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[2026] NSWCA 70
procedural. The notice of motion dated 7 April 2026 was dismissed. There was no order as to the State’s costs of the motion, with the intent that the State bear its own costs. The listing before the Registrar...
The Court refused Mr Tabbaa’s request for free legal representation in his pending appeal-related proceedings. The judge accepted that a lawyer would help him and the Court, but held that this alone did not justify using limited pro bono resources. The proposed appeal appeared relatively straightforward, the record was not extensive, and Mr Tabbaa had shown that he could present his arguments. The ruling did not decide whether his appeal would succeed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,257 words · generated 08/10/2026
In this ex tempore ruling, Leeming JA determined a procedural application by Mouhammad Riad Tabbaa for a referral to pro bono legal assistance under r 7.36 of the Uniform Civil Procedure Rules (NSW). The motion, filed on 7 April 2026, sought a solicitor or barrister to assist him in pending proceedings in the Court of Appeal [1].
2 cited instruments linked from this judgment.
The application arose from District Court proceedings about events in 2018. Mr Tabbaa had been arrested and detained on two occasions, then charged with intimidation. His Local Court conviction was quashed on appeal to the District Court, which was not satisfied beyond reasonable doubt that an item shown in a photograph was a weapon [2]–[3]. In August 2023, he commenced a civil action against the State advancing four tort claims: wrongful arrest, false imprisonment, trespass to land and malicious prosecution. Leeming JA described the statement of claim as a substantial document, which Mr Tabbaa said he had prepared himself using precedents and considerable effort [4].
Mr Tabbaa and his son were unrepresented during a five-day District Court trial in August 2025 [5]–[6]. On the first day, both said they would not give oral evidence. The exchanges recorded in the judgment show disagreement and confusion about whether documentary evidence could be tendered through cross-examination of police witnesses, and whether the plaintiffs’ cases remained open [7]–[8]. After the State sought judgment on the trespass and malicious prosecution claims, the trial judge clarified that the application was based on the plaintiffs’ election not to give evidence. The plaintiffs said they had documentary material they had not yet tendered [9]–[10]. Discussions about reopening the case followed, but neither plaintiff made an application to reopen [11]–[12]. The District Court then made orders on those claims and later entered judgment for the State on the remaining claims [13]–[14].
Mr Tabbaa brought proposed appeal processes concerning the District Court decisions. The judgment records unresolved questions about the proper appellate process, including whether an appeal as of right was available or leave was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW) [15]–[16]. Leeming JA described a single process addressing both the interlocutory decision and the later substantive judgment as the sensible course, while making clear that the referral ruling would not resolve the appeal-process dispute [17].
The proposed grounds included allegations of procedural unfairness. They concerned, among other matters, the distinction between oral and documentary evidence, whether the plaintiffs had closed their case, the opportunity to cross-examine witnesses and tender documents, and the discussion about reopening [18]–[22]. Leeming JA summarised those issues to assess the request for assistance, not to determine the appeal. He expressly said his summary did not limit the grounds ultimately advanced [19].
The central question was not whether a lawyer could help Mr Tabbaa. Leeming JA accepted that legal advice would assist Mr Tabbaa and that the Court itself would benefit from professional representation on his side [23]–[24]. The question was whether the interests of justice justified referring the matter to a limited pro bono panel.
The judgment drew on authorities concerning such referrals. It cited Sharpe v Hargraves Secured Investments Ltd for the proposition that the fact a litigant would be assisted by pro bono representation is not sufficient by itself, and that the Court must consider the interests of justice in each case [25]. It also cited Lane v Northern NSW Local Health District (No 2) and Kelly v Mosman Municipal Council on the benefits of legal assistance and the limits on asking practitioners to provide work without a fee [26]–[27]. M v Director General, Department of Family and Community Services, Renshaw v New South Wales Lotteries Corporation Pty Ltd and Allchin v Hunter Water Corporation (No 2) were cited as authorities to similar effect [27].
