Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bobolas v Waverley Council [2011] NSWCA 242 Hearing dates: 8 August 2011 Decision date: 08 August 2011 Before: Basten JA at 1 Decision: (1) Refer the applicants to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance in the hearing of the appeal on 7 October 2011 and any steps to be taken in preparation for that hearing. (2) The costs of today are to be costs in the appeal. [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.] Catchwords: EVIDENCE -privilege - client legal privilege - not all communications between a client and Legal Aid Commission privileged PROCEDURE - civil - parties - legal incapacity of one named applicant -no involvement of manager under NSW Trustee and Guardian Act 2009 (NSW) - whether party to the proceedings - application by occupiers of the premises PROCEDURE - civil - parties - request for pro-bono representation- not likely to obtain legal assistance outside the scheme - delay on part of Legal Aid Review Committee - Uniform Civil Procedure Rules 2005(NSW) Rule 7.36 Legislation Cited: Legal Aid Commission Act 1979 (NSW), ss 25, 57 Local Government Act 1993 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 7.36; P 7, Div 9 Category: Procedural and other rulings Parties: Elena Bobolas - First Applicant Liana Bobolas - Second Applicant Mary Bobolas - Third Applicant Waverley Council - Respondent Representation: Counsel: Elena Bobolas and Liana Bobolas in person Mr K Webber - Respondent Solicitors: Applicants self-represented Wilshire Webb Staunton Beattie Lawyers - Respondent File Number(s): CA 2010/9962 Decision under appeal Citation: Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 Date of Decision: 2009-12-10 00:00:00 Before: Pain J File Number(s): LEC 2009/40278 JUDGMENT 1BASTEN JA : This matter involves an appeal from the Land and Environment Court which commenced in January 2010. A hearing date was fixed on at least one previous occasion which was vacated. There is presently a hearing date fixed for 7 October 2011. So far only draft written submissions have been filed by the appellants. The appellants say that their difficulty is that they are without funds and have not been able to obtain legal assistance for the preparation and presentation of their case. For that purpose they make an application for a court appointed referral for legal assistance pursuant to Pt 7, Div 9 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). 2The application comes on this morning in circumstances where there has been a long outstanding issue as to whether or not legal aid will be available to the appellants. They first sought assistance from the Legal Aid Commission, I am informed, in a timely manner in February 2010 to assist with the appeal. Legal aid was refused in 2010 and a document, a copy of which is on the Court file with a Legal Aid Commission stamp dated 30 August 2010, indicates that an application to review the initial decision of the Legal Aid Commission was lodged on that date. 3There appears to have been considerable doubt as to whether or not the review application had been received by the Legal Aid Commission, despite the appearance of receipt resulting from the date stamp. There have been inquiries made by the parties and by this Court of the Legal Aid Commission as to the fate of that appeal. It appears that the Legal Aid Commission, although it wrote to the Court in May of this year indicating that there was no record of an application to review the initial decision, now accepts that it has an application to review which has been referred to a Legal Aid Review Committee. 4The appellants say that they had received an indication on 26 May 2011 of that fact and had received the same letter a second time in an envelope date marked 20 June 2011. So far they have not received a response as to the outcome of their application for review. According to the form on which an application for review is to be made, reviews are expected to be completed within four to six weeks of being lodged. The importance of that timeframe is that the Court is not able to proceed with a hearing of the matter whilst an appeal is pending: s 57. Why the appeal has not yet been determined is unclear, if that is the case. I would add that the Registrar wrote to the Director of the Legal Aid Commission on 1 August of this year inquiring as to the status of the appeal. So far as I am aware no response has been received to that communication. 5I propose to make the order in favour of a court-appointed referral for legal assistance on the basis that if legal aid is forthcoming the appellants will immediately determine whether to proceed with any barrister who may accept a referral under this scheme or practitioner who may be available to them pursuant to a grant of legal aid, if not the same person. In other words there will be no further delay resulting from either refusal or acceptance of assistance, if such is forthcoming. 