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[2026] NSWCA 13
procedural. The second appellant’s notice of motion filed on 28 January 2026 was dismissed. No costs order was made in favour of either respondent ([27]–[28]).
2 cited instruments linked from this judgment.
Paul Gomes asked the Court of Appeal to refer him for pro bono legal help in connection with efforts to revive an appeal. The appeal concerned a Supreme Court judgment that awarded his company more than $1.2 million against its former solicitor. The money had been paid, and the company had not appealed the successful part of the judgment. Kirk JA accepted that Mr Gomes faced language, health and procedural difficulties. However, the judge was not satisfied that the company and Mr Gomes could not obtain legal help, or that Mr Gomes had no way of obtaining help outside the scheme. The referral was refused. The judge did not decide whether the appeal could be reopened, or whether prior referrals or whether proceedings were on foot affected eligibility.
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2,626 words · generated 07/10/2026
In this procedural ruling, Kirk JA considered whether Paul Gomes, the second appellant, should be referred to a barrister or solicitor on the Court’s Pro Bono Panel under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The ruling was not a decision on the separate application to reopen the appeal. The judgment says that application had been made by notice of motion filed on 7 January 2026, but “is not before me” ([11]).
The underlying dispute concerned the purchase of a hotel and associated business in Cohuna, Victoria. The appellants said the hotel was essentially derelict and that stock they said had been promised by the vendor had been removed ([4]). They sued their former solicitor, Mohan Sundar, alleging negligent advice, and Gannawarra Shire Council, alleging that it owed them a duty of care concerning the building’s condition ([5]).
On 7 February 2025, Cavanagh J found that Mr Sundar had breached his duty of care and awarded the first appellant, S&P Gomes Pty Ltd, $1,216,615.17. The claim against the Council was rejected ([6]). Mr Sundar did not appeal, and the judgment sum was paid ([7]).
The appellants nevertheless appealed. Their Notice of Appeal contained 106 grounds relating to both respondents. After the Registrar indicated that it was unsatisfactory, the Court made four orders requiring an amended notice of appeal. The appellants did not comply with those orders within the required time. A document described as a “Provisional Amended Notice of Appeal” was later tendered more than five months after the original deadline and added 11 grounds to the original 106 ([8]–[9]). On 15 December 2025, McHugh JA dismissed a motion seeking leave and more time to file an amended notice, and dismissed the appeal for want of due despatch under UCPR r 12.7 ([10]).
Mr Gomes then sought pro bono assistance in the context of the attempted reopening. He relied on his difficulty with English and court processes, the complexity of the appeal, physical and mental health conditions, and financial hardship ([14]). Kirk JA accepted that he faced language and complexity-related difficulties and accepted the evidence about his health. The application was nonetheless dismissed because the Court was not persuaded that a referral was in the interests of the administration of justice. The order dismissed the motion filed on 28 January 2026 ([26]–[27]). No costs order was made for either respondent ([28]).
UCPR r 7.36(1) gives the Court power to refer a litigant to the registrar for possible referral to a lawyer on the Pro Bono Panel if referral is in the interests of the administration of justice. Under r 7.36(2), the Court may consider the litigant’s means, capacity to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and any other appropriate matter ([12]).
The judge started from the resource implications of referral. Citing Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41, Kirk JA noted that pro bono assistance is “a valuable and scarce resource” dependent on the goodwill of legal practitioners, and that the Court has a responsibility to husband it carefully ([13]). The judgment also referred to Sharpe, Young and Allchin as cases discussing principles relevant to the referral power ([13]).
The circumstances supporting Mr Gomes’ application were recognised, not rejected. Kirk JA accepted that English was not his first language and that he struggled to engage with the court process. The judge also accepted that the appeal involved complex legal and procedural issues. Those considerations were entitled to some weight, but their force was limited in the context of the Court’s responsibility to preserve scarce pro bono assistance ([15]).
The judge also accepted the health evidence. A psychiatrist’s report described features of major depressive disorder since at least February 2023 and significant impacts on Mr Gomes’ executive and cognitive functioning ([16]). However, the report did not establish that representing himself, rather than the litigation generally, was especially significant as a source of stress. Kirk JA also considered that Mr Gomes’ substantial success at trial suggested he had been able to represent himself adequately in that earlier proceeding ([16]). These were assessments of the evidence in this application, not findings that health conditions or self-representation are generally unimportant.