Several considerations favoured the application. The underlying allegations concerned police exercise of public power and personal liberty, which Leeming JA described as serious [28]. He also accepted that Mr Tabbaa would be advantaged by legal assistance, as would the Court [24], [29].
But the judge considered other factors decisive. First, he did not regard the proposed appeal as especially complex. He described it as relatively straightforward: the Court would assess procedural fairness by carefully reviewing the trial record, which he considered far from extensive [28]. Second, Mr Tabbaa had represented himself during a five-day trial, cross-examined police witnesses and made submissions. Leeming JA recognised that a legally qualified person might have taken different forensic steps, but concluded that Mr Tabbaa was capable of articulating his points [29].
The judgment’s reasoning therefore distinguishes between usefulness and necessity in the administration-of-justice sense. A lawyer’s assistance may be beneficial without meeting the threshold for a pro bono referral. The judge concluded that the Court could adequately review the proposed appeal without calling on the limited resources of practitioners willing to provide pro bono work [29]–[30]. He dismissed the motion [31].
This was a decision about the allocation of pro bono assistance, not a ruling on whether the District Court had denied procedural fairness. Nor did it determine whether the proposed appeal was properly brought as of right or required leave [15], [19].
The judgment does not purport to change the law governing pro bono referrals. Rather, it applies principles drawn from earlier NSW Court of Appeal decisions. The stated approach is an individual assessment of the interests of justice, with the mere fact that representation would help the applicant treated as insufficient on its own [25]–[27].
The authorities identified in the judgment describe two linked considerations. First, the Court benefits from professional representation, but that general benefit does not mean that pro bono assistance should be requested in every case [26]. Second, the Court must be mindful that barristers’ and solicitors’ pro bono time is a limited resource, to be requested where there is an appropriate reason connected to the overall administration of justice [27]. The judgment does not set out a formula, checklist or numerical threshold for applying those considerations.
The ruling’s contribution is its application of that approach to the circumstances described. It recognises the seriousness of claims involving police power and liberty, but treats the perceived simplicity of the appeal, the limited record and Mr Tabbaa’s demonstrated ability to articulate his position as important countervailing factors [28]–[30]. It illustrates that a serious subject matter and a clear benefit from representation do not automatically decide the application.
No “after” state of the law can be established from this judgment alone. The document supplies no later decisions or legislative amendments and does not state that the earlier authorities were changed, overruled or qualified. Its reasoning is best understood as a fact-specific application of the existing interests-of-justice approach described in the cited cases.
The legislation listed includes s 101 of the Supreme Court Act 1970 (NSW), but the judgment does not decide the unresolved question about appeal rights under that provision. It records the dispute concerning the $100,000 threshold and notes that the issue would not be resolved by the pro bono motion [15]. The ruling should not be read as deciding the interpretation or application of s 101 to Mr Tabbaa’s appeal.
At [25], the judgment states that “the mere fact that a litigant would be assisted by pro bono legal assistance is not sufficient of itself” for a referral. In plain English, showing that a lawyer would be useful is not enough. The Court must decide whether a referral is warranted in the particular circumstances.
At [26], the judgment notes that the Court benefits from professional legal assistance but that it is not always available, and that there are limits on imposing unpaid work on barristers. The practical point is that the Court recognises both the value of representation and the constraints on the volunteer pool.
At [27], the Court refers to the limited resources of the pro bono panel and the need for an appropriate reason, connected with the overall administration of justice, before requesting practitioners to give their time. This frames the issue as more than an individual applicant’s need: the Court must also consider the use of a scarce service.
At [28], Leeming JA identifies a factor in favour of assistance: the case concerned police power and personal liberty. He then explains why that factor did not determine the result. In his assessment, the proposed appeal was relatively straightforward and could be resolved through a careful review of a limited trial record.
At [29], the judge observes that Mr Tabbaa had conducted a five-day trial without a lawyer, including cross-examining police witnesses and making submissions. He does not say that this made legal assistance unnecessary in every sense. Rather, it informed his assessment that Mr Tabbaa could articulate his points and that the interests of justice did not require a referral in this case.
