Uin v Coles Supermarkets Australia Pty Limited [2022] NSWSC 300

Supreme Court New South Wales

Medium Neutral Citation: Uin v Coles Supermarkets Australia Pty Limited [2022] NSWSC 300 Hearing dates: 18 March 2022 Date of orders: 18 March 2022 Decision date: 18 March 2022 Jurisdiction: Common Law Before: Lonergan J Decision: Pursuant to Uniform Civil Procedure Rule 7.36, the plaintiff is referred for assistance of a barrister and a solicitor. Catchwords: CIVIL PROCEDURE – Representation – Unrepresented litigant – referral to solicitor and barrister on the Pro Bono panel – not likely to obtain legal assistance outside the scheme – interests of administration of justice – Uniform Civil Procedure Rules 2005 (NSW) r 7.36 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Alice Uin (Plaintiff) Coles Supermarkets Australia Pty Limited (Defendant) Representation: Counsel: A Uin (Plaintiff - Self Represented) N Polin SC (Defendant)

Solicitors: A Uin (Plaintiff - Self Represented) McCulloch & Buggy Lawyers (Defendant) File Number(s): 2019/390185 Publication restriction: Nil

Judgment 1. These proceedings were commenced by a statement of claim filed in the Parramatta District Court on 11 December 2019. The proceedings involve a fall suffered by the plaintiff in June 2018 outside a Coles supermarket at Penrith. The plaintiff sues for negligence, describing the circumstances at the entry of the supermarket that she says caused her fall, and claims damages for injuries she suffered when she fell. 2. The defendant filed a Defence in August 2020. It denies liability, denies it was negligent and says that the plaintiff was contributorily negligent. That means they assert the accident is partly or perhaps entirely her own fault. 3. The matter was transferred to the Supreme Court at some stage not entirely clear on the file, however, I should note that a Statement of Particulars filed on 26 March 2021 sets out significant injuries and disabilities that Ms Uin says she continues to suffer, including what is generally described as complex regional pain syndrome, affecting her right lower limb in particular. 4. Ms Uin formerly worked as a nurses' aid. The Statement of Particulars sets out significant past expenses, future treatment needs and the need for home care and assistance. 5. There is a very detailed Statement filed in October 2021 by Ms Uin, prepared by her then solicitors Malouf & Partners. 6. It is evident that in December 2021 those solicitors ceased to act, by filing a Notice of Intention to Cease to Act and then a Notice of Ceasing to Act. This means that Ms Uin has no legal representation. Her case is listed for hearing next Monday, with a four-day estimate. 7. Within a court book, prepared at short notice and which I received with thanks from the defendant's solicitors, I can see from a brief reading of the material in it that there are significant issues regarding, in particular, the causation of Ms Uin's ongoing problems and in particular her chronic regional pain syndrome. 8. There is a report from Dr Lee, psychiatrist, who has diagnosed a major depressive disorder. He notes that he has been told that Ms Uin is unable to work and therefore remains unemployed. 9. I understand from Ms Uin's Statement that she has been in dire financial straits and has at times needed to rely on assistance from missions and other places to help her with accommodation. 10. Since February 2020 she has lived in Colless Street, Penrith, and receives a small amount of assistance from a company called ComPacks with housework, but it is not financial assistance. I understand she is on the disability pension. 11. It is evident to me that the matter cannot proceed next week because the complexities involved in presenting the case mean that Ms Uin really must have, at the very least, a barrister and preferably also a solicitor to assist her in presentation of the case. 12. Complicating matters a little further is that it appears a more recent meeting of the rheumatological experts indicated that there are outstanding matters of evidence and preparation in respect of - to put it broadly - pre-existing injuries and underlying causation issues. 13. When I mentioned the matter yesterday to find out from Ms Uin her situation, Ms Uin understandably was upset and felt that she had not the skills to find and retain a solicitor to take her case. She felt that her experience of lawyers has indicated that they rushed her and did not listen to her, and she feels understandably upset and overwhelmed about the subject matter of the proceedings and the fact that she does not have legal assistance to conduct them. 14. I have taken all of that into account in reaching the view that I should refer Ms Uin for assistance from the Supreme Court pro bono scheme. 15. Rule 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) allows me to refer a litigant to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance if I am satisfied that it is in the interests of the administration of justice. For the purposes of that decision, I may take into account (a) the means of the litigant, that is, their financial capacity, 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 I consider appropriate. 16. Subrule (4) provides that 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. I appreciate the rule indicates a reference to a barrister or solicitor, but subrule (6) states: "A referral to a barrister does not prevent a referral also being made to a solicitor, and a referral to a solicitor does not prevent a referral also being made to a barrister." 1. In the circumstances of this case, it is my view that the referral should be to both a barrister and solicitor, and that is the referral I will make. 2. Just before I do so, I would make the following observations about those matters set out in subrule (2) that I may take into account and have taken into account. First, I am satisfied that Ms Uin is in receipt of a disability pension, and matters within the court book provided to me explain well why she would have difficulty working as an AIN. 3. Without any criticism at all of Ms Uin, she has candidly set out her educational qualifications, which are not to a high level. Her education was initially in Papua New Guinea and once she arrived in Australia in 2005 she has completed some other educational courses, to her credit, including a computer course, an English language course and a certificate course in aged care. She also has a first aid certificate, and has completed medication management training and, more recently, a certificate in first aid cardiopulmonary resuscitation and basic emergency life support, obviously all relevant to her former work as an assistant in nursing. 4. She is divorced and does not have any particular family assistance other than intermittently. 5. I am satisfied that Ms Uin would have difficulty obtaining legal assistance outside the scheme, partly because she feels intimidated and is not confident about how to go about this process. The proceedings, as I have already noted, are difficult and complex, and have an emotional overlay which means that Ms Uin really needs professional assistance to manage them. 6. I am satisfied that the referral should take place, and so I refer Ms Uin for the assistance under the pro bono scheme of a barrister and a solicitor, and I am satisfied it is in the interests of the administration of justice to do so.