Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 Hearing dates: 6 August 2012 Decision date: 06 August 2012 Before: Basten JA Decision: (1) Dismiss the application for referral to the Pro Bono Panel. (2) No order as to the costs of the application [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: PROCEDURE - civil - parties - representation - application for referral to legal practitioner on Pro Bono Panel - public authority refused to issue certificate of roadworthiness - plaintiff alleges breach of duty of care - whether substantive matter has reasonable prospects of success - whether in the interests of justice to refer applicant to Pro Bono Panel - discussion of Nuha Ibrahim Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 - Uniform Civil Procedure Rules 2005 (NSW), r 7.36 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Uniform Civil Procedure Rules 2005 (NSW), r 7.36; Pt 7, Div 9 Cases Cited: Nuha Ibrahim Dafaalla v Concord Repatriation General Hospital [2007) NSWSC 602 Phu v New South Wales Department of Education and Training [2011] NSWCA 119 Category: Procedural and other rulings Parties: Ms P A Hetherington-Gregory (Applicant) All Vehicle Services (First Respondent) Roads and Maritime Services (Second Respondent) Motor Traders Association (Third Respondent) Representation: Counsel: Applicant in person Mr M Smith (First Respondent) Mr G J Sarginson (Second Respondent) Mr A P Lo Surdo SC (Third Respondent) Solicitors: Applicant self-represented Crown Solicitor's Office (Second Respondent) Consolidated Lawyers Pty Ltd (Third Respondent) File Number(s): CA 2012/222495 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-06-12 00:00:00 Before: Toner DCJ File Number(s): DC 2012/130012 Judgment 1BASTEN JA: This is an application for referral for pro bono assistance pursuant to Pt 7 Div 9 of the Uniform Civil Procedure Rules 2005 (NSW). The rules require that the Court be satisfied that it is in the interests of the administration of justice that the Court refer a litigant to the registrar for the purpose of obtaining assistance from the Pro Bono Panel, r 7.36(1). The rules also require that the Court take into account the means of the litigant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings, and any other matter the Court considers appropriate, r 7.36(2). 2In this matter I am satisfied, although there is no specific evidence before me in this regard, that the applicant is without the means to obtain private representation to pursue the proceedings in this Court. I have been told, and I accept, that she has applied for legal aid both through private firms and through solicitors employed by the Legal Aid Commission, without success. She has referred to the nature and complexity of the proceedings as warranting a grant of assistance, and no doubt if assistance can be obtained it would as usual be of assistance to the Court and in the interests of the administration of justice. 3There are other considerations which should be taken into account. In Nuha Ibrahim Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602, Brereton J made reference in an Equity Division case in which assistance was sought, to the following considerations. He stated at [9]: "The success of the scheme is dependent upon the support of the profession, and the obligations which are undertaken by a lawyer on the pro-bono panel import a concomitant obligation on the Court to exercise discretion in the grant of referral certificates." 4Referring to the rule then in force, he continued: "While ... a referral does not indicate that the Court has formed an opinion on the merits of a litigant's case, the Court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit. That is not to say that a referral should never be made in a case apparently lacking merit: for example, it may well be appropriate to grant a certificate, for the limited purpose of obtaining advice, in a case without legal merit, where there is some prospect that the advice will assist the litigant to understand the defects in the case, so that unnecessary litigation may be avoided." 5Those views were followed by Young JA in Phu v New South Wales Department of Education and Training [2011] NSWCA 119. In my view, those views are relevant in the present case. 6The Court must accept that there will be cases with respect to which an unrepresented litigant, unable to afford private representation but for whom legal aid is unavailable, will benefit from referral to the Panel. The interests of justice in such a case include not only the interests of the applicant herself but also the interests of the other parties and the Court. 7In accordance with the requirements in respect of the overriding purpose of the Civil Procedure Act 2005 (NSW) set out in ss 56-58, the Court is required to take steps to facilitate the just, quick and cheap resolution of the real issues in a dispute. In applying that purpose it is required to follow the dictates of justice which are identified in part in s 58 of the Act. While on the one hand the Court must accept and recognise that there are limitations on the availability of legal aid in this State which mean that some litigants with meritorious cases will go without legal aid assistance, it must also recognise that there are cases in which legal aid is refused on the merits. In such cases it is not the primary purpose of the pro bono referral scheme to allow litigants to obtain a second or third opinion as to the merits of their case when they have been rejected on that basis. 8The applicant suggested in the course of her submissions this morning that there were other reasons, including the inadequacy of the payments available under the scheme, why aid might be rejected. That is, some private practitioners may not be willing to pursue a claim in respect of proceedings which do not appear to be remunerative at legal aid rates. On the other hand, it must be also accepted that there will be many private practitioners who are willing to undertake work which is seen to have reasonable prospects of success on a contingent basis, accepting that they will only receive payment if their client is successful and an order for costs is made against a party with funds. In the present case there is no suggestion that the respondents would not be able to meet a judgment for costs, if awarded. Accordingly, I do not consider that it is likely that legal assistance would have been refused by private practitioners on that basis. 9In the circumstances of this case, being matters which I have indicated the nature of in the judgment delivered on 23 July, I am not persuaded that it is in the interests of justice to refer the applicant to the Pro Bono Panel. That is because it does not appear to me that there are reasonable prospects of success in these proceedings. That is not to say that they are unarguable, but a judgment has to be made as to the extent to which the Court seeks to impose an obligation on members of the legal profession to assist in circumstances where there are not reasonable prospects of success. In my view this is not an appropriate case in which to impose such an obligation and accordingly I dismiss the application. 10I make the following orders: (1) The application for referral to the Pro Bono Panel is dismissed. (2) There is no order as to the costs of the hearing today. ********** 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: 27 August 2012