At [30], the Court concludes that the administration of justice could be adequately served without calling on limited pro bono resources. In plain English, the judge considered the assistance desirable, but not sufficiently necessary to justify a referral in the circumstances before him.
The decision is most relevant to applications for pro bono referrals where the Court is weighing an applicant’s need for assistance against the complexity and demands of the proceeding and the limited availability of pro bono practitioners. It makes clear that an applicant’s likely advantage from representation, even coupled with a corresponding benefit to the Court, is not determinative [24]–[30].
The specific combination considered here included an applicant who was impecunious, articulate and familiar with the proceedings; a proposed appeal focused on procedural fairness; a record the judge regarded as limited; and an underlying dispute involving allegations about police conduct and personal liberty [23], [28]–[30]. The result demonstrates that serious subject matter can favour a referral without requiring one.
The judgment also shows the importance of the Court’s assessment of the work required. Leeming JA considered that the proposed appeal could be assessed by reviewing the trial record and was not especially complex [28]. Where an application concerns a materially different proceeding, a much larger record, or issues the Court considers substantially more complex, the balance may be different. The judgment does not prescribe the outcome for those other situations.
The decision does not establish that articulate self-represented litigants should generally be refused assistance, nor that procedural-fairness appeals are inherently straightforward. Its reasoning depends on the judge’s view of this applicant, these proposed grounds and the record described in the ruling. It also does not establish that pro bono assistance is available whenever the subject matter is serious.
The judgment identifies and applies earlier authorities, but the supplied text contains no later cases discussing Tabbaa v State of New South Wales [2026] NSWCA 70. Its subsequent treatment therefore cannot be determined from this source.
The earlier cases cited are Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288, Lane v Northern NSW Local Health District (No 2) [2014] NSWCA 32, Kelly v Mosman Municipal Council [2010] NSWCA 370, M v Director General, Department of Family and Community Services [2013] NSWCA 118, Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 and Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315 [25]–[27]. Leeming JA relied on them for the interests-of-justice approach and the limited availability of pro bono resources. The judgment does not describe them as overruled or disapproved.
The District Court decision, Tabbaa v State of New South Wales; Tabbaa v State of New South Wales [2025] NSWDC 495, is referred to as the source of the substantive judgments under proposed appeal [14]. It was not reviewed on its merits in the pro bono ruling. Accordingly, this ruling should not be treated as appellate endorsement of the District Court’s reasoning.
The key unresolved question is whether the proposed appeal would establish that the District Court proceedings denied Mr Tabbaa procedural fairness. The motion ruling summarises his complaints but does not decide them [18]–[22], [31]. The judgment indicates that resolution would require a careful review of the trial record, including the exchanges about documentary evidence, closing the plaintiffs’ cases and reopening [19], [28].
A separate unresolved issue is the proper appellate process. The judgment records a dispute about whether an appeal as of right was available or leave was required under s 101(2)(r) of the Supreme Court Act 1970 (NSW) [15]–[16]. Leeming JA suggested that one process might encompass both the interlocutory decision and the later substantive judgment, but this was described as a sensible course, not determined as a final procedural ruling on the appeal [17].
The reasons also leave open the eventual scope of any appeal grounds. Leeming JA said that his summary was not comprehensive and should not be understood to confine grounds ultimately put forward [19]. The ruling therefore does not determine which grounds would be accepted, how the trial transcript should be interpreted, or whether any alleged procedural error affected the District Court’s decisions.
Finally, the judgment gives no general test for how much complexity, seriousness or applicant capacity is enough to warrant pro bono assistance. It applies the interests-of-justice assessment to the circumstances before it, while emphasising that the benefit of representation alone does not suffice [25]–[30].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Tabbaa v State of New South Wales [2026] NSWCA 70
Hearing dates: 20 April 2026
Decision date: 20 April 2026
Before: Leeming JA
Decision: 1. Dismiss the notice of motion dated 7 April 2026.
