By a notice of motion filed on 15 April 2021 the plaintiff in these proceedings seeks orders which are pleaded in the following terms:
1. I am requesting in the interests of the administration of justice, referral to a barrister or solicitor on the Pro Bono Panel for legal representation under UCPR Part 7, Division 9, Rule 7.36 and 7.37(b).
2. In keeping with Rule 7.36(3), 'The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person', I request that the appointment of a barrister and solicitor, should that be considered appropriate, be sought as soon as possible due to the limited time prior to the dates set for hearing in November.
3. My affidavit refers to the special reasons that I consider justify a further referral.
That notice of motion was supported by an affidavit of the plaintiff of 15 April 2021 which was read without objection.
The first defendant relied on an affidavit of Kristy Nunn, solicitor, dated 4 May 2021. The second defendant relied on an affidavit of Michael Ronald Bath dated 5 May 2021. Both of those affidavits were also read without objection.
These proceedings have a lengthy history which is helpfully set out in the affidavit of Ms Nunn. By reference to that affidavit I set out the following relevant matters, nothing that they do not constitute the entire chronology of proceedings.
The plaintiff commenced the proceedings by filing a statement of claim on 14 December 2017, naming her former solicitor as the first defendant and her former barrister as the second defendant. The plaintiff's former solicitor and barrister acted for her in proceedings in 2011. Shortly put, it is the plaintiff's case that both were negligent.
At the time of commencing the proceedings, the plaintiff was represented. However on 23 May 2018 her solicitors filed a notice of intention of ceasing to act. In the three years that have elapsed since that time, the plaintiff has been self-represented.
On 13 August 2018 orders were made requiring the plaintiff, in the event that she did not have legal representation, to file and serve any notice of motion seeking an order for referral for pro bono assistance. On 3 September 2018 the plaintiff filed a notice of motion seeking an order in those terms.
On 7 September 2018 RA Hulme J made an order referring the matter to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance. His Honour directed that such assistance be initially confined to the plaintiff being given advice as to the merits of her claim. His Honour further ordered that in the event that any advice received was to the effect that the matter had merit, the referral should extend to the plaintiff being represented generally in the proceedings. In making those orders his Honour observed, amongst other things, that as at that date (which is now some two and a half years ago) the matter had "not progressed very far". His Honour also observed that:
Nothing really has happened because the plaintiff has the unfortunate situation of being indigent, she is on a disability support pension, she asserts that she has no other income and so cannot afford to retain lawyers in the usual way.
His Honour concluded that in all of the circumstances he considered that it was in the interests of justice that the plaintiff's application be granted. In a statement which has proved to be prescient, his Honour observed:
Unless something is done the matter will not progress just as it has not progressed over the last six months or so, and so it is in the interests of everybody that the plaintiff be given at least a referral initially for advice and then potentially for representation generally in the matter.
On 13 November 2018 the plaintiff advised that a barrister had been appointed to provide her with pro bono assistance. When the proceedings were before the Court on 15 February 2019, counsel who appeared for the plaintiff indicated that another barrister had been made available to assist the plaintiff but that the identity of that barrister could not be disclosed. Why that was so was, and remains, unexplained. However, the Court was informed that the barrister in question would require a further two weeks to complete the advice which was to be given to the plaintiff.
It is evident that such advice was given at some point, because on 27 March 2019 the plaintiff indicated that she had received it, but needed further time to consider it. On 22 May 2019 the plaintiff filed an affidavit in which she listed a number of law firms that she had contacted seeking legal representation, without success. The only conclusion I can draw in all of those circumstances is that the plaintiff did not accept the advice that she was given.
On 13 June 2019 orders were made by the Registrar that any further application for pro bono assistance was to be filed by 27 June 2019. On that day, the plaintiff filed a notice of motion seeking a second order for referral for pro bono assistance.
On 8 August 2019 Rothman J made a second order referring the matter to the Registrar for referral to the pro bono legal panel, for assistance in:
1. general advice in relation to the proceedings;
2. representation on directions hearings, interlocutory hearings, final hearings;
3. drafting the statement of claim and any other documents to be filed or used in the proceedings; and
4. representation generally in the conduct of the proceedings or part of the proceedings.
