Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Maxwell-Smith v S & E Hall Pty Ltd [2013] NSWCA 397 Hearing dates: 25 November 2013 Decision date: 28 November 2013 Before: Sackville AJA Decision: 1. The applicants' notice of motion is dismissed. 2. No order as to costs. [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 - application for referral to legal practitioner on Pro Bono Panel - assistance provided pursuant to previous referral - whether special reasons demonstrated pursuant to UCPR, r 7.36(2A) - application refused Legislation Cited: Uniform Civil Procedure Rules 2005, r 7.36 Cases Cited: Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 Maxwell-Smith v Hall [2012] NSWCA 205 Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825; 233 ALR 81 Category: Interlocutory applications Parties: Inge Maxwell-Smith (First Applicant) Eugene Maxwell-Smith (Second Applicant) S & E Hall Pty Ltd (First Respondent) Hugo Patrick White (Second Respondent) Representation: Solicitors: First Applicant in person (Applicants) D Shankar (Rankin Ellison Lawyers) (First Respondent) TC Blyth (K & L Gates) (Second Respondent) File Number(s): 2013/155581 Decision under appeal Jurisdiction: 9101 Citation: Maxwell-Smith v S & E Hall Pty Ltd (District Court of New South Wales, 9 May 2013, unreported) Date of Decision: 2013-05-09 00:00:00 Before: Kearns DCJ File Number(s): 2010/292575 Judgment 1HIS HONOUR: By a Notice of Motion filed on 4 November 2013, the applicants, Inge Maxwell-Smith and Eugene Maxwell-Smith, seek referral for pro bono assistance pursuant to the Uniform Civil Procedure Rules 2005 ("UCPR"), r 7.36, in connection with their appeal against a decision of Kearns DCJ of 9 May 2013. The applicants also seek directions that they be assisted by the Court in preparing the Appeal Books and that Court fees be postponed or waived in respect of that appeal. The respondents do not oppose the application. Background 2The proceedings arise out a contract for the building of a house on the applicants' land at Tura Beach. The first respondent, S & E Hall Pty Ltd ("Hall"), was the building contractor. The second respondent, Hugh White ("Mr White"), was the solicitor retained by Mr and Mrs Maxwell-Smith on their purchase of the Tura Beach property. Hall's alleged breaches of the building contract, and Mr White's alleged breach of his retainer and his fiduciary duties, have been the subject of protracted litigation, involving a multiplicity of applications to this Court, the Consumer Claims Tribunal, the District Court, the Federal Court, the Supreme Court and the High Court. 3The background and part of the procedural history of the case is summarised in the judgment of Jacobson J in Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825; 233 ALR 81, as follows: [13] By an agreement dated 3 August 1995, S & E Hall agreed with Mr and Mrs Maxwell-Smith to construct a residential home for them on their land at Surf Circle, Tura Beach. The agreement was not signed by Mrs Maxwell-Smith, but only by Mr Maxwell-Smith, who appears to have signed on behalf of himself and his wife as the owners of the land on which the house was to be built. [14] The building work appears to have been completed in 1996, although Mrs Maxwell-Smith contends that it was not carried out in a proper and workmanlike manner. As a result, Mr and Mrs Maxwell-Smith brought proceedings against S & E Hall in 1996 and 1997 in the Consumer Claims Tribunal concerning the construction of the house. [15] On 25 February 1998, the Consumer Claims Tribunal handed down its decision and ordered that Mr and Mrs Maxwell-Smith pay to S & E Hall the sum of $6745.55 by 1 April 1998. In its reasons for decision, the Consumer Claims Tribunal found that, subject to a number of minor exceptions, the building work had been completed in a workmanlike fashion and that all the work was properly accounted for. The Consumer Claims Tribunal made allowances against the amount claimed to cover the items of poor workmanship or incorrect accounting. [16] In 1998 Mr and Mrs Maxwell-Smith made an application for judicial review of the decision of the Consumer Claims Tribunal in the Administrative Law Division of the Supreme Court of New South Wales. The application was heard by Greg James J. On 8 December 1998, his Honour ordered that the summons be dismissed. He ordered Mr and Mrs Maxwell-Smith to pay S & E Hall's costs on an indemnity basis. [17] On 7 April 1999, the New South Wales Court of Appeal refused leave to appeal from the judgment of Greg James J. The reason why leave was refused was that Powell and Giles JJA were satisfied that there was no jurisdictional error in the decision of the Consumer Claims Tribunal. [18] Special leave to appeal to the High Court was refused by McHugh and Kirby JJ on 30 November 1999. Mr and Mrs Maxwell-Smith appeared in person on the special leave application. [19] On 15 September 2003, a registrar of the Federal Court made sequestration orders against Mr and Mrs Maxwell-Smith. The debt which gave rise to the orders was the certificate of assessment of the costs order made by the Supreme Court of New South Wales on 8 December 1999. However, on 2 July 2004 Moore J annulled the bankruptcies of Mr and Mrs Maxwell-Smith under s 153B of the Act: see Maxwell-Smith v S & E Hall; Re Maxwell-Smith [2004] FCA 840. His Honour was satisfied that the sequestration orders ought not to have been made, on the basis