2. No order as to the costs of the State of the notice of motion, with the intent that the State bear its own costs of the notice of motion.
3. Vacate the listing before the Registrar on Wednesday, 29 April 2026 at 9:15am.
4. Stand over the proceedings, including the State’s motion of incompetency, to 9:15am on Wednesday, 27 May 2026.
Catchwords: PROCEDURE – application for pro bono referral – impecunious but articulate applicant – relatively straightforward appeal – trial including cross-examination conducted by litigant in person – the fact that applicant would be advantaged by pro bono assistance insufficient – application refused
Legislation Cited: Supreme Court Act 1970 (NSW) s 101
Uniform Civil Procedure Rules (NSW) r 7.36
Cases Cited: Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315
Kelly v Mosman Municipal Council [2010] NSWCA 370
Lane v Northern NSW Local Health District (No 2) [2014] NSWCA 32
M v Director General, Department of Family and Community Services [2013] NSWCA 118
Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41
Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288
Tabbaa v State of New South Wales; Tabbaa v State of New South Wales [2025] NSWDC 495
Category: Procedural rulings
Parties: Mouhammad Riad Tabbaa (Applicant)
State of New South Wales (Respondent)
Representation: Counsel:
Applicant in person
C Coventry (Respondent)
Solicitors:
Wotton Kearney (Respondent)
File Number(s): 2025/00496774
Publication restriction: Nil
HIS HONOUR: Mr Mouhammad Riad Tabbaa, by notice of motion filed on 7 April 2026, seeks a referral pursuant to UCPR r 7.36 for pro bono assistance, either by way of a solicitor or a barrister, to assist him in pending proceedings in this Court. It is necessary to say something about the nature of the application for leave to appeal which he has brought. Most of the following derives from an affidavit read on the motion before me, but evidently prepared in support of the State’s application for incompetency of what, at that stage, had been purportedly an appeal as of right brought by Mr Tabbaa.
Mr Tabbaa appears to have been arrested and detained twice in 2018. The first occasion was on the afternoon of 25 June for some two and a half hours. The second was on 7 July. On that occasion, he was detained for some hours in the late evening and early hours of the morning. Subsequently, he was charged with one count of intimidation, the precise circumstances of which are immaterial for present purposes. He was convicted in the Local Court but exercised his right of appeal to the District Court.
In the District Court, he was successful, and his conviction was quashed. Essentially, as summarised by that Court (constituted by Pickering DCJ), that was on the basis that although the judge, by reference to photograph 9 in evidence before him, was suspicious that he was holding some item, he could not be satisfied beyond reasonable doubt that it was a weapon.
Consequent upon his success in the District Court, he brought proceedings in the District Court, albeit almost four years later, in August 2023, advancing four tortious claims: wrongful arrest, false imprisonment, trespass to land and malicious prosecution. The statement of claim is a document of some 15 substantive pages, and deals comprehensively with the law (which is far from straightforward in claims against the State based on tortious conduct by police officers) and particulars of the allegations of fact giving rise to each tort, as well as allegations of loss and damage, including aggravated and exemplary damages. Mr Tabbaa has told me, and I accept, that he, with a great deal of effort, and reliance upon other precedents, prepared that pleading himself.
The evidence before me is that a solicitor was, for a time on the record for Mr Tabbaa as plaintiff, but he tells me, and for present purposes I shall accept, that that was at least primarily and perhaps wholly for the purpose of serving subpoenas. In any event, and this is what matters most for the exercise of discretion that is before the Court today, that solicitor ceased to act a considerable time before the matter went to trial. Also, and travelling concurrently with Mr Tabbaa’s action, was a separate action brought by his son. That pleading is not before me, and although the outcome was materially the same, as far as is known, no appeal or application for leave to appeal has been brought by him.
