Supreme Court New South Wales Medium Neutral Citation: Secure Funding Pty Ltd v Hamilton [2022] NSWSC 882 Hearing dates: 29 June 2022 Date of orders: 29 June 2022 Decision date: 29 June 2022 Jurisdiction: Common Law Before: Lonergan J Decision: Application for pro-bono assistance refused Catchwords: CIVIL PROCEDURE – unrepresented defendants – possession – oral request for referral – insufficient information supplied to satisfy Court of matters in 7.36(2) – application refused at this stage Legislation Cited: Uniform Procedure Rules 2005 (NSW) Category: Procedural rulings Parties: Secure Funding Pty Limited (Plaintiff) Wayne Keith Hamilton (First Defendant) Michele Ann Masters (Second Defendant) Representation: Solicitors: Norton Rose Fulbright (Plaintiff) Wayne Keith Hamilton (For Defendants) File Number(s): 2021/00350675 Publication restriction: Nil Judgment – Revised EXTEMPORE RE: Application for Pro Bono Assistance 1. In the context of case-managing these proceedings the defendants indicated by email to my chambers that they wished to make an application to the Court for pro bono assistance. 2. The proceedings were commenced by statement of claim on 9 December 2021 and seek a writ of possession for property at [REDACTED]. The statement of claim alleges that at the time of its filing a sum of over $155,000 was owed under a mortgage over that property related to a loan agreement commenced on 8 May 2007. The statement of claim pleads that there were defaults under the loan when repayments due on 4 October 2021 and 23 November 2021 were not made and that there has been continuous arrears balance and, therefore, default under the loan from 4 October 2021 to 23 November 2021. That default position appears to be continuing, the first defendant indicating to me today that there have been no payments made since that time because it is his position that the contractual situation between the parties has varied because of other decisions and arrangements, the details of which I do not have before me in the file that relates to these possession proceedings. 3. Defences were filed on 26 April 2022 that really did not raise any allegation. However, the defendants have not had the benefit of on the record legal assistance in these proceedings. 4. On 24 May 2022, I had the matter listed before me for directions, at which point Mr Hamilton, the first defendant, appearing for himself, indicated that there were amended defences that he was in the process of forwarding to the Court. Those amended defences arrived and were dated 23 May 2022. These documents were prepared without the benefit of legal assistance and seem to plead that the relevant loan contract was "subsumed" into a prior judgment dated 12 February 2009, case number 16132/2008 and, therefore, the defendants take the view that interest charges can no longer be pursuant to the loan agreement entered into in 2007 and that interest should be charged in accordance with r 36.27 of the Uniform Procedure Rules 2005 (NSW). 5. When the matter was before me for further directions on 7 June 2022, I made case management orders for the filing and service of affidavit evidence with a view to allocating the matter a hearing date. I also noted that if the defendants wished to make an application for pro bono assistance, they should do so by emailing my associate within seven days, although that request was not made until more recently and so I convened a directions hearing today to deal with that application or request, and an adjustment, if necessary, to the timetable I set down on 7 June 2022. 6. Mr Hamilton appears today in his own interests and that of his co-defendant, his partner, Ms Masters. He requested a referral for pro bono assistance, advising me this morning that he had spoken to a number of lawyers, two of whom at least told him that the fees they would charge and require to be paid up front before they did any work for him would be $60,000 or more. He also informed the Court that he had sought Legal Aid and had been refused and that he and his partner just did not have the necessary money to retain a lawyer to assist in the proceedings. 7. After the directions hearing this morning, he forwarded to chambers at my request material that evidences his attempts to obtain legal assistance. One was a letter from Legal Aid which confirms that Legal Aid has been refused, dated 17 March 2022, and a letter from a firm of solicitors, Navado Legal & Financial Group dated June 2019. The latter appears to deal not with the current possession proceedings (which were not commenced until late 2021) but some other previous litigation in respect of the property, a judgment of the Supreme Court dated 12 February 2009, a mortgage from Secure Funding and a review by the Credit and Investments Ombudsman from June 2018. There are some other documents referred to in that letter which further confuses whether that letter is referring to potential advice and costs of these proceedings or something irrelevant or only indirectly relevant. 8. I refer to that second document because it is said that that document was from a firm that estimated and required a significant sum of costs to be paid up front before it would further advise Mr Hamilton. The letter provides an estimate of a very broad estimate of potential costs $15,000 to $70,000 - and does not appear to require payment upfront so I do not have clarity as to the position, and unlike many applications under this rule, I don't have any affidavit material that sets out attempts made in an orderly fashion. I am not being critical in making that observation but simply say that the material that I do have and what I do know is not enough for me to be satisfied to the necessary level as required by rule 7.36(2). 9. For the assistance of Mr Hamilton, I note the rule is UCPR 7.36 which 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 for legal assistance." 1. Subrule 2 provides that: "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. 1. Subrule 2A says that 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 three years unless the court is satisfied that there are special reasons that justify a further referral. 2. The difficulty I am having is to be clearly satisfied as to the means of the litigant and the capacity to obtain legal assistance outside the scheme more information is required. Mr Hamilton has advised me his partner earns about $60,000 a year as an aged care nurse and he is currently not earning any income due to some health issues that are ongoing, although he says he is seeking work but is having trouble obtaining work because he is not vaccinated against COVID-19. 3. Mr Hamilton told me mortgage payments are not being made. 4. Mr Hamilton strikes me as an articulate and intelligent person who has made some efforts to obtain legal assistance but he is baulking about the potential cost, understandably, but I am not entirely sure that I have the full range of attempts made to obtain legal assistance as some of the evidence before me in the form of a letter from Navado Legal suggests he is actually seeking assistance for something else, not for defence of the possession proceedings, which is the only proceeding currently before the Court. 5. The amended defences that I have seen today appear to adopt the position of some prior litigation and the result of it somehow has a bearing on the application for possession. I am simply unable to assess whether that is correct or reasonable or even relevant, although Mr Hamilton obviously holds the view that it is. Having reviewed the only affidavit material on the file that seems to be addressed to the issues in the proceedings, an affidavit of Mr Merciea for the plaintiff, affirmed on 20 June, there appears to be an assertion by the plaintiff that although a judgment was obtained against the defendants in 2009, there were agreements entered into regarding repayment of outstanding liabilities owed to the plaintiff by the defendants, and this is set out in paragraph 11 of Mr Merciea's affidavit. 6. It seems to me that there is a level of complexity associated with the litigation that would in the normal course justify a referral for pro bono assistance, so that aspect at least of the requirements of r 7.36 are satisfied. But what isn't satisfied is clarity as to the means of the litigant and the capacity to obtain legal assistance outside the scheme, and it seems to me at this stage I should refuse the application, but subject to reviewing and revisiting the application should Mr Hamilton and his co-defendant wish to put further material before the Court so that I can address those aspects. More broadly, it does seem to me to be in the interests of justice for them to have some legal assistance because at the least it may help in their understanding of the operation of earlier events that are, it seems, in Mr Hamilton's view, relevant to these proceedings, possibly based on a misunderstanding of the effect of the earlier proceedings and their result and or resolution. 7. Accordingly, at this stage I refuse an application for pro bono assistance, but I order that if the defendants wish to have further consideration made of an application for pro bono assistance, they should file and serve an affidavit within seven days, including other information they would like the Court to consider on such an application. ********** Amendments 11 November 2022 - Redaction in par 2. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2022