6For the purposes of r 7.36 I am satisfied that the means of the litigants requires that aid be provided on a pro bono basis. I am also satisfied on a contingent basis that the appellants do not appear likely to obtain legal assistance outside the scheme. I say that on the basis of what appears from the material before me to be an exorbitant delay on the part of the Legal Aid Review Committee in determining the matter. It is a matter of great concern to the Court, not only that there has been that delay but that the Court Registrar has not had the courtesy of a timely response from the Director, either explaining or revealing the true circumstances of the delay. 7I am also satisfied that there is an issue as to the interrelationship of two provisions of the Local Government Act 1993 (NSW), being a matter which of its nature is not readily able to be determined by a lay party in a manner which would provide the valuable assistance to this Court which might be obtained from counsel. In the circumstances, it appears to me that the interests of the administration of justice do warrant a referral under the UCPR for this purpose. Accordingly I direct that a referral be made. 8I also note that I was told in the course of proceedings that the affidavit of one appellant of 8 August 2011 was privileged and had not been disclosed to the respondent to the appeal. The same comment was made in relation to a letter dated 26 May 2011 to which I have already referred. I have had regard to s 25 of the Legal Aid Commission Act . I have also been told that there is authority for the proposition that all such communications are privileged. In my view they are not. 9In the circumstances of the case I returned the affidavit and letter and said I would not rely upon them. Their contents have, however, been read out or summarised from the bar table by the appellants. In my view it is fallacious to suggest that all communications between an applicant for legal aid and the Legal Aid Commission are, as such, the subject of client legal privilege. Wherever those communications are of assistance to the Court and are sought to be relied upon by a legally aided party or a party seeking assistance from the Legal Aid Commission, they should not assume that they can simply present material to the Court without making it available to the other party. 10There is a further question as to the costs of today's proceeding. The costs were incurred, the appellants say, because the matter could have been dealt with in the absence of the public and without the attendance of any person pursuant to r 7.36(3). That is so. This was not however an appropriate case for that to happen. First, it was not an appropriate case because material was sought to be put before the Court but which had not been provided to the respondent. In those circumstances any consent that the respondent gave would have been of little value to the Court which had to make its own mind up as to whether it was satisfied of the test in r 7.36. 11Secondly, it is by no means clear and was by no means clear at the outset of the proceedings that the appellant satisfied the rule requiring that the capacity to obtain legal assistance outside the scheme had been met. For reasons I have already given it remains unclear that they have satisfied that requirement. The order has been made because of the dilatoriness of the Legal Aid Commission in making determinations in respect of legal aid. It was a matter which needed to be agitated and it therefore was appropriate that the matter be heard in public and the Court has been assisted by the attendance of both parties. 12I therefore make the following orders: (1) Refer the applicants to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance in the hearing of the appeal on 7 October 2011 and any steps to be taken in preparation for that hearing. (2) The costs of today are to be costs in the appeal. 13The foregoing reasons were delivered ex tempore on 8 August 2011. Since that time it has come to my attention that the two persons before the Court, Elena Bobolas and Liana Bobolas were the occupants of the premises and not the owners. The owner, Mary Bobolas is, and has at all relevant times, apparently been subject to the control of a manager appointed under the NSW Trustee and Guardian Act 2009 (NSW) and therefore suffers a legal incapacity precluding her from commencing proceedings in her own name: see Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 (Pain J) at [4]. On the material before this Court, it is not clear that Mrs Mary Bobolas is a party to the proceedings. According to Pain J, the manager of her estate agreed to abide by orders made in the Land and Environment Court, as to which he or she took no position. Accordingly, the orders set out above, having been made on 8 August 2011, should be understood to apply to Elena Bobolas and Liana Bobolas in their capacity as occupiers of the premises. ********** 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: 22 August 2011