Both plaintiffs were unrepresented through the entirety of a trial which had been set down for seven days to commence on Monday, 25 August 2025. The hearing took an unusual course and it is that which gives rise to the entirety of the proposed notice of appeal.
The plaintiffs on the first day advised that they were not going to be giving evidence. It is apparent that the trials proceeded, as is common in the District Court, without the service of affidavits, and with lay evidence being adduced in chief. There was the following exchange (transcript, 25 August 2025, pp 10-11):
HIS HONOUR: Are you about to give evidence now?
FIRST PLAINTIFF: In the stand?
HIS HONOUR: Yes.
FIRST PLAINTIFF: No, that’s all right, no I won’t be doing any of this.
HIS HONOUR: You’re not giving any evidence?
FIRST PLAINTIFF: No.
HIS HONOUR: I see. Have you thought that through - that decision through?
FIRST PLAINTIFF: Yes, sir.
HIS HONOUR: Very well. Mr [Tabbaa] Junior [the plaintiffs had confirmed that they were content to be known in order to avoid confusion as Mr Tabbaa Senior and Mr Tabbaa Junior].
SECOND PLAINTIFF: Yes. Yes your Honour.
HIS HONOUR: It’s your turn to give evidence then.
SECOND PLAINTIFF: I won’t be giving evidence. I’m heavily relying on the evidence that was produced during the proceedings that took place from 2018 to 2020.
HIS HONOUR: Well, very well, and so you’re not giving any oral evidence?
SECOND PLAINTIFF: No, I’ll--
HIS HONOUR: You have documentary evidence, do you?
SECOND PLAINTIFF: That’s right, your Honour.
HIS HONOUR: Very well, you’re going to tender that.
HIS HONOUR: So that would mean, would it not, that if Mr Gollan doesn’t call the police officers, there won’t be any evidence at all for your case?
FIRST PLAINTIFF: He has to call them.
GOLLAN [counsel for the State]: No I don’t.
FIRST PLAINTIFF: They’ve been subpoenaed.
HIS HONOUR: Well I asked you whether you’d thought through question carefully, and Mr Tabbaa Senior you told me you had, and Mr Tabbaa Junior I gather you thought it through.
SECOND PLAINTIFF: That’s right, your Honour.
HIS HONOUR: Very well. Take - so I just want to make it absolutely crystal clear, you’re not adducing any evidence in your case other than evidence - other than documentary evidence which was sought to be entered - admitted, I should say, during cross-examination of the relevant police officers. That - have I got it correct?
FIRST PLAINTIFF: Your Honour, you’re close to that. I’ll try to rephrase. That way you understand it. We would be submitting – we’d be tendering, we’d be requesting to tender documents through cross-examination of officers.
HIS HONOUR: Right, and you’ve thought through what will happen if those policemen aren’t called?
FIRST PLAINTIFF: Well, if they aren’t called, we would have to adjourn and I'll personally have to subpoena them.
HIS HONOUR: Well, it doesn’t work like that. You’ve got to - I empathise with you about appearing without legal representation, although that decision is yours and yours alone but I’ve - and I’ve got limits on the extent to which I can help you, but I think I can help you insofar as telling you the broad way in which a case runs, and that is the plaintiff adduces all its evidence first, and it might be supplemented in cross-examination, but you’ve got to – you’re effectively tell me that your case is closed subject to cross-examination.
FIRST PLAINTIFF: It’s not closed, your Honour.
HIS HONOUR: Well, it’s got to be closed. You can’t just leave it open.
FIRST PLAINTIFF: The case will be open until the final cross-examination of those officers.
HIS HONOUR: Well-
FIRST PLAINTIFF: We will be cross-examining the officers and the particular documents on particular parts of this transcript, on particular testimonies, on particulars.
HIS HONOUR: Very well, I understand your position.
There was an adjournment, and following receipt of the transcript, the State served a notice of motion seeking, relevantly, judgment in its favour with respect the trespass to land and malicious prosecution claims. The motion was returnable the following day, which was the second day of the trial.