The principal issue was financial capacity. The judgment sum of $1,216,615.17 had been paid to the company, and the company was Mr Gomes’ corporate vehicle. He did not argue that the Court should assess the company’s resources separately from his own ([17]). Kirk JA considered that the funds could be used to pay legal fees. The Court also noted that it was the appellants who had initiated the appeal, seeking additional money from the respondents, while the judgment sum had already been paid ([17]).
Mr Gomes said the funds had been substantially used for legal costs, loan repayments, operating expenses and essential family and medical costs ([18]). The judge accepted that Mr Gomes and his company had faced, and continued to face, significant financial strain. But the evidence did not persuade the Court that neither appellant had the means to obtain legal representation ([21]). The financial account was regarded as too general in material respects. For example, the evidence did not explain whether the bank was pressing for loan repayment, what remained owing, or what would have happened if a payment had not been made ([19]). It also referred to ongoing business expenses without adequately explaining their relationship to the business’s later closure ([20]).
A further reason was the distinct statutory relevance of external capacity. The judge explained that r 7.36(2)(b), capacity to obtain assistance outside the scheme, is separate from r 7.36(2)(a), means. A litigant might be unable to afford a lawyer but still have some capacity to obtain help, such as from someone close to them or on a contingent fee basis ([22]). Mr Gomes did not explain what efforts he had made to secure representation, despite saying he had made reasonable efforts. Nor did he explain why the solicitors previously identified in filed appeal documents had ceased acting. Ms Schmid appeared as amicus and had previously offered some help, although the circumstances and extent of her assistance were not set out in detail ([23]).
Finally, the judge considered Mr Gomes’ contention that the respondents’ delay in filing defences had worsened his financial position. The evidence included a transcript of a hearing at which the respondents were ordered to file defences, and an explanation that a request for particulars had not been fully answered. On that limited record, Kirk JA could not determine which side bore more responsibility for the delay. The point therefore did not weigh in favour of referral ([24]).
Taken together, the accepted personal difficulties did not outweigh the Court’s concerns about means and external capacity. Those financial and access-to-assistance considerations “weigh[ed] heavily” against referral ([25]).
The judgment presents UCPR r 7.36 as an existing discretionary power, not a new rule. The power turns on whether referral is in the interests of the administration of justice, with the matters in r 7.36(2) available for consideration ([12]). The reasons do not purport to replace or comprehensively restate the principles in earlier Court of Appeal decisions. They refer to Sharpe, Young and Allchin as cases in which relevant principles had been discussed, and quote the resource-conservation statement from Renshaw ([13]).
The contribution of this ruling is its application of those principles to the particular evidence. It illustrates that an applicant’s financial circumstances may be assessed in light of funds held by a closely connected corporate appellant, particularly where the applicant does not argue that the two should be treated separately ([17]). It also illustrates that evidence of hardship can be accepted without establishing that a litigant lacks means to obtain representation. Here, the Court accepted significant financial strain but found the material inadequate to establish inability to obtain legal assistance ([19]–[21]).
The ruling also makes clear that “means” and “capacity” are not interchangeable. The Court treated the ability to pay and the ability to obtain assistance outside the scheme as separate considerations because r 7.36(2) lists them separately ([22]). In this case, the lack of detail about approaches to prior solicitors and the unexplained cessation of their retainers was relevant to the external-capacity question ([23]).
The judgment should not be read as deciding that a received judgment sum will invariably prevent a pro bono referral, or that prior legal representation rules out future need. Kirk JA’s conclusion depended on the available evidence and the circumstances of the company and its director. Nor did the Court establish a universal evidentiary formula for referral applications. It held only that the material in this application did not satisfy it that referral was in the interests of the administration of justice ([25]–[26]).
The ruling did not determine two additional matters raised by Mr Sundar: whether there were “proceedings on foot” and whether Mr Gomes had benefited from prior pro bono referrals. The judge expressly found it unnecessary to decide them ([26]). They therefore cannot be treated as resolved questions or as part of the decision’s operative reasoning.
At [13], Kirk JA quoted Brereton JA in Renshaw: “pro bono assistance is a valuable and scarce resource, dependent on the goodwill of members of the legal profession, which should not be lightly dissipated.” In plain English, the Court considered the limited availability of volunteer legal work relevant to deciding whether a referral should be made. The passage is not a finding about Mr Gomes’ personal circumstances; it explains the broader context for exercising the discretion.
