Supreme Court New South Wales Medium Neutral Citation: Hannam v State of New South Wales (No 10) [2022] NSWSC 1194 Hearing dates: On the papers Decision date: 06 September 2022 Jurisdiction: Common Law Before: Adamson J Decision: (1) Refer the plaintiff to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 7.36(1). (2) Direct that the following documents be provided to the Panel at the time of the referral: (a) A copy of these reasons; (b) My reasons in the principal judgment; (c) The defendant's application dated 3 June 2022; and (d) The submissions and affidavits filed by the parties on the defendant's application to date. (3) Stand the proceedings over for further mention at 9.15am on 23 September 2022. Catchwords: CIVIL PROCEDURE – pro bono referral – whether referral in interests of justice – where costs sought against former solicitor – issue whether privilege ought be waived – referral made Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.36 Cases Cited: Hannam v State of New South Wales (No 9) [2022] NSWSC 648 Category: Procedural rulings Parties: Andrew Robert John Hannam (Plaintiff/First Respondent) State of New South Wales (Defendant/Applicant) Samuel Tierney (Second Respondent) Ken Cush & Associates (Third Respondent) Representation: Counsel: R Coffey (Defendant/Applicant) T Pauletto (Second and Third Respondents) Solicitors: Wotton Kearney (Defendant/Applicant) Gilchrist Connell (Second and Third Respondents) File Number(s): 2019/51618 JUDGMENT Introduction 1. Andrew Hannam (the plaintiff) brought proceedings for damages in tort against the State of New South Wales (the defendant). Samuel Tierney and the firm Ken Cush & Associates (Cush) acted for the plaintiff in the proceedings. 2. On 23 May 2022, I published reasons (Hannam v State of New South Wales (No 9) [2022] NSWSC 648 (the principal judgment)) and made orders as follows: "(1) Judgment for the defendant. (2) Subject to (3) below, order the plaintiff to pay the defendant's costs of the proceedings. (3) If either party wishes to apply for a different costs order, he or it (as the case may be) may do so, as long as a written application, together with any evidence and submissions in support of the application, is made to my Associate within seven days, whereupon further directions as to a response will be made, with a view to determining costs on the papers." 1. By application filed on 3 June 2022, the defendant applied for different costs orders, including that the costs be ordered in a gross sum, its costs be paid on an indemnity basis after certain dates and that Mr Tierney and Cush indemnify the defendant for all of the costs which the plaintiff is ordered to pay the defendant. I do not understand there to be any objection to the timing of the application as an earlier application was filed on 30 May 2022, which was within the time provided for by the directions. 2. On 30 June 2022, Mark Barrow of Cush filed a notice of ceasing to act as the plaintiff's legal representative. 3. I listed the matter before me for directions on 2 September 2022 to ascertain whether the defendant's application could be given a hearing date (submissions and evidence already having been exchanged between the parties, other than by the plaintiff). There was no appearance on behalf of the plaintiff. I was told that the plaintiff had been informed of the hearing. I infer that the plaintiff, who is apparently without means, does not wish to participate further in the first instance proceedings. I note the plaintiff has filed a notice of appeal on his own behalf. 4. At the directions hearing, I was informed by Mr Coffey, who appeared on behalf of the defendant that the defendant has served notices to produce on the plaintiff and Mr Tierney and Cush for documents relevant to its application. Client legal privilege has been claimed, on behalf of the plaintiff, by Cush and Mr Tierney over several documents. Mr Coffey raised the defendant's concern that, now that the plaintiff's interests differ from those of his former solicitors, it may be in the plaintiff's interest to waive privilege and, thereby, potentially enhance the defendant's prospects of obtaining the indemnity it seeks from Mr Tierney and Cush. However, the plaintiff may not appreciate that to be the case without legal advice. Whether the plaintiff ought be referred to the Pro Bono Panel 1. I raised with the parties the prospect of the Court referring the plaintiff to the Pro Bono Panel (the Panel) pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 7.36, which provides: "7.36 Referral to a barrister or solicitor (1) 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. (2) 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. (2A) 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 3 years unless the court is satisfied that there are special reasons that justify a further referral. (3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person. (4) 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. (4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant's referral, the registrar may make an order terminating the litigant's referral. (5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral." 1. I proposed that my Associate send an email to the plaintiff, inviting him to agree to be referred for such assistance. On 6 September 2022, my Associate received a response from the plaintiff by email to the effect that he agreed to be referred to the Panel. 2. I am satisfied that it is in the interests of justice to refer the plaintiff to the Panel. The plaintiff has, as I understand it, few means. Following the catastrophic fall which was the subject of the substantive proceedings, he became a client of the National Disability Insurance Scheme (NDIS), which has provided him with suitable, accessible accommodation and a few hours of care per day. I accepted, in my principal judgment, that he had lost his earning capacity. At the time of the hearing, I understood that he was receiving Government benefits and had no other source of income. I do not consider that the plaintiff would have other avenues available to him to obtain legal assistance. 3. The plaintiff's mental capacity, though not sufficiently compromised to warrant the appointment of a tutor, is such that it would be difficult for him to represent himself, or to appreciate the complexities of an argument about client legal privilege. Having observed him give evidence in the proceedings, I formed the impression that he has limited stamina and becomes fatigued if required to concentrate for extended periods. 4. I am not aware of the plaintiff having previously been referred to the Panel for assistance. Indeed, I consider it to be unlikely that he was, since Cush and Mr Tierney acted for him in the proceedings. 5. The principal purpose of the referral is to enable the plaintiff to obtain advice about whether it is in his interests to maintain a claim for privilege over the documents sought by the defendant or whether it would be preferable for him to waive privilege. A wider purpose is to enable the plaintiff to obtain advice about the defendant's application generally. I note that the plaintiff's interests would appear to align with those of Mr Tierney and Cush when it comes to quantum (namely, they all have an interest in the quantum being as low as possible). 6. I note that Mr Coffey and Ms Pauletto, who appeared for Mr Tierney and Cush, supported the referral of the plaintiff to the Panel. Orders 1. For the reasons given above, I make the following orders and directions: 1. Refer the plaintiff to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 7.36(1). 2. Direct that the following documents be provided to the Panel at the time of the referral: 1. A copy of these reasons; 2. My reasons in the principal judgment; 3. The defendant's application dated 3 June 2022; and 4. The submissions and affidavits filed by the parties on the defendant's application to date. 1. Stand the proceedings over for further mention at 9.15am on 23 September 2022. ********** 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: 06 September 2022