On the second day, the plaintiffs sought an adjournment in order to respond to the motion. The primary judge accommodated that by adjourning it to the Wednesday. However, there was an exchange clarifying the essence of what the State sought, namely, only that the claims for trespass and malicious prosecution be struck out. His Honour said this (transcript, 26 August 2025, p 8):
HIS HONOUR: It means that you - to put it in layman’s terms, it means you, that the motion says you can’t have your claims for trespass to land and malicious prosecution any more because of your election not to go into evidence. That’s putting it as bluntly as I can.
SECOND PLAINTIFF: Your Honour, we’re relying on-
FIRST PLAINTIFF: People.
SECOND PLAINTIFF: On volumes 1 to 3 which is just under 80 documents to support those torts and we haven’t had the opportunity to tender any of them yet.
HIS HONOUR: Well you were given the opportunity to tender them yesterday.
FIRST PLAINTIFF: Well they weren’t ready your Honour. For some technical reason they were not ready.
HIS HONOUR: Well you never told me that.
FIRST PLAINTIFF: Well I’m saying that now.
The matter returned on the third day and there was mention of an application to reopen. There was also discussion between the judge and the plaintiffs about whether they had closed their case. There is a link between the two. The plaintiffs seem to have taken the view that because they denied that they had closed their case, they could not consistently with that apply to reopen it. After that debate, there was a short adjournment because the second plaintiff had said he wished to get some legal advice. A short adjournment was granted for that purpose. It is not clear on the face of the transcript how long it was for.
Following that adjournment, there was a further exchange concerning reopening of the case. Insofar as that exchange involved Mr Tabbaa Senior, it included the following:
HIS HONOUR: Is your view the same as the one espoused by your son?
SECOND PLAINTIFF: What view, sir?
HIS HONOUR: That you are not going to make an application for leave to reopen unless there’s some sort of protection against the inference that the case was otherwise closed.
FIRST PLAINTIFF: Well that’s right, for I do disagree with any inference that the case was closed. My understanding is the case isn’t. My understanding at least, the case was not closed.
HIS HONOUR: Well yes, we’ve been through this before.
FIRST PLAINTIFF: Yes, I understand. Yes, I’m just re-emphasising my view on the - on this particular point. My understanding, the case was not closed.
HIS HONOUR: You’re not making an application for leave to reopen either. Your son’s not. You’re not either, correct?
FIRST PLAINTIFF: No, I’m not making an application, no.
HIS HONOUR: Thank you, yes.
Thereafter, the State moved on application and gained the orders that it sought on the basis that the plaintiffs bore the onus on the claims based on trespass and malicious prosecution. His Honour delivered short ex tempore reasons.
The hearing proceeded on the claims for wrongful arrest and false imprisonment, and with, once again, both plaintiffs being unrepresented. The State called four police officers who were cross-examined. Ultimately by a reserved judgment delivered on 28 November 2025, the District Court ordered that “there be judgment and verdict for the defendant against the plaintiff” in each matter: Tabbaa v State of New South Wales; Tabbaa v State of New South Wales [2025] NSWDC 495.
In the meantime, Mr Tabbaa (Senior) had filed process in this Court seeking to appeal from the dismissal of his causes of action for trespass and malicious prosecution on the third day of the trial. He says, and I accept, that this was done in order to prevent the expiration of the three month period from which to appeal. There has been – and still is (and will not be resolved by anything I say) – a dispute as to whether there is an appeal as of right or, in light of the likely best outcome of success on the appeal, only an application for leave to appeal because of the $100,000 threshold in s 101(2)(r) of the Supreme Court Act 1970 (NSW).
There has also been filed a notice of intention to appeal from what I will call the substantive judgment on the actions for wrongful arrest and false imprisonment. It seems likely, although the position is not entirely clear, that Mr Tabbaa (Senior) has sought to file either a notice of appeal or an application for leave to appeal from the orders made on 28 November 2025, and the consequent costs orders. He showed to me a notice of intention to appeal from those orders, but has said that there has been a difficulty in the Registry accepting it or, to be more precise, accepting his application for a waiver of fees for the filing of that process.