At [17], the judgment says the company was Mr Gomes’ corporate vehicle and that there was “no reason in this case to treat the financial capacity of the two appellants as though they were independent”. This means the judge assessed the paid judgment sum as relevant to the referral application, rather than treating the company’s funds as wholly separate from Mr Gomes’ ability to obtain legal help. The qualification “in this case” matters: the passage is tied to the evidence and the parties’ positions in this application.
At [22], Kirk JA states: “A litigant may sometimes have the capacity to obtain legal assistance even if they cannot afford to pay for it.” The explanation is that access to assistance and ability to fund assistance are different questions. The judgment gives possible examples, including help from someone close to the litigant and a contingent fee arrangement. It does not find that either option was available to Mr Gomes.
At [25], the judge says, “I am not persuaded that the appellants do not have the means to obtain legal assistance. Nor am I persuaded that Mr Gomes has no capacity to obtain legal assistance outside the scheme.” This is a statement about the Court’s assessment of whether the evidence justified referral. It is not a finding that the appellants had no financial difficulties; at [21], the judge expressly accepted significant financial strain.
At [26], Kirk JA concludes that it was not established that a referral would be in the interests of the administration of justice. The practical result appears in [27]: the motion filed on 28 January 2026 was dismissed. The separate costs decision is at [28], where the Court declined to order costs for the respondents.
This ruling is most relevant to applications under UCPR r 7.36 where the Court must consider both a litigant’s financial means and capacity to obtain help outside the scheme. It is particularly instructive where a litigant relies on hardship but related funds, such as money paid to a company closely connected with the applicant, may be relevant to the assessment. In this case, the company was the first appellant, Mr Gomes’ corporate vehicle, and he did not ask for their financial circumstances to be treated independently ([17]).
It may also be relevant where an applicant gives a general account of expenditure but does not provide detail about significant items or explain apparently inconsistent statements about business operations and closure. The judge identified such gaps in the affidavits and financial material before concluding that the evidence did not establish lack of means ([19]–[21]).
The external-capacity analysis may be pertinent where an applicant says that attempts to obtain representation have failed but does not explain the steps taken, or where previous solicitors ceased acting without an explanation. The judgment treated these omissions as significant to r 7.36(2)(b) ([23]). Its reasoning also shows that language barriers, complexity and health conditions can be accepted and still be weighed against other circumstances rather than automatically determining the application ([15]–[16]).
This ruling does not decide every application involving those facts. It does not say that any single factor is conclusive. The Court assessed the circumstances together, with particular emphasis on the judgment sum and the evidence about available assistance ([17]–[26]).
The judgment was delivered on 23 February 2026. The supplied judgment contains no later judicial treatment of this decision, so later application, distinction, approval or criticism cannot be established from the available source.
The ruling itself identifies earlier authorities relevant to the referral discretion. It refers to Sharpe v Hargraves Secured Investments Ltd, Young v Director of Public Prosecutions and Allchin v Hunter Water Corporation (No 2) as decisions in which principles concerning referrals had been discussed ([13]). It quotes and adopts the resource-conservation passage from Renshaw, stating that it had been approved many times subsequently ([13]). Kirk JA also refers to Kearney v Amirbeaggi when discussing the stress of litigation conducted by a lay person ([16]). These references show the authorities considered in this judgment; they do not establish how later courts treated the present decision.
The judgment also refers to the trial decision, S&P Gomes Pty Ltd ta Cohuna Hotel Motel v Sundar ta Sun Legal [2025] NSWSC 24, to explain the underlying dispute and award ([4]–[7]). It does not reconsider that decision’s findings on liability or damages. The issue before Kirk JA was the requested referral, not the merits of the underlying negligence claim or the pending application to reopen the appeal.
First, Kirk JA did not decide whether the appeal was “proceedings on foot” for the purpose of the referral application, or whether any earlier pro bono referrals had been made to Mr Gomes. Those matters were raised by Mr Sundar, but the judge found it unnecessary to determine them after reaching the conclusion that referral was not justified on the other circumstances ([26]).
Second, the reasons do not determine the separate motion to reopen McHugh JA’s dismissal of the appeal. That motion was filed on 7 January 2026 and was not before Kirk JA ([11]). The dismissal of the pro bono motion therefore should not be confused with a decision on whether the appeal could be reinstated.
