Sebie v Pham [2021] NSWSC 470

Supreme Court New South Wales

Medium Neutral Citation: Sebie v Pham [2021] NSWSC 470 Hearing dates: On the papers Decision date: 04 May 2021 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Dismiss the notice of motion filed on 23 October 2019 by the second plaintiff. Catchwords: CIVIL PROCEDURE — Representation — Unrepresented litigant — Application for pro bono referral Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), Division 9 Part 7, rr 7.14, 7.36 Cases Cited: Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 M v Director General, Department of Family and Community Services [2013] NSWCA 118 Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 11) [2019] NSWSC 115 Category: Procedural rulings Parties: Ramzy Sebie (First Plaintiff) Rose Sebie (Second Plaintiff) Andy Duong Duc Pham (First Defendant) Representation: Counsel:

Solicitors: File Number(s): 2018/00137809 Publication restriction: Nil

Judgment 1. 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). 2. 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. 3. 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). 4. 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). 5. It is not apparent whether the notice of motion was served on the defendants. 6. 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). 7. 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. 8. 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. 9. 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". 10. 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. 11. 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).