HER HONOUR: Before me in the applications list this morning for directions was a notice of motion filed on 23 October 2019 by Rose Sebie, the second plaintiff in proceedings commenced in 2018 in the Real Property list (2018/00137809) by the now deceased Ramzy Sebie (the first plaintiff) and his wife Rose against Andy Vuong Duc Pham (the first defendant), Thi Huong Giang Pham (the second defendant), and ENA Development Pty Ltd (the third defendant). In the substantive proceedings, a raft of declaratory relief and orders are sought in relation to certain property at Chiswick (the Chiswick Property) (see the amended summons filed 1 June 2018).
The substantive dispute appears to relate to a long-running dispute as to a claimed ownership interest by the plaintiffs in the Chiswick property. That dispute has been the subject of numerous decisions by Slattery J, culminating in a decision by his Honour in February 2019 (Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 11) [2019] NSWSC 115), in which his Honour ordered that there be paid out of court to Mr and Mrs Pham an amount in satisfaction of a lump sums costs order in their favour made in January 2018. The funds held in court represent the proceeds of sale of the Chiswick Property. At [16] of his Honour's reasons, his Honour observed that the other potential claims over the funds in court had fallen away.
It would thus appear that much of the declaratory and other relief the subject of the amended summons may now be otiose (that relief including orders sought for amendment of an "existing" caveat over the property and for leave to lodge a further caveat in respect of the property, in circumstances where the property has now been sold).
The notice of motion seeks an order that this Court "provide a pro bono legal representative to Rose Sebie" and includes the statement that it is the duty of this Court to "have a choice to obtain proper legal representation" citing Division 9, Part 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
It is not apparent whether the notice of motion was served on the defendants.
In support of the notice of motion is an affidavit affirmed 8 October 2019 by Rose Sebie, in which Mrs Sebie deposes that she is a pensioner with Parkinson's disease and was then 83 years old. Mrs Sebie also there deposes to net assets of $2,542 and that she has "funds tied up in the court trust which is yet to be determined and released". In her affidavit, Mrs Sebie nominates two persons that she requests act on her behalf until her pro bono application is determined. Neither of those persons is the person who is currently agitating Mrs Sebie's application (that being a Ms Cheryl Ansah who says she is Mrs Sebie's friend). One of the two nominated persons is Mr Robert Sebie, against whom judgment in favour of Mr and Mrs Pham has already been entered (and in respect of whom the lump sum costs order was made).
The notice of motion was listed in the applications list for directions following an email communication from Ms Ansah to the duty judge last week seeking that the application be heard in chambers under r 7.36 of the UCPR. The email stated that Ms Ansah had previously been given leave to appear for Mrs Sebie (but it is not clear by whom any such leave was granted). The email stated that the application was urgent because Mrs Sebie "is old, ill and her medical condition is becoming worst" [sic]. For some inexplicable reason the communication attached medical reports of the late Ramzy Sebie.
After the motion was referred by the duty judge to the applications list, Ms Ansah communicated with my associate in similar terms, requesting that the application be dealt with in chambers. I directed that it be listed this morning.
Ms Ansah appeared by telephone when the matter was before the Court this morning. She informed me that she was on her way to work. The telephone line was disconnected at Ms Ansah's end during the course of the directions hearing. I directed that the matter be listed before the Registrar when the 2015 proceeding was next to be before the Registrar. Ms Ansah then forwarded another email communication to my associate again requesting that the matter be determined in chambers. In that communication, Ms Ansah stated that the matter was urgent as Mrs Sebie's "claim is dissolving due to the events in parallel case" (by which I understand Ms Ansah to be referring to the 2015 proceedings the subject of the lump sum costs order and which I understand to be before the Registrar tomorrow for directions); that Mrs Sebie has Parkinson's disease (not Alzheimer's disease as had been stated in the directions hearing); that Mrs Sebie "is in content with agedly health issues" and that "some times she has good/bad days".
As to the history of the 23 October 2019 motion, it appears that the notice of motion was initially referred to the duty judge (then Kunc J) who made an order on 25 November 2019 that the notice of motion be stood over to the expedition judge to be mentioned with the 2015 proceeding. The motion was stood over by Sackar J for further directions on 6 December 2019. In December 2019, the 2015 proceeding was the subject of an order for expedition. It appears that nothing further happened in relation to the motion seeking pro bono representation until February 2021, when Ms Ansah sought to agitate the matter before Sackar J and the matter was referred back to the Registrar. There followed the communications with the current duty judge's associate (to which I have referred above) that led to the motion being listed for directions before me this morning. Unfortunately, I could not determine what directions should be made in relation to the motion before Ms Ansah's telephone lost connection.
In the circumstances, the just, quick and cheap resolution of the real issues in dispute is to deal with the application for pro bono representation on the papers (as Ms Ansah has repeatedly requested).