Third, the judgment does not decide the precise financial relationship between Mr Gomes and the company beyond the circumstances before the Court. Kirk JA’s assessment relied on the company being his corporate vehicle, receipt of the judgment sum, and Mr Gomes not suggesting separate treatment was appropriate ([17]). The judgment does not set out a general rule for assessing corporate funds in every referral application.
Fourth, the judge did not resolve who was responsible for the delay in filing defences. The available transcript and explanation were insufficient to determine which party was more at fault, so the alleged delay did not assist the application ([24]). That issue remained unresolved in this ruling.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: S&P Gomes Pty Ltd t/as Cohuna Hotel Motel v Mohan Sundar t/as Sun Legal (No 2) [2026] NSWCA 13
Hearing dates: 23 February 2026
Date of orders: 23 February 2026
Decision date: 23 February 2026
Before: Kirk JA
Decision: The second appellant’s motion seeking a referral to a pro bono scheme, filed on 28 January 2026, is dismissed.
Catchwords: CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — application made by appellant — substantial judgment sum previously paid to appellant — whether test for pro bono referral satisfied
Legislation Cited: Uniform Civil Procedure Rules (2005) NSW, rr 7.36, 12.7
Cases Cited: Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315
Kearney v Amirbeaggi [2022] NSWSC 805
Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41
S&P Gomes Pty Ltd ta Cohuna Hotel Motel v Sundar ta Sun Legal [2025] NSWSC 24
Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288
Young v Director of Public Prosecutions [2022] NSWCA 133
Category: Procedural rulings
Parties: S&P Gomes Pty Ltd t/as Cohuna Hotel Motel (First Appellant)
Paul Gomes (Second Appellant)
Mohan Sundar t/as Sun Legal (First Respondent)
Gannawarra Shire Council (Second Respondent)
Representation: Counsel:
Second appellant: in person
First respondent: S Sorefan (solicitor)
Second respondent: A Skinner (solicitor)
Amicus curiae: W Schmid
Solicitors:
First respondent: Gilchrist Connell
Second respondent: MinterEllison
File Number(s): 2025/80991
Publication restriction: Nil
The second appellant in this matter, Mr Paul Gomes, seeks a referral to a pro bono scheme pursuant to r 7.36 of the Uniform Civil Procedure Rules (2005) NSW (UCPR). The first appellant in the matter – which does not seek such a referral – is Mr Gomes’ company, S&P Gomes Pty Ltd t/as Cohuna Hotel Motel.
Mr Gomes appeared for himself on the application. English is not his first language. At his request, I permitted his daughter to speak on his behalf. A solicitor, Ms Wilhelmina Schmid, also sought to appear as amicus curiae. This course was not opposed by any of the parties and I permitted it. I was led to understand that Ms Schmid had previously offered assistance to Mr Gomes, and was there to assist him again today if needed. I allowed her the opportunity to make oral submissions. She took up that opportunity, briefly.
I am not persuaded that the referral sought by Mr Gomes should be made. In what follows I briefly describe the relevant background and note the principles relating to referrals under r 7.36 before considering Mr Gomes’ application.
The appeal brought in this Court relates to a judgment of Cavanagh J in the Supreme Court in proceedings in which the appellants were the plaintiffs: S&P Gomes Pty Ltd ta Cohuna Hotel Motel v Sundar ta Sun Legal [2025] NSWSC 24. In short, the appellants had purchased a hotel and associated business in Cohuna in rural Victoria, just south of the Murray. They subsequently discovered that the hotel was essentially derelict and that certain stock which the appellants say they had been promised by the vendor had been removed from the business.
The first defendant in the proceedings below, who is now the first respondent, is the appellants’ former solicitor Mr Mohan Sundar, who traded as “Sun Legal”. He acted for the appellants in relation to the purchase. The appellants claimed they had been negligently advised. The second defendant, which is now the second respondent, is Gannawarra Shire Council. The appellants claimed that the Council owed them a duty of care to ensure that the building was kept in a proper condition.
The primary judge, in an expeditious judgment handed down on 7 February 2025, held that Mr Sundar had breached his duty of care and awarded the first appellant damages of $1,216,615.17. His Honour rejected the claim against the Council.
Mr Sundar did not appeal from that decision. The judgment sum has been paid.
The appellants filed a Notice of Intention to Appeal on 28 February 2025 then, on 6 May 2025, a Notice of Appeal which contained some 106 grounds relating to both respondents. At the first directions hearing in this Court, on 28 May 2025, the Registrar of the Court of Appeal indicated that the Notice of Appeal was unsatisfactory and directed the appellants to file and serve an Amended Notice of Appeal by 25 June 2025.
