Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Maxwell-Smith v Hall & Anor [2012] NSWCA 205 Hearing dates: 25 June 2012 Decision date: 25 June 2012 Before: Campbell JA Decision: Notice of Motion dismissed. [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: PRACTICE AND PROCEDURE - application for pro bono assistance under UCPR 7.36 - where litigant had received assistance under a previous referral twice within preceding three years - determining whether interests of justice are in the applicant's favour requires assessment of whether the appeal has reasonable prospects of success - prospects of success found to be insufficient - application refused PRACTICE AND PROCEDURE - power to waive, postpone and remit fees under Civil Procedure Regulation 2005 reg 11 - power to be exercised by Registrar on separate application Legislation Cited: Civil Procedure Regulation 2005 Cases Cited: Kelly v Mosman Municipal Council (2010) NSWCA 370 Category: Interlocutory applications Parties: Inge Maxwell-Smith (First Applicant) Eugene Maxwell-Smith (Second Applicant) Steve Hall (First Respondent) S & E Hall Pty Ltd (Second Respondent) Hugo Patrick White (Third Respondent) Representation: Counsel: In person (First Applicant) J Riordan (First and Second Respondent) B Alder (Third Respondent) Solicitors: In person (First Applicant) Ellison Tillyard Callanan (First and Second Respondent) Middletons (Third Respondent) File Number(s): 2012/154529 Decision under appeal Date of Decision: 2012-04-20 00:00:00 Before: Colefax DCJ File Number(s): 2010/292575 Judgment 1CAMPBELL JA: This is a notice of motion brought by Mrs Maxwell-Smith in proceedings in which she seeks leave to appeal from a judgment that his Honour Judge Colefax SC gave on 20 April 2012. 2The application for leave to appeal also asserts that it is brought in the name of Mr Maxwell-Smith. It is not necessary for the purposes of this application to consider any further the position of Mr Maxwell-Smith, because Mrs Maxwell-Smith did not seek leave to appear on behalf of him, and today accepted that anything that she could have said on behalf of herself would also apply to her husband and that her husband would not have anything additional to say. Some directions have already been given today to seek to clarify the position that Mr Maxwell-Smith has as a named party in the litigation. 3The notice of motion seeks both pro bono assistance and waiver of fees. It is not appropriate for a judge in the first instance to make an order for waiver of fees, even if it were open to the judge to do it. It is usually the province of the Registrar to make a decision about waiver of fees in the first instance. There is scope for appellate procedures if Mrs Maxwell-Smith is dissatisfied with any decision that is made in the Registry in that respect. 4The case before the Court is an unfortunate one. In the 1990s Mr and Mrs Maxwell-Smith bought some land at Tura Beach. They entered into a contract with S and D Hall Pty Ltd, a company with which Mr Steve Hall was associated in some way, for the construction of a house on that land. 5Mr Hugo White is a solicitor with a law firm of Sautelle and White. He acted for the Maxwell-Smiths in some tasks connected with the purchase of the land and administration of the building contract. 6I should say that in reciting the facts I am not in any way making findings of fact but merely repeating contentions that are made so that the ambit of the dispute between the parties can be understood. 7A dispute arose between the Maxwell-Smiths and Mr Hall or his company concerning the final payment. That dispute resulted in litigation in the Building Disputes Tribunal and the Tribunal ordered Mr and Mrs Maxwell-Smith to pay some money to the Hall company. 8Mr White then began acting for the Hall company. He arranged for the issuing of a total of three bankruptcy notices against Mr and Mrs Maxwell-Smith in 2001, 2002 and 2006. They were based on a failure to pay a costs order of little over $11,000 apparently arising from the Building Disputes Tribunal proceedings. 9The first bankruptcy notice was withdrawn and the third bankruptcy notice was set aside. However, the second bankruptcy notice resulted in a sequestration order being made against Mr and Mrs Maxwell-Smith. That bankruptcy was annulled a little over nine months after the order was made but while it was in force the trustee incurred costs. In some fashion the Maxwell-Smiths have been ejected from their home at Tura Beach in the course of the trustee endeavouring to recover the costs that he claims. 10Proceedings in the name of Mr and Mrs Maxwell-Smith had been begun in the District Court against Mr Hall, the Hall company and Mr White. In broad terms the amended statement of claim contended that when Mr White acted for the Hall company he was in breach of ongoing contractual and fiduciary obligations owed to the Maxwell-Smiths. 11It also complains that at the time he was holding the certificate of title to the Tura Beach on behalf of the Maxwell-Smiths Mr White handed the certificate of title to the trustee without instructions from the Maxwell-Smiths to do so. It contends that in the circumstances in which the second and third bankruptcy notices were issued both of them were an abuse of process. Various consequential damages were claimed. 12In the judgment appealed against the primary judge struck out all the paragraphs of the statement of claim that made claims against Mr Hall and the Hall company leaving Mr White as the sole defendant. 13The summons seeking leave to appeal has, as I have mentioned, been filed in the name of Mr and Mrs Maxwell-Smith against the decision of 20 April. A draft notice of appeal contends that they suffered a denial of procedural fairness in the decision. The procedural unfairness is said to arise from the judge being, as he had once stated in open court, a personal friend of a Mr John Sautelle, who was at one time the partner of Mr White in the firm, Sautelle White. 