PUPO and ANOR v BUILDERS LICENSING BOARD

Court of Appeal (NSW)|1996-05-24|Before: Priestley JA

PRIESTLEY, MEAGHER and SHELLER JJA 24 May 1996, 24 May 1996

Priestley JA Today's appeal was fixed for hearing today some time ago. At that time the appellant was represented by a firm of Solicitors called Carneys. By letter dated 15 May 1996, Carneys wrote to the appellant confirming that they were ceasing to act as his solicitor.

The appellant then wrote to the Court indicating he would be seeking an adjournment when the matter came on for hearing. The matter was listed for mention two days ago in order to see what the position was.

The appellant then informed the Court that he had been unable to obtain legal representation and did not think he could present his appeal himself. The matter was then left in the list for hearing today. The appellant was told that he should do everything he possibly could to be able to go on with the appeal today.

He was asked on Wednesday morning whether he had a copy of the appeal book and he said he did.

At the mention of the matter on Wednesday, Ms Olsson for the respondent said her instructions were to oppose any adjournment.

When the matter was called on for hearing this morning, the appellant again applied for an adjournment. He began to address the Court himself in support of his application without the assistance of an interpreter.

It was almost impossible for the Court to understand what he was saying. From that point the services of an interpreter were used. Mr Pupo appears to understand English quite well but in trying to speak it, to speak so quickly and with such a pronunciation that it is very difficult to follow.

His reason for seeking the adjournment was that he wished to be represented by a lawyer and did not consider that justice could be done unless he were represented.

On Wednesday he had presented to the Court a letter from which it appeared that he had made an application to the legal aid commission for legal assistance at a date after he had been informed by Carneys of their ceasing to act.

The situation as it emerged in the course of question and answer between him and the Bench is a very unsatisfactory one from the Court's point of view. Mr Pupo, the appellant, told the Court contrary to what he said on Wednesday, that he did not have an appeal book. He had gone to his former lawyers to try to get one but had not been able to do so. They had referred him to other lawyers; or perhaps he meant that they said to him that he should obtain other lawyers to represent him and then they would give those lawyers the appeal book.

At all events he asserted today he did not have an appeal book. He also asserted that he is unable to read English. Earlier today he handed three sets of documents to the Court that were duly noted. They indicated, amongst other things, that he had made some attempt since Wednesday, to get documents together to support the various assertions he was making.

The Court mentioned to him in the course of his application for adjournment that one matter concerning the Court was that a reading of the appeal papers led to the view that his appeal had very little prospect of success and that this was a matter the Court would consider in deciding upon his adjournment application.

It was after that that the full position, as he claimed it to be, emerged. That position is that if he were compelled to proceed with the appeal today he would have to do so through an interpreter, without an appeal book and further, unable himself to read the appeal book, if he had one.

On that bare situation, it would seem that to compel him to proceed would border either on the farcical or the tyrannicaL

The Court however, is not at all persuaded that the position is as the appellant claims it to be and in the circumstances has very seriously considered whether the truly just and proper way of disposing of the application for adjournment would be to refuse it.

However, there is one thing that stands in the appellant's favour in support of his application beyond any doubt and that is that he did have legal representation until 14 May. The Court has not been told of the circumstances in which the solicitors ceased to act for him beyond what appears in the correspondence from them which is of a formal nature. But although, as I said the Court is not at all persuaded of the full accuracy of the position as he presents it today should he be forced to proceed, for my part I do not think the Court is in a position to reject what he says and has little alternative but to act on the basis of the appearance of things as he presents them.

In those circumstances it would seem to me that it is necessary to grant him the adjournment that he asks for. The Court would be anxious to see that when the matter next comes before it for the hearing of the appeal, the present situation is not repeated. To do what it is possible to do to ensure that, the Court will make some directions:

It will direct the Registrar to make a copy of the appeal book available to the appellant.

It directs the appellant within seven days to approach both the Bar Association and the Law Society to ask each of those organisations to consider providing him with pro bono legal representation.

The matter should go into the Registrar's list for a further date for hearing to be fixed and when the matter comes into the Registrar's list for that purpose the Court directs that Mr Pupo then lodge with the Registrar a document in which he sets out how he has complied with the Court's directions.

If, when the matter comes for hearing again, Mr Pupo has been unable to obtain legal representation, the appeal will have to proceed, if circumstances are otherwise unchanged from the way they appear today, and Mr Pupo will have to present his appeal himself and will in the meantime have had to acquaint himself with the contents of the appeal book and be ready to say whatever he wants to say in support of the grounds of appeal which appear at the back of the appeal book.

My view is that by taking the course today which I have indicated, one of two outcomes should occur. One is that Mr Pupo will be legally represented. The other is that he will not and that if the outcome is the latter one he will have had every opportunity that a person in his position could have (and in saying that I recognise that his position would be a difficult one if this outcome does occur) to have the Court consider his appeal without any procedural unfairness being caused to him by Court procedures.

URJ PUPO and ANOR v BUILDERS LICENSING BOARD (Sheller JA) 3

The Court is not unanimous in the view that I have expressed about what should happen concerning this application, so I will defer making formal orders until the other members of the Court have said what they want to say.

Meagher JA In my view the application for an adjournment should be refused simply on the grounds that no reason has been advanced for granting it. The appeal will never be heard if the Court continues to permit Mr Pupo to manipulate it.

Sheller JA I agree with what the Presiding Judge has said and with the orders and directions that he proposes.

PRIESTLEY JA: The application for adjournment is granted. Do you wish to say anything about costs of today Ms Olsson?

PRIESTLEY JA: Mr Pupo the other side asks for you to pay the costs of today. That is the usual result of an application of this kind.

INTERPRETER: I ask for justice and when we hear the appeal what the Court decides.

PUPO: I believe in justice I don't believe in injust.

PRIESTLEY JA: The Court's order is that the appellant has to pay the costs thrown away as a result of today's successful adjournment application. I earlier specified certain directions. I think they were stated sufficiently clearly for me not to have to go through them again and the Court makes the directions as I earlier indicated. Ms Olsson is there anything you see that need to add to what I said in the way of directions or anything further that you ask?

Adjournment application allowed. The appellant appeared in person. Counsel for the respondent: Ms E Olsson

Solicitors for the respondent: Building Services Corporation

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Judgment (34 paragraphs)

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