Constructively, and putting to one side the application before me today, the sensible course to which Ms Coventry, who appeared for the State, has no objection, is for there to be a single process in this Court, and for that single process to encompass the whole of Mr Tabbaa’s complaints with the District Court in the underlying action. That is probably most readily done – and may already have been suggested by the Registrar – by filing an amended summons seeking leave to appeal in this Court, with the summons referring to not only the interlocutory judgment on the third day of the trial, but also the judgment on 28 November 2025, and the proposed grounds of appeal extending to the grounds on the substantive judgment.
Mr Tabbaa has supplied a notice of appeal from the judgment on the third day of the trial. It contains five proposed grounds, all of which are directed to complaints of procedural fairness. The first is in general terms. The second asserts either that the primary judge erred, or did not provide procedural fairness, by striking out the claims for trespass and malicious prosecution “before the first plaintiff closed his case and/or concluded the tendering of documentary evidence”. The third deals with the inability to cross-examine prospective witnesses in relation to the police prosecutor's conduct, preventing the tender of documentary evidence, and omitting certain findings. The fourth squarely asserts that there was no procedural fairness in the finding that the plaintiffs had closed their case on the first day of the trial. The fifth was a complaint about his Honour's reaction to the proposition that the documents would be tendered through the cross-examination of the police witnesses.
[i]t has been recognised that the mere fact that a litigant would be assisted by pro bono legal assistance is not sufficient of itself for an order for referral to be made. The Court must consider what the interests of justice require in each case.
[i]t is true that in every case this Court benefits from the availability of professional legal assistance, however it is not always available, and there are limits to the cases in which this Court can impose upon members of the bar to provide assistance without return by way of fee.
The same point was made by Campbell JA in Kelly v Mosman Municipal Council [2010] NSWCA 370 at [19], with his Honour noting that the resources of the pro bono panel are limited. His Honour said that the Court should ask them to give up their time and exercise their skill “only in circumstances where there is an appropriate reason, for the overall administration of justice, to make that request”. Similar authorities to the same effect were made in M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [21], in Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [10] - [12] and in Allchin v Hunter Water Corporation (No 2) [2024] NSWCA 315 at [12] - [13].
Telling in favour of a grant of pro bono assistance is the fact that the underlying conduct is the exercise of public power by members of the NSW Police Force, which is of itself serious, involving, as it does, the personal liberty of members of our society. On the other hand, having heard Mr Tabbaa elaborate his submissions at some length, and having regard to their nature as best I can see from the notice of appeal that is before me, I do not agree that this is an especially complex case. To the contrary, this is a relatively straightforward matter, where the Court will determine whether or not the unrepresented litigant has been accorded procedural fairness by engaging in a careful review of the record (which, I note, given what happened at trial, is far from extensive).
I also note that over the course of a five-day trial, Mr Tabbaa appeared without a lawyer, and in addition to the forensic steps referred to above, proceeded to cross-examine police witnesses and make submissions on his own behalf. No doubt he took steps which a legally qualified person would have approached differently; however, he is far from incapable of articulating his points. I reiterate, if the question were simply whether Mr Tabbaa would be advantaged and whether the court would be advantaged by the appointment of pro bono legal assistance, the answer would readily be yes. However, in the particular circumstances of this case, I am not satisfied that the interests of the administration of justice warrant that course being taken.
Another way of putting this is that despite the advantages to the Court and to Mr Tabbaa – and incidentally to the State, which I should add has adopted a neutral stance to the application – the administration of justice will be adequately served without calling upon the limited resources of barristers and solicitors who are prepared to give their time pro bono so that Mr Tabbaa can vindicate his rights, and if appropriate, obtain the benefit of a judgment in a pecuniary sum in his favour.
For those reasons, I will dismiss the notice of motion dated 7 April 2026.
