Aboriginal Housing Company Ltd v Kaye-Engel (No. 2) [2014] NSWSC 717

Supreme Court New South Wales

Medium Neutral Citation: Aboriginal Housing Company Ltd v Kaye-Engel (No. 2) [2014] NSWSC 717 Hearing dates: 30 May 2014 Decision date: 30 May 2014 Jurisdiction: Common Law Before: Davies J Decision: Defendant referred to the Registrar of the Court for referral to another barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to rule 7.36 UCPR. Catchwords: LEGAL AID - pro bono assistance - claim for termination of residential tenancy - cross-claim by tenant - pro bono assistance provided for advice and the drafting of pleadings - further referral for continuing assistance - special reasons demonstrated. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Jess v Scott (1986) 12 FCR 187 Serobian v Commonwealth Bank of Australia [2010] NSWSC 1165 Wily v Terra Cresta Business Solutions Pty Ltd (in liq) [2009] NSWSC 1324 Category: Interlocutory applications Parties: Aboriginal Housing Company Ltd (Plaintiff) Natalie Kaye-Engel (Defendant) Representation: Counsel: A Scotting & L Edwards (Plaintiff) P Lane (Defendant) (Direct access) Solicitors: Ashurst Australia (Plaintiff) No solicitor (Defendant) File Number(s): 2013/90824

Judgment 1On 13 December 2013 I made a recommendation for pro bono assistance for the Defendant. As a result of that recommendation Ms Patricia Lane of counsel undertook to advise the Defendant, to draft pleadings if appropriate and to appear to argue a Notice of Motion brought by the Plaintiff as well as to provide assistance on the matter of the jurisdiction of the Court to entertain the proceedings. 2On 16 May 2014 Ms Lane informed me at a directions hearing that she would not be able to continue to provide assistance in the matter beyond 30 May 2014 when the Motion and jurisdiction argument were heard. Ms Lane's assistance has been invaluable. She has drafted a defence and a cross-claim in the proceedings which clearly identifies the issues between the parties. It is apparent, however, that the Defendant is quite unable to continue to represent herself without legal assistance in the matter. 3In the course of hearing the Motion brought by the Plaintiff on 30 May 2014 Ms Lane read an affidavit of the Defendant sworn 28 May 2014 which provided details of the Defendant's present financial circumstances. This was in fact a more detailed account of her position than I had available to me when I recommended pro bono assistance on 13 December 2013. 4I am entirely satisfied that the Defendant's financial position and the complexity of the issues in the case require that she be further assisted if that is possible. My initial recommendation for pro bono assistance was limited to advice being provided about the Defendant's prospects of success in the matter and to draft pleadings. Ms Lane then kindly agreed to provide further the assistance on the hearings to which I have referred. 5I am satisfied that the Defendant has an arguable defence and an arguable claim found in the Cross-Claim. It is essential that she be able to present this defence and claim in Court. By reason of what Ms Lane has done, much of the hard work in the matter has been completed. 6I note the terms of rule 7.36(2A) UCPR. The subsection requires that special reasons justify a further referral. In Serobian v Commonwealth Bank of Australia [2010] NSWSC 1165 Hallen AsJ (as his Honour then was) considered what amount to special reasons for a subsequent referral. His Honour made reference to the decision of the Full Court of the Federal Court in Jess v Scott (1986) 12 FCR 187. That case concerned a provision which allowed a court "for special reasons" to permit an appeal out of time. 7The Full Court said (at p 195): [T]here [needs to] be shown a special reason why are the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify a departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this... "Special reasons" must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. 8At the time I recommended pro bono assistance on 13 December 2013 I noted that it was very difficult to understand from the documents filed by the Defendant what causes of action were pleaded. I considered it important for a lawyer to provide advice about the Defendant's prospect of success and, if appropriate, to draft appropriate pleadings. I expressly reserved to the Defendant the right to make a further application if it was approriate for her case to go forward. 9This was not a case where, at the time of referrral, it was easy to discern if the Defendant had any proper defence to the claim nor any proper claim herself in relation to the premises. All that could be said was that the rather incomprehensible documents filed by the Defendant suggested that there might be a good defence and/or claim. My intention in referring this matter for pro bono assistance on a limited basis was to ensure that time would not be wasted in the matter going forward if it was hopeless. 10I am entirely satisfied from the work Ms Lane has done that the Defence and Cross-Claim should go forward. I am also entirely satisfied from having dealt directly with the Defendant prior to Ms Lane's coming into the matter, that the Defendant is incapable of appearing for herself. This is manifest from the difficulties that she has had in focusing on the real issues in the case and on knowing how to conduct herself in the courtroom. 11In one sense, this is merely the second part of a referral under r 7.36. Ms Lane's withdrawal was not in breach of r 7.39 because she was engaged only for the purposes she fulfilled. In fact, she went beyond the call of duty, as I have said, to appear at the hearing of the Notice of Motion and the jurisdiction argument. It is not necessary, therefore, to consider her reasons for stepping aside: Wily v Terra Cresta Business Solutions Pty Ltd (in liq) [2009] NSWSC 1324. 12In my opinion, that matters referred to in [8] to [11] above amount to special reasons to justify a further referral. 13Accordingly, I again refer the Defendant to the Registrar of the Court for referral to another barrister or solicitor on the Pro Bono Panel for legal assistance to prepare affidavits and to appear at the hearing pursuant to rule 7.36 UCPR.