Supreme Court New South Wales Medium Neutral Citation: Rebecca Helen Foster v Commonwealth Bank of Australia [2013] NSWSC 598 Hearing dates: 23 April 2013 Decision date: 23 April 2013 Jurisdiction: Equity Division - Duty List Before: Rein J Decision: Notice of motion dismissed and the plaintiff to pay the defendant's costs. Catchwords: PRACTICE AND PROCEDURE - plaintiff sought the proceedings to be reinstated on the basis the plaintiff has been denied natural justice - plaintiff sought an order for pro bono assistance under the Uniform Civil Procedure Rules but the proceedings, on her own application, had been previously dismissed on the plaintiff's motion to reinstate the proceedings - observations on inappropriateness of granting pro bono assistance a second time. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 Category: Principal judgment Parties: Rebecca Helen Foster (plaintiff) Commonwealth Bank of Australia (first defendant) National Australia Bank (second defendant) Australia and New Zealand Banking Corporation Limited (third defendant) Westpac Banking Corporation (fourth defendant) Representation: Counsel: Plaintiff in person Ms A. Vetrova (first defendant) Ms V. Bridgen (second defendant) Mr A. Combe (third defendant) Ms S. Bargon (fourth defendant) Solicitors: Gadens Lawyers (first defendant) Legal Australia (second defendant) Kemp Strang (third defendant) Gilbert + Tobin (fourth defendant) File Number(s): 2011/272560 EX TEMPORE Judgment 1REIN J: This matter has been listed before me today in the Duty Judge list in connection with the plaintiff's notice of motion filed on 25 March 2013. The motion is supported by an affidavit of the plaintiff, Ms Foster, of 25 March 2013. Ms Foster appears for herself today. The respondents to the motion are four banks, the Commonwealth Bank of Australia, National Australia Bank, Australia and New Zealand Banking Corporation Limited and Westpac Banking Corporation, which are all legally represented and which banks were all defendants in the proceedings originally brought by Ms Foster. 2The notice of motion seeks a referral for legal assistance under Div 9 Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW). I will not set out all of the referral provisions but a key provision, rule 7.36(1) is as follows: (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. 3In the notice motion, there is a statement that the plaintiff has been denied natural justice or procedural fairness and must be given an adequate opportunity "to present her case" and the motion seeks an order that the proceedings be reinstated to the Registrar's list. 4Proceedings were first commenced in August 2011 against the four banks and they relate to the alleged role that the banks had in the fraud that the plaintiff's son, whom I shall refer to as "J", was said to have committed while he was a minor. He apparently had a bank account with each bank and used those accounts, it is said by his mother, in undertaking fraudulent activities. 5On 15 December 2011 Nicholas J heard a motion by the bank for the proceedings brought by Ms Foster to be dismissed. First, however, his Honour had to deal with the fact that the plaintiff had not appeared on that occasion, although she had retained directly Senior Counsel to act for her in the proceedings at that time. His Honour gave a judgment on 15 December in which he set out the history of the matter and came to the view that neither the plaintiff nor her counsel had discharged the statutory obligation imposed by s 56 of the Civil Procedure Act 2005 (NSW) and was of the view that, in the interests of justice, the notice of motion should be heard although in the absence of the plaintiff or her representative. 6His Honour then, in a separate judgment dealing with the bank's application for summary dismissal, came to the conclusion (and his reasons for judgment were given ex tempore but are contained on the file in a published version) as to why, in his view, the statement of claim did not disclose a cause of action against the various defendants, and that the proceedings should be dismissed. 7Following that judgment the plaintiff put on a notice of motion which was filed and made returnable for 16 January 2012. That motion was supported by an affidavit of Ms Foster of 16 January 2012 and sought an order reinstating the proceedings to the Registrar's list and sought leave for the plaintiff to file and serve an amended statement of claim within seven days. 8That matter came on for hearing before Nicholas J but in the course of the hearing the plaintiff indicated, through counsel, that she no longer proposed to proceed with her notice of motion of 16 January 2012 and she sought an order that the notice of motion be dismissed. 9His Honour's judgment (also again given ex tempore but subsequently published) basically dealt with the application for costs but I do wish to set out [3] of his judgment which is in the following terms: I do not propose to recite the details of the submissions in support of the application for indemnity costs, suffice it to note that it was essentially on the basis that by 27 April 2012 the defendants' affidavit evidence had been filed and served, which included material which, on the defendants' case, demonstrated facts relevant to each of the defendants which would have indicated that the plaintiff's case was hopeless had the information been responsibly evaluated by her and those advising her. 10At [6] his Honour said this: After a short adjournment counsel for the plaintiff quite properly indicated to the court that the submissions as to the insufficiency of the proposed amended statement of claim was accepted and, accordingly, the second limb of the claim for relief in the notice of motion, namely, that leave be granted to the plaintiff to file an amended statement of claim within seven days, was not to be pressed. 