It is not necessary to recount the subsequent events in detail save to note that the appellants failed to comply with four orders of the Court directing that an amended Notice of Appeal be filed. A document described as a “Provisional Amended Notice of Appeal” was eventually sought to be filed more than five months after the original deadline for filing and contained 11 further grounds in addition to the original 106 grounds of appeal.
On 15 December 2025 McHugh JA heard three notices of motion: one from the second appellant seeking leave to file and serve an Amended Notice of Appeal and an extension of time of a further eight weeks in which to do so; and one motion from each respondent seeking that the Notice of Appeal be dismissed either for want of prosecution or for not properly disclosing grounds of appeal. His Honour dismissed the second appellant’s notice of motion with costs, and dismissed the notice of appeal with costs for want of due despatch pursuant to r 12.7 of the UCPR.
By a notice of motion filed on 7 January 2026 – which is not before me – the appellants have sought to re-open McHugh JA’s decision and reinstate their appeal against the primary judgment. It is in that context that Mr Gomes seeks a referral for pro bono assistance.
(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.
(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.
(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.
[11] … [P]ro bono assistance is a valuable and scarce resource, dependent on the goodwill of members of the legal profession, which should not be lightly dissipated. The Court has a responsibility to husband this resource carefully. The obligations undertaken by a lawyer who accepts a referral import a concomitant obligation on the Court to exercise discretion in the making of referrals. … [citation omitted]
In his two affidavits and in relatively sophisticated written submissions Mr Gomes gives the following main reasons why a referral should be made:
English is not his first language and he struggles to engage with the court process;
the appeal involves “complex legal and procedural issues” (being a potentially relevant matter under r 7.36(2)(c)), which places him at a significant disadvantage compared with the respondents;
he suffers from multiple physical and mental health conditions, including suffering “symptoms of anxiety, depression, panic attacks and ongoing emotional difficulties”;
the proceedings have been lengthy and expensive, and neither he nor his company are in a position to pay for legal representation (raising, potentially, the matters referred to in r 7.36(2)(a) and (b)).
I accept the first and second points, which are entitled to some weight. That being said, there are many litigants in the courts who suffer similar difficulties, which is relevant to considering the Court’s “responsibility to husband this resource carefully” (Renshaw at [11]).
I also accept the third point. Mr Gomes tendered a report of a psychiatrist which says that since at least February 2023 Mr Gomes has had “features of [a] major depressive disorder”, and that his symptoms have “significantly impacted his overall executive and cognitive functioning”. Again, however, this factor has limited force in this case. Many litigants in person find the process of participating in a court case to be demanding, if not traumatic. As Beech-Jones CJ at CL said in Kearney v Amirbeaggi [2022] NSWSC 805 at [20], in the context of an application to vacate a hearing date: “All litigation is stressful. Litigation conducted by a lay person on their own behalf is particularly stressful. Complex litigation of the kind initiated here by a lay person on their own behalf, is especially stressful.” The psychiatric report referred, unsurprisingly, to the litigation being a stressor for Mr Gomes, but did not state that having to appear for himself – as opposed to the litigation per se – was of particular significance in this regard. Mr Gomes’ substantial success in the trial before Cavanagh J suggests that he was able to represent himself quite adequately.
The key issue in this application is the fourth point raised by Mr Gomes. Mr Sundar has paid the full judgment sum to the first appellant and has not sought to disturb Cavanagh J’s finding of liability or quantification of damages. The first appellant is Mr Gomes’ corporate vehicle. There is no reason in this case to treat the financial capacity of the two appellants as though they were independent and Mr Gomes did not suggest I should do so. The funds paid could be drawn upon for the payment of legal fees in the appeal. It is the appellants who initiated the appeal from Cavanagh J’s decision seeking to recover additional money from the respondents. In such circumstances, prima facie it does not appear to be in the interests of the administration of justice to expend the limited pro bono resources available on the appellants’ proceedings.
Mr Gomes’ notice of motion filed on 28 January 2026 will be dismissed.
Both respondents read affidavits on the motion, and the solicitor for the first respondent provided written, and made oral, submissions. In the end the first respondent neither consented to nor opposed the application. I understood the second respondent to take the same position. The point at issue did not directly affect the respondents’ interests, and the matters raised by the application were relatively clear. In the circumstances I am not persuaded that a costs order should be made in their favour.