of an "unwitting" denial of procedural fairness before the registrar: see [20]. [20] Moore J observed (at [24]) that the annulment application was not made upon the basis that Mr and Mrs Maxwell-Smith were solvent when the orders were made. Nevertheless, his Honour recorded an acknowledgment of counsel for the trustee that "probably" Mr and Mrs Maxwell-Smith were solvent when the sequestration orders were made. His Honour also noted that counsel for S & E Hall did not dispute this proposition. [21] Moore J went on to say that there was insufficient evidence before him to make a positive finding that Mr and Mrs Maxwell-Smith were solvent. But he said that they may well be solvent, and may well have been when the sequestration orders were made: at [24]. He took this into account in the exercise of his discretion to make the annulment order. .... [25] In or about October 2004, S & E Hall garnisheed Mr and Mrs Maxwell-Smith's bank to recover an amount of $9700 which satisfied, in part, Mr and Mrs Maxwell-Smith's liability for costs in the Supreme Court proceedings. 4The appeal in respect of which the applicants seek pro bono assistance arises out of proceedings in which they sought damages from Hall and Mr White. The applicants alleged that Hall committed the tort of abuse of process by issuing bankruptcy notices against them in 2002 and 2006, for improper reasons. They alleged that Mr White breached duties he owed to them as their solicitor. The primary Judge, Kearns DCJ, found that both of the bankruptcy notices were issued for a proper purpose, and that there was no abuse of process by Hall or Mr White: Maxwell-Smith v S & E Hall Pty Ltd (District Court of New South Wales, 9 May 2013, unreported). His Honour also found that Mr White's retainer did not extend to advising on a contract with Hall. Thus the claim against him for breach of his contractual and fiduciary obligations failed. The Notice of Motion 5The power to refer a litigant for pro bono assistance is contained in Pt 7, Div 9 of the UCPR. UCPR, r 7.36 relevantly provides: (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. (2) For the purposes of subrule (1), the court may take into account: (a) the means of the litigant, and (b) the capacity of the litigant to obtain legal assistance outside the scheme, and (c) the nature and complexity of the proceedings, and (d) any other matter that the court considers appropriate. (2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral. 6On the motion, the applicants rely on an affidavit of Mrs Maxwell-Smith, sworn 4 November 2013, in which she deposes that they are impecunious. The applicants also rely on a letter from a general practitioner, dated 19 November 2013, which indicates that Mrs Maxwell-Smith has ongoing health problems. In her oral submissions, Mrs Maxwell-Smith did not advance any other reasons why an order for pro bono assistance should be made. 7The applicants have received pro bono assistance under a referral within the past three years. Pursuant to that referral, which was made by the District Court, they received assistance from senior and junior counsel to replead their claim in the District Court. They are therefore ineligible for a further referral unless they show special reasons. 8The applicants have had the benefit of one other referral, which resulted in them receiving assistance from senior counsel. They have also previously applied unsuccessfully for further pro bono assistance: Maxwell-Smith v Hall [2012] NSWCA 205. 9I accept that Mr and Mrs Maxwell-Smith do not have the means to obtain legal representation (r 7.36(2)(a)). There is also evidence before the Court which indicates that Mr and Mrs Maxwell-Smith have been refused assistance by the New South Wales Bar Association Legal Assistance Referral Scheme, as they fall outside the guidelines of the Scheme, having previously been assisted in 2005 and 2007 (r 7.36(2)(b)). 10However, I am firmly of the view that the applicants have not demonstrated special reasons that justify a further referral. They have had the benefit of assistance under various referral schemes on a number of occasions. The extensive litigation in which they have been involved arose, sadly enough, out of a dispute involving a small amount of money. In the latest manifestation of the litigation, they have had an opportunity, with legal assistance (although not at the hearing) to put their case. There is nothing to indicate that, even if they receive assistance, this appeal will be the last of the litigation. 11In Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602, Brereton J observed (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. That observation is particularly pertinent to the present case where the applicants have already received substantial pro bono assistance and have had their day in court. 12I am not satisfied that the applicants have demonstrated that there are special reasons why the Court should refer them for pro bono assistance. Indeed I am not satisfied that it is in the interests of the administration of justice that such an order should be made. Nor do I think that the other orders sought by them should be made by this Court. There are established procedures concerning such matters as waivers of fees and they should be followed. 13The applicants' notice of motion is dismissed. There should be no order as to 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: 29 November 2013