11His Honour then went on to deal with the issue of indemnity costs and ordered the plaintiff to pay the costs of the defendants on the ordinary basis up to 13 May 2012 and on an indemnity basis on and from 14 May 2012. In accordance with what his Honour had ordered the notice of motion be dismissed in [3] and [6] of his judgment. 12That is where the matter has stood until recent developments. No appeal was lodged or could have been lodged from the orders made by his Honour and no application has ever been made to set aside his Honour's judgment, which is a very difficult task given the fact that the proceedings were dismissed by consent at a time when the plaintiff was legally represented by both counsel and solicitors. 13As Ms Brigden, who appears for the second defendant, has pointed out there are a number of problems with the notice of motion. The notice of motion appears to proceed on the basis that there are proceedings on foot for which the plaintiff could obtain pro bono assistance whereas, in fact, the proceedings have come to an end. They have been dismissed, as I said, on the application of the plaintiff. There is no scope, it was submitted by Ms Brigden and Mr Combe, who appears for the third defendant) and this was supported by the other defendants' representatives, for any referral in circumstances where there are no proceedings on foot. 14The notice of motion, although inadequately framed, does seem to posit or assert that there is scope for the proceedings to be reinstated but on what basis is entirely unclear. The affidavit, which Ms Foster has filed in support of her notice of motion, does assert that she has not had an adequate opportunity to present her case because of the passing away of her mother in May 2012 and the fact that she is the primary full time carer of her disabled brother. She speaks in her affidavit of a number of circumstances which have not permitted her to pursue her case further and she sets those out. The affidavit also seeks to present evidence presumably in support of the claims that the plaintiff wishes to make against the defendants in the proceedings if they were to be reinstated. 15I agree with the submissions on behalf of the defendants that the proceedings are at an end and that there is no basis for reinstating the proceedings given the history to which I have referred. Equally important for the purposes of this application, which includes a request for legal assistance, is the fact that the plaintiff has had pro bono legal assistance in the past and those lawyers representing her have advised the court of her position when appearing before Nicholas J in May last year. The inference that can be drawn, from what they said to the Court, is that those advisers gave her advice to the effect that she did not have a viable case against the banks. 16I think it is clear from what Ms Foster has said today that she does not agree with any such advice if it was given. She believes that she has a case based on the facts which were advanced to support the original proceedings that she brought in this court. She is entitled to hold whatever views she wishes about the case but the reality is that there is no reason why, in the interests of justice, she should now be referred again to counsel under the purposes of the scheme. 17My attention was drawn to a judgment of Basten JA in the Court of Appeal, Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 in which his Honour refused an application for referral on the basis that in effect the plaintiff who was seeking assistance there had already had the benefit of legal assistance and his Honour made the point that the scheme does not exist to effectively provide a second opinion where the party receiving the advice is not happy with the advice which they have been given. 18The pro bono scheme is a very limited scheme which relies on considerable goodwill and sacrifice on the part of barristers and solicitors who give their time for no payment to assist parties and the court has to be mindful in general terms of the need for this limited resources to be used fairly. 19I have referred to the point made by Ms Brigden, which is to the effect that there is no point to any assistance because the proceedings are at an end. Mr Combe added a further point which is to the effect that, since the proceedings are at an end, Ms Foster does not fall within the definition of "litigant" for the purposes of Div 9 Pt 7. This may be another way to look at the matter but I prefer Ms Brigden's formulation. 20The point was also made by the defendants that there is no evidence that the plaintiff has exhausted all means of obtaining legal advice, nor has she provided details of her own capacity to obtain legal assistance outside the scheme. 21The factual matters do not really need to be addressed in the circumstances, although it does appear that insufficient evidence has been provided. 22I am not satisfied, to use the terminology of the provision 7.36(1), that it is in the interests of the administration of justice that there be any order for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. 23In the circumstances the notice of motion should be dismissed and I order the plaintiff to pay the defendants' costs. ********** 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: 21 May 2013