[2]
Referral to a barrister or solicitor on the Pro Bono Panel for legal assistance
Rule 7.36 of the UCPR provides that, 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.
In considering such an application, the court may take into account: the means of the litigant; the capacity of the litigant to obtain legal assistance outside the scheme; the nature and complexity of the proceedings; and any other matter that is considered appropriate.
Pursuant to r 7.36(2A), a 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 preceding period of 3 years unless the Court is satisfied that there are special reasons that justify a further referral. (Ms Ansah has informed me that there has been no previous referral.)
It is important to recognise that an order referring a litigant under r 7.36 of the UCPR does not guarantee that pro bono legal assistance will be able to be arranged. Further, it is not the case (as the notice of motion asserts) that it is the duty of the court to provide pro bono representation for litigants.
It is also relevant to note that, while a referral for legal assistance does not reflect any opinion on the merits of a litigant's case, it has been said that ordinarily a referral should not be made if the claim is considered to be without merit (see, for example, M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [21]). Having regard to the obligations which are undertaken by a legal representative who accepts a pro bono referral, it is important to exercise the discretion to order such a referral with some caution.
It has also been recognised that appropriate early legal advice may avoid unnecessary or futile litigation (see, for example, Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602).
Referral to the Pro Bono Panel may be limited to particular tasks (such as provision of advice as to the merits of a claim) rather than for the conduct of proceedings as a whole.
The current application is complicated by the fact that the applicant for referral (Mrs Sebie) is said to be in worsening health and it appears that there may well be an issue as to her capacity to provide legal instructions even if a willing pro bono legal representative were to be identified. I was given conflicting information over the telephone at the directions hearing and in email communications from Ms Ansah in this regard. A person who is under legal incapacity may not commence or carry on proceedings except by his or her tutor and, unless the Court otherwise orders, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor (see r 7.14 of the UCPR). Ms Ansah has informed me that she "can appoint a Tutor" but I note that there is nothing that would enable such an appointment to be made at this stage (let alone any consent to act by a proposed tutor).
The matter is also complicated by the fact that there has been ongoing litigation for some years in relation to interests claimed in the Chiswick Property and it may well be that issues of Anshun or issue estoppel (or abuse of process) would arise in relation to the claims apparently now sought to be prosecuted by the amended summons. It is not possible to explore those issues on the current application for referral for pro bono assistance.
It is by no means apparent to me what the relationship is between Ms Ansah and Mrs Sebie nor is it clear whether Mrs Sebie is in fact capable of providing instructions in relation to the matter. On the face of the affidavit affirmed by Mrs Sebie in 2019, she does not have assets likely to be sufficient to pay legal costs. However, there is no evidence as to what attempts (if any) have been made by or on behalf of Mrs Sebie to obtain pro bono assistance outside the scheme.
There is nothing to shed light on the underlying merits of any claim by Mrs Sebie to an interest in the Chiswick property, other than to note that the contested litigation before Slattery J led to a finding in favour of Mr and Mrs Pham, against Mrs Sebie's son, Robert, and a related company; and, as noted above, when the matter was last before Slattery J, his Honour observed that the other potential claims over the funds in court had fallen away. Moreover, a consideration of Slattery J's previous decisions in this matter suggests an unfortunate history of last minute and unmeritorious applications by members of the Sebie family.
Finally, it is relevant to note that (as I have indicated above) the relief sought in the amended summons seems to a large extent to have been rendered otiose following the sale of the Chiswick Property; and insofar as the amended summons contains allegations of fraud it would be necessary for that to be properly pleaded.
In all the circumstances, particularly having regard to the history of the 2015 proceedings (insofar as that can be discerned from the published decisions in those proceedings), the lack of any evidence as to attempts to obtain pro bono assistance outside the scheme, the doubts as to Mrs Sebie's legal capacity (i.e., her ability to provide instructions in relation to the matter), the fact that the relief apparently sought by the amended summons now seems unlikely to be appropriate and there would be a need to re-cast the proceedings to set out the basis of any claim Mrs Sebie might have to the funds presently held in court, and the onerous obligations that a referral for pro bono assistance would cast upon a legal representative accepting such a referral, I am not persuaded that such a referral should be made.
I should here note that, had I been satisfied that a referral should be made, I would have limited it to a referral for advice as to whether the appointment of a tutor was necessary (before any consideration of the merits of Mrs Sebie's proposed claim).
For those reasons, I therefore dismiss the notice of motion filed on 23 October 2019 by Mrs Sebie. As it is not apparent that any respondent to the motion has been served with the papers, it is not necessary to consider the issue of costs.
[3]
Orders
I make the following order:
1. Dismiss the notice of motion filed on 23 October 2019 by the second plaintiff.
[4]
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Decision last updated: 04 May 2021