HIS HONOUR: Ms Coventry, I don’t see any reason for costs for you. You’ve been of assistance, but your stance has been neutral.
**********
Tabbaa
State of New South Wales
The notice of motion dated 7 April 2026 was dismissed. There was no order as to the State’s costs of the motion, with the intent that the State bear its own costs. The listing before the Registrar on 29 April 2026 was vacated, and the proceedings, including the State’s motion of incompetency, were stood over to 9:15 am on 27 May 2026.
I have not in that summary given full justice to the articulation of the appeal grounds. It is tolerably clear that at least in large measure, those grounds will stand or fall based on a review of the entire conduct of the trial. It is for that reason that I have set out in these reasons some – but not all, and I have made no attempt to be comprehensive – of the exchanges that occurred on the first, second and third days of the trial. The material before me does not extend to what happened on the fourth and fifth days of the trial, nor does it of course extend to the grounds of appeal from that judgment, although Mr Tabbaa has said from the Bar table that they are much the same, and his focus is upon a denial of procedural fairness. Having said that, these reasons do not, and should not be understood to, confine the grounds that ultimately are put forward.
Plainly enough, Mr Tabbaa says that he has suffered an injustice, including for the following reasons. The first concerns a distinction between testimonial evidence and documentary evidence. He says that the primary judge failed to appreciate that he wished to tender documentary evidence in support of his case after he had advised he would not be giving testimonial evidence.
Secondly, there is a dispute about what it means to have closed his case. He says, and so far as I can see he is right about this, that he never said explicitly during the trial that he had closed his case, and from time to time he denied having done so. On the other hand, the first day of the trial appears to proceed on the basis that any documentary tender was only to happen through cross-examination of the police witnesses.
Thirdly, there is a concern about whether Mr Tabbaa was sufficiently aware of an entitlement to apply to reopen his case, and perhaps it is said that the primary judge did not sufficiently ensure that Mr Tabbaa understood his rights, although there were exchanges about this, and at one stage an adjournment for at least the son to obtain legal advice about the course they were taking.
The points I have just distilled were also advanced, effectively and reasonably succinctly, by Mr Tabbaa, as I inquired of him as to the utility of the grant of pro bon**o assistance which he seeks. It is clear to me that, first of all, Mr Tabbaa has a more than adequate command of English, and secondly, is very familiar with the course of the trial, and the forensic steps taken by both sides.
Mr Tabbaa has also said that the appeal is complex and that he would be assisted by obtaining legal advice. I have no doubt that he would be assisted by obtaining legal advice. I also have no doubt that the Court would be assisted by his obtaining legal advice, especially if the assistance extended to appearing for him in this Court.
That, however, is not dispositive of the discretion I am called upon to exercise. This has been recognised in many cases. In Sharpe v Hargraves Secured Investments Ltd [2013] NSWCA 288 at [42], Ward JA said (citations omitted):
COVENTRY: That is correct. The only possible submission I would make would be that costs be costs in the cause and in the proceedings generally.
HIS HONOUR: I note the submission. Is there a basis for it?
COVENTRY: Simply to reflect that we have put material before the court that has assisted the Court.
HIS HONOUR: Mr Tabbaa, did you want to say anything about that?
APPLICANT: About what, your Honour?
HIS HONOUR: About costs. You’ve come to the Court, you've asked by your motion for pro bono assistance. I have ruled against you. Ms Coventry says that her costs should be costs in the cause. Do you want to say anything against that?
APPLICANT: A matter for the Court.
HIS HONOUR: The State seeks an order that its costs of the notice of motion be costs of the cause. Ms Coventry says, accurately, that she has put material before the court appropriately which would not otherwise have been before the court. In the circumstances of this case, and bearing in mind that Mr Tabbaa’s complaint is against the State, I think the appropriate order is that there be no order of the costs of the State, which did not participate in a partisan way on the notice of motion, with the intent that the State bear its own costs of the notice of motion.