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S&P Gomes Pty Ltd t/as Cohuna Hotel Motel
Mohan Sundar t/as Sun Legal
The second appellant’s notice of motion filed on 28 January 2026 was dismissed. No costs order was made in favour of either respondent ([27]–[28]).
Mr Gomes contended that “those funds have been substantially exhausted by years of legal costs, repayment of business loan liabilities, ongoing operating expenses, and essential family and medical costs”. He has tendered various financial documents. Those documents show that the judgment sum was received by the first appellant into its business account and then quickly dispersed. The effect of Mr Gomes’ submissions appeared to be that he and his business had significant and urgent expenses that needed to be prioritised over instruction of legal representatives in the present appeal.
Although Mr Gomes has provided a large bundle of screen shots of bank statements and the like, his explanation of his position in his affidavits is expressed at a high level of generality. For example, he says that his company “is now experiencing serious financial hardship and does not have sufficient funds to bear the cost of legal representation”. He says that the company has an outstanding bank loan “and I have paid part of that loan from the judgment funds”. He does not explain whether the bank was pressing for that payment; whether any amount remains outstanding; or what would have happened if the payment had not been made. He also says, in a very general way, that “I have also been required to meet ongoing business expenses, including electricity, water, gas, licence fees and the costs of maintaining the liquor business”. He says that he and his wife “have some limited personal funds remaining” but he does not give details. Nor does he give any real explanation of why, in that context, he says he is “not in a position to continue paying legal costs from my personal resources”.
There are also statements in his affidavit of 8 February 2026 which appear to be in tension with one another. For instance, at one point he says that he and his family have “worked continuously to keep the business operating”, even though “the business has not been fully running and no salaries have been paid to family members” (emphasis added). Yet he also says that ultimately the Council “served an evacuation notice requiring the premises to be vacated, as result of which the business was forced to completely shut down”. He does not explain when the business was shut down, nor whether and why it thereafter continued to incur the “ongoing business expenses” he had referred to earlier.
I am prepared to accept that Mr Gomes and his company have faced, and continue to face, significant financial strains. I am not persuaded, however, that neither appellant has the means to afford legal representation.
Moreover, r 7.36(2)(b) refers to “the capacity of the litigant to obtain legal assistance outside the scheme”. That factor is stated separately from the factor in subrule (a), being “the means of the litigant”. A litigant may sometimes have the capacity to obtain legal assistance even if they cannot afford to pay for it. For example, the circumstances may suggest that someone close to them would be willing and able to pay, or that they could obtain representation on a contingent fee basis.
In Mr Gomes’ affidavit of 27 January 2026 he says “I have made reasonable efforts to obtain legal assistance but have been unable to secure representation due to my financial circumstances”. Yet he does not explain what, if any, efforts he has made to obtain assistance. That point is significant in circumstances where one solicitor was named as Mr Gomes’ legal representative in the filed notice of intention to appeal and another solicitor was named on the filed notice of appeal. On 8 December 2025 a notice of removal of solicitor was filed by Mr Gomes. He did not explain the circumstances of these two sets of solicitors ceasing to act. It is also notable that it seems Ms Schmid was and is prepared to offer Mr Gomes some assistance, as illustrated by her appearance before me as amicus, even if the circumstances relating to her assistance were not explained in any detail.
In oral submissions Mr Gomes also sought to argue that his financial position had been exacerbated by the actions of the respondents, in particular because although his claim had originally been filed in 2021, they had not filed a defence to his claim until the second half of 2024. Mr Gomes tendered a court transcript of 12 June 2024 of a hearing where Chen J ordered the respondents to file defences. An explanation for the delay in filing a defence offered by counsel for the second respondent in that hearing was that there had been a request for particulars which had not been fully answered. It is not possible for me to conclude from the very limited material before me which of the parties was more or less at fault for the delay in the matter coming to hearing. I am not satisfied that this point weighs in favour of the application.
In the context outlined I am not persuaded that the appellants do not have the means to obtain legal assistance. Nor am I persuaded that Mr Gomes has no capacity to obtain legal assistance outside the scheme. Those matters weigh heavily against making a referral.
Taking account of all the circumstances I am not persuaded that it is in the interests of the administration of justice to make a referral pursuant to r 7.36, and I decline to do so. Mr Sundar raised further arguments relating to whether there were “proceedings on foot” and prior referrals for pro bono assistance from which Mr Gomes had benefitted. It is unnecessary to determine those points.