14The power of the Court to make an order for pro bono assistance arises under UCPR 7.36. The power arises if the Court is satisfied it is in the interests of the administration of justice for the referral to be made. There is a restriction on the power under rule 7.36(2A), whereby the Court may not refer a litigant for assistance 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. 15It is common ground that there have been previous orders for referral made in favour of the Maxwell-Smiths. Indeed, as his Honour Judge Colefax recorded at p 12 of the transcript of 20 April 2012 there were two separate referrals, one of which was taken up by Mr Marshall of Senior Counsel, the other of which was taken up by Mr de Greenlaw and Mr Taylor of Senior Counsel. It may be that solicitors were also involved, but that does not clearly appear concerning both of the referrals. 16The parties named as respondents to the appeal neither consent nor oppose the orders, but have brought to my attention the provisions of r 7.36 subr 2A. 17The area of law that is involved here is one of some complexity, as to when conduct of a judge results in procedural unfairness. It appears uncontroversial that Mr and Mrs Maxwell-Smith could not afford representation on their own account, and indeed at present Mrs Maxwell-Smith is homeless. 18However, I am unable to find that it is in the interests of justice that there be a referral of the type that is suggested. It is apparent that on 6 May 2011, ie nearly a year before the decision appealed against, the judge disclosed that he was a friend of Mr Sautelle, and no objection was raised to his continuing to hear the case. 19The transcript on that occasion shows that the following exchange occurred: "COLEFAX J: ... whilst I was leaving the courtroom I noticed that the second defendant is Mr Hugo Patrick White, a partner of a firm called Sautelle White Lawyers. I don't know whether he is still a partner of the firm or not, but Mr John Sautelle is a personal friend of mine. I don't know if he is a partner. I have a feeling that he resigned from the partnership. Whether he still has some association by way of consultancy or whatnot I have absolutely no idea, but I thought I should reveal that immediately. I am not volunteering to disqualify myself because I don't know that this involves Mr Sautelle himself. Do you have any reaction to that, Mr Callanan? CALLANAN: I understand your Honour has taken an oath of office and I certainly don't take any point in that regard. HIS HONOUR: Mrs Maxwell-Smith, do you have a problem with me hearing the case if I am a friend of Mr Sautelle's? I MAXWELL-SMITH: No, your Honour, because Mr John Sautelle shortly retired after we were connected with solicitor who provide and we had only dealings with solicitor who provide. I think we met Mr John Sautelle very briefly when we decided to retire to Merimbula, and Mr Hugo White, he had a partnership with Andrew Rowan(?), association, and he specialising in litigation. And this is when I started litigating because when we were declared bankrupt for unjustifiable reason, they sued us for defamation during the lunchbreak in the District Court - in the Federal Court, but they were who initiated the bankruptcy proceedings, but Andrew Rowan was his partner at that particular time and he done all the litigation. HIS HONOUR: I don't know-- I MAXWELL-SMITH: But the partnership fell apart because-- HIS HONOUR: The short point, the limited point is I know Mr Sautelle. That's the only person-- I MAXWELL-SMITH: He's a very nice man, I've met him too. HIS HONOUR: I think so too. Do you have any objection to me hearing this case because I know Mr Sautelle? MAXWELL-SMITH: No, I don't think so-- HIS HONOUR: Very well. I MAXWELL-SMITH: --because Hugo White, he called - it used to be Sautelle White, slightly different, and like they have Sautelle and White, and there it's called Sautelle White Lawyers, ever since Mr John Sautelle retired. HIS HONOUR: All right. I think I've made the appropriate disclosures and no-one has made any application. I'll continue to hear the matter." 20No objection to the judge sitting was raised before the judge on the day of the decision that is appealed against, nor, so far as appears from the material now before me, on any other occasion. 21In deciding whether it is in the interests of justice to make a referral, one of the matters that it is appropriate for the Court to take into account is whether the appeal is one that has any reasonable prospects of success: Kelly v Mosman Municipal Council (2010) NSWCA 370. 22I cannot, on the material before me, see that the appeal has any reasonable prospect of success. The disclosure, and lack of objection, appears to create an insuperable obstacle. 23In those circumstances, the question of whether there are special reasons to justify a further referral does not arise. Concerning that, I would mention that the fact that there had been two referrals for the purpose of a trial would be relevant to whether there were special reasons for requesting pro bono assistance concerning an appeal, but the fact that the proceedings are appellate ones could sometimes be, or be part of, special reasons. 24As mentioned earlier, the notice of motion seeks an order that court fees be waived. In my view it is not appropriate for the Court to make this decision in the first instance, even assuming that it has jurisdiction to do so in light of the usual procedures concerning waiver of court fees that apply under the Civil Procedure Regulation 2005. Under cl 11 of that regulation is it for the Registrar, in the first instance, to make the decision about whether any fees should be waived, postponed or remitted. There is no reason to take the case out of that usual course in which such decisions are made. 25It is for that reason that I would dismiss the prayer in the notice of motion that seeks the waiving of fees. I stress that it is not in any way a decision that it is inappropriate for fees to be waived so far as Mr and Mrs Maxwell-Smith are concerned. 26For the reasons that I have given, I would not order that a pro bono counsel be appointed in the present proceedings. The notice of motion should therefore be dismissed. ********** 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: 04 July 2012