It seems that this referral met with some initial success. I say that because on 18 October 2019 the manager of the Legal Assistance Division of the New South Wales Bar Association advised the Court that a barrister and solicitor had agreed to confer with the plaintiff on 15 November 2019.
When the proceedings came before the Registrar on 22 November 2019 Ms Harvey, the principal solicitor at the Law Society of New South Wales, appeared for the plaintiff together with counsel. The Court was informed that counsel and Ms Harvey required time to review all of the documents. An application for an adjournment was granted by the Registrar in those circumstances. On 3 December 2019 Ms Harvey filed a notice advising that she had been appointed to act for the plaintiff in the proceedings.
When the proceedings came before the Court again on 3 April 2020 the plaintiff appeared unrepresented. On that occasion she advised the Court that Mr Bambagiotti of counsel and Ms Harvey had withdrawn from the matter on the basis that they had been unable to obtain proper instructions from her. The plaintiff disputed that to be the case. Ms Harvey filed a notice of ceasing to act on 9 April 2020.
The matter has been before the Registrar since that time, with orders being made fixing the matter for hearing in November of this year. On 15 March 2021 the parties participated in a court annexed mediation before Senior Registrar Flaskas. Regrettably, that did not result in a resolution of the proceedings.
It is worthy of note that in her affidavit in support of the motion, the plaintiff made reference (at paragraph 20) to having sought assistance from a law firm between November 2020 and March 2021. She also deposed to the fact that that firm "insisted on looking at the material before deciding and then three months later just prior to mediation declined with what I considered to be a false explanation".
In essence, the plaintiff advances two bases for the orders now sought. The first, is that she is in receipt of a disability support pension and thus has no financial capacity to retain lawyers privately. The second, is 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.
The position of the first defendant on the motion is set out in the affidavit of Ms Nunn. The first defendant has opposed the relief sought, pointing out that the plaintiff has had the benefit of two previous orders for referral to the Pro Bono Panel for legal assistance. The first defendant's position is that the Court should exercise its discretion against making a further order, for the simple reason that the plaintiff has not established that there are special reasons that justify a further referral.
The first defendant has also expressed some concern, having regard to the progress (or perhaps lack of it) to date, and the delays which have occurred, that any further referral could jeopardise the hearing date. In short, it was the first defendant's position that the plaintiff's circumstances are not "special" and do not justify the exercise of the discretion in making the further order for referral which has been sought.
The second defendant provided short written submissions in relation to his position which stated that the second defendant neither consented to, nor opposed, the plaintiff's application "save to the extent that any such order would cause further delay or necessitate the loss of the hearing date". The written submissions also noted that the plaintiff had had the benefit of two previous orders for referral, and that the matter now had a hearing date. It was submitted that given those factors "the plaintiff's application should not be at the expense of losing the 2 November 2021 hearing date".
Rule 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) makes provision for the referral of a matter to the pro bono panel for legal assistance. To the extent relevant for present purposes the rule is in the following terms:
(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.
Rule 7.36(2A) has particular significance in the context of the present application and provides as follows:
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 three years unless the Court is satisfied that there are special reasons that justify a further referral.
In circumstances where the plaintiff has had the benefit of two previous referrals under r 7.36, r 7.36 (2A) has direct application. The term "special reasons" which is used in that rule is not defined. The word "special" should be given its natural and ordinary meaning, namely something that is different from what might be regarded as the usual.
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.
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.
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.
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.
As I observed in the course of the hearing of the notice of motion, it seems to me that this is a matter which should be managed, at least in the short term, so as to ensure that the hearing will proceed on its scheduled date. Whilst the directions that I propose to make on the next occasion may result in some imposition being placed on those who act for the defendants, the Court expects that the practitioners involved will assist in ensuring that all preparatory matters are addressed, so that the hearing can proceed.
For those reasons I make the following orders:
1. The notice of motion filed by the plaintiff on 15 April 2021 is dismissed.
2. I reserve the question of costs of the motion for determination by the trial judge.
3. I stand the matter over for further directions before me on 3 June 2021 at 9.30am.
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Decision last updated: 02 November 2021