Phu v NSW Department of Education and Training

Judgment 1YOUNG JA: This is an application for pro bono legal assistance in respect of an appeal from the Administrative Decisions Tribunal Appeal Panel. The applicant, on behalf of his daughter who is significantly disabled, alleged that there was wrongful discrimination against her by the Department of Education failing to provide her with a one on one teacher's aide at the special school which she was attending. The applicant appears in person. Ms Samuels of the Crown Solicitor's Office appeared for the Department. 2The initial hearing in the Administrative Decisions Tribunal went against the applicant. He exercised his right of appeal and was represented before the Appeal Panel who affirmed the decision. The Appeal Panel said that the question before them was whether it was or was not reasonable in all the circumstances of the case to require the applicant's daughter to undertake her education in the absence of a one to one supporter and carer. The Appeal Panel was a little undecided as to whether that was a question of fact or a question of law. There was a suggestion before it that the original tribunal had asked the wrong question, but they did not accept that and they affirmed the decision below. 3Mr Phu wishes to appeal to this Court; he needs leave to do so and he has an application for leave to appeal. He asks for pro bono legal assistance. He has endeavoured to get legal assistance through Legal Aid. Legal Aid has refused on the merits and the appeal was dismissed. The Law Society has indicated that there is no solicitor on its panel willing to assist. 4Accordingly, even if this Court did order under Part 7 r 36 that the Registrar seek to find pro bono legal assistance, it is more likely than not that what would happen in this case is what happens in most cases, and that is that no lawyer is willing to take the case on virtually a no win no pay basis. In any event, it does not seem to me that the material in this case meets the requirements. 5The rule requires this Court to consider the interests of justice. The interests of justice mean that a person with an arguable case usually should have the opportunity of putting the matter before the Court. However, that consideration has less weight in the Court of Appeal than at first instance because a person has already had the advantage of a hearing, in this case by two Administrative Tribunals. 6The Court on an application for pro bono assistance does not consider whether it would or would not grant leave to appeal or allow the appeal so it does not deal fully with the merits of the application. It does, however, take into account whether there is a real chance of success: see Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 and my decision in Chand v Railcorp (9 August 2010). [As Chand v Railcorp was not previously published electronically, it is appended hereto for information]. 7There is not sufficient material before me to enable me to say that the applicant has an arguable case and so grant the order. Accordingly, even though the applicant has shown lack of means, I must dismiss the application for pro bono assistance and I will return the papers. [Ms Samuels has kindly offered to give Mr Phu the names of some people who might help him, but unfortunately the Court cannot]