunne rule. The defendants propose agreeing not to seek to rely on the Brown v Dunne rule in relation to your cross examination of the defendants; 3. The defendants will also suggest to the Court that it might dispense with transcription fees so that you can receive a copy of the transcript at the conclusion of each day; and 4. Given your stated preference for dealing with matters in writing, the defendants also propose that, at the close of evidence, you could be provided with time to prepare written submissions which can be dealt with on the papers if you do not wish to make oral submissions."

Consideration

1. For the purposes of the hearing of the motion, the defendants do not dispute the mental health diagnoses that are relied upon by the plaintiff. It is apparent from the judgments of Bellew J and Schmidt AJ that these conditions were not raised as a basis for warranting pro bono assistance or as constituting "special reasons" in those applications. Certainly, they are conditions that underscore the desirability for the plaintiff to be legally represented. However, the history of the matter strongly suggests that there is little point in making the order sought for a referral for pro bono assistance since on both past occasions that such orders were made, it would seem, the plaintiff had the benefit of legal advice as to the merits of her claim but legal representation for the hearing did not eventuate. It is inappropriate for the Court to inquire of the plaintiff why that was so, but the end result does not assist her in determining whether a third referral would likely result in a different outcome, if the hearing is vacated and a fresh date set.
2. The defendants' proposal for the hearing is, in my view, sensible. It is apparent to me from the plaintiff's oral submissions on the hearing of the motion that she is intelligent, articulate and well-educated, as the conferring on her of a degree in education would suggest. It is equally clear to me that her vulnerability to anxiety has the potential to stymie her giving of evidence and oral delivery of submissions. The Court will, of course, be able to control questioning of the plaintiff, should she choose to give evidence, pursuant to the provisions of the Evidence Act 1995 (NSW), in particular, ss 26(1)(a), 29, 37, 41 and 42(1)(d).
3. Accordingly, the Court is not satisfied that the plaintiff has established special reasons for a further referral for pro bono assistance.
4. The only basis that has been advanced by the plaintiff for a vacating of the hearing date is so that she could receive pro bono assistance. Since that part of the application has been refused, this part must be refused as well. Accordingly, I dismiss the plaintiff's motion.
5. This being the fifth such application by the plaintiff and the third that is unsuccessful, it is appropriate in my view that there be a costs order in favour of the defendants.

Orders

1. I make the following orders: 1. The plaintiff's notice of motion is dismissed; 2. The plaintiff to pay the defendants' costs of the notice of motion.

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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: 11 March 2022