Allchin v Hunter Water Corporation [2024] NSWCA 290

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Allchin v Hunter Water Corporation [2024] NSWCA 290 Hearing dates: 25 November 2024 Date of orders: 25 November 2024 Decision date: 25 November 2024 Before: Griffiths AJA Decision: 1. Stand over the notice of motion filed on 1 November 2024 by the respondent in the appeal for hearing by the referrals Judge on 16 December 2024. Catchwords: CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — where no appearance by applicant Legislation Cited: Supreme Court Act 1970 (NSW), s 101(2)(r) Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 12.7, 29.7(4), 51.22 Category: Procedural rulings Parties: Craig Allchin (Appellant) Hunter Water Corporation (Respondent) Representation: Counsel: Appellant (Unrepresented) I Griscti (Respondent)

Solicitors: Moray & Agnew (Respondent) File Number(s): 2024/00222409 Publication restriction: Nil

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Ex tempore JUDGMENT (Revised) 1. This matter came before me as referral judge this morning. By way of background, and in brief, the appellant has appealed from a judgment dated 30 April 2024 by Weber SC DCJ. The primary judge dismissed the appellant's claim for damages for personal injuries in circumstances where, during the course of the first day of the hearing, I understand that the appellant terminated the instructions of his Legal Aid solicitor and barrister, and then he, himself, left the courtroom. 2. The primary judge granted the respondent's application for the proceedings to be dismissed under r 29.7(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). 3. These orders were appealed by the appellant by way of a notice of appeal dated 20 May 2024. 4. The Registrar informed the appellant that he required leave to appeal under s 101(2)(r) of the Supreme Court Act 1970 (NSW) and r 51.22 of the UCPR. 5. By orders dated 10 July 2024, the Court ordered the appellant to file and serve a summons seeking leave to appeal, along with a white folder, by 11 September 2024. This did not occur. The matter was stood over for a second directions hearing on 21 October 2024. 6. The appellant appeared then by way of audio visual link. According to an affidavit dated 1 November 2024, which has been filed by the respondent, no explanation was provided to the Court for the appellant's failure to file and serve a summons seeking leave to appeal, together with a white book. 7. By notice of motion filed 1 November 2024, supported by the affidavit I have just referred to, the respondent seeks to have the proceedings dismissed, pursuant to r 12.7 of the UCPR, or alternatively r 51.41 of the UCPR. 8. At the directions hearing on 21 October 2024, the appellant indicated that he might seek an order under r 7.36 of the UCPR so as to obtain pro bono assistance to enable him to respond to the respondent's motion. On that day, the Registrar also made directions as follows: 1. The respondent is to file and serve any notice of motion seeking dismissal of the appeal, together with any supporting affidavit and written submissions, by 4 November 2024. 2. The appellant is to file and serve any material upon which he seeks to rely, together with written submissions in reply by 15 November 2024. 3. List the notice of motion for return on 18 November 2024 to be referred to a Judge for hearing. 4. A copy of these orders are to be sent to each party [including to the appellant's email address]. 1. By email dated 18 November 2024, the appellant asked that his application to obtain pro bono legal assistance be dealt with in Chambers. The Registrar informed the appellant at a third directions hearing held that day that he would need to serve a motion and supporting affidavit addressing the requirements in r 7.36(3) of the UCPR. By return email, the appellant said he would make an application and give evidence orally, "that his capacity and mental health is restrictive", and that he was unable to file a motion or provide an affidavit. 2. By email dated 22 November 2024, the Registrar advised the appellant that the respondent's motion was listed before me at 11.30am today. He was told that the Court would entertain his oral application for pro bono legal assistance, but that he needed to file and serve a supporting affidavit by 10am today. 3. The appellant responded by an email dated 24 November 2024 in which he asked for an AVL link for the purposes of today's directions hearing and reiterated that he would be giving oral evidence in support of his application. 4. When the matter was called this morning at 11.35am, there was no appearance by the appellant. Mr Griscti appeared for the respondent. 5. Having not received any oral application or been provided with any oral evidence by the appellant, I am not in a position to make any referral for pro bono assistance. Instead, I will list the respondent's motion filed 1 November 2024 for hearing by the referrals judge on Monday 16 December 2024. 6. Mr Griscti, who appeared for the respondent today, indicated that his client was content to proceed on the basis of the material it had provided in response to the orders that were made on 21 October 2024. He pointed out that the appellant was yet to file and serve any material upon which he intends to rely, in particular, an outline of written submissions. 7. It will be a matter for the appellant to attend promptly to those matters. If he wishes to provide written submissions or any evidence in respect of the respondent's motion, that should be done comfortably before 16 December 2024 and will require him to both file and serve any such material. 8. The Court makes the following orders: 1. Stand over the notice of motion filed on 1 November 2024 by the respondent in the appeal for hearing by the referrals Judge on 16 December 2024.