Scott-Irving v State of New South Wales [2014] NSWSC 1006

Supreme Court New South Wales

Medium Neutral Citation: Scott-Irving v State of New South Wales [2014] NSWSC 1006 Hearing dates: 23 July 2014 Decision date: 23 July 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) Decline the plaintiff's application for an adjournment. (2) Confirm the hearing date of 28 July 2014 for 10 days. Catchwords: PROCEDURE - application for adjournment sought pending appeal against refusal of legal aid - matter set down for ten days - applicant had represented to the court that he was ready for hearing - special circumstances - does not appear that the appeal is bona fide Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Aid Commission Act 1979 (NSW), ss 31, 33, 34, 56, 57 Cases Cited: Commonwealth Bank of Australia v Clapham [2012] NSWSC 41 Tahana v Secure Funding Pty Ltd [2013] NSWCA 19 Category: Procedural and other rulings Parties: Stewart Scott-Irving (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: A Bonnor (Plaintiff) M Hutchings (Defendant) Solicitors: Randall Legal (Plaintiff, but not on record) Henry Davis York (Defendant) File Number(s): 2012/19001 Publication restriction: Nil

Judgment

Introduction 1By letter sent by facsimile from Randall Legal to the Registrar of the Common Law Division, Ms Randall, principal wrote in the following terms: "Mr Scott-Irving has made an application to Legal Aid NSW for a grant of aid in relation to the above matter. Mr Scott-Irving's application was refused by Legal Aid NSW. Mr Scott-Irving has now appealed that decision to the Legal Aid Review Committee in accordance with s.56 Legal Aid Commission Act 1979. That appeal has not to date been determined. We have today been formally requested by Legal Aid NSW to obtain an advice from senior counsel pursuant to s.33 Legal Aid Commission Act 1979 for the purposes of assisting the Legal Aid Review Committee to determine Mr Scott-Irving's appeal. On that basis we write on behalf of Mr Scott-Irving seeking to vacate the hearing of the above matter pursuant to s.57 Legal Aid Commission Act 1979. The hearing is listed to commence on 28 July 2014 with an estimate of 10 days. We advise that at this stage we are not the solicitor on the record and Mr Scott-Irving remains self represented. We are advised by the Legal Aid Commission that the Legal Aid Review Committee next sits on 23 July 2014 and fortnightly after that. The Legal Aid Review Committee will not sit on the appeal again until the advice is obtained from Senior Counsel. Could you please advise the writer at your earliest opportunity whether the above matter is likely to be vacated so that we can advise Mr Scott-Irving. Mr Scott-Irving is anxious to know the outcome of this application so that he can know whether he needs to prepare to represent himself in the above proceedings should the hearing date not be vacated. Should you require clarification of any matter raised in this correspondence please do not hesitate to contact the writer." 2As the defendant opposed the application for adjournment I listed the adjournment application for hearing before me on 23 July 2014 at 9.15 am. The plaintiff did not appear at the hearing of his adjournment application. Ms Bonnor appeared on behalf of the solicitor, Randall Legal, in respect of which a grant of Legal Aid has been made. Randall Legal is not the solicitor on the record for the plaintiff, who has appeared for himself to date. Ms Bonnor was in a position to inform me of the chronology of the plaintiff's application for legal aid and provided me with a useful document which set out that chronology. She was not instructed generally in the matter and confirmed that the brief to Randall Legal from the Legal Aid Commission was confined to an investigation pending the determination of the plaintiff's appeal against the refusal of legal aid both initially and on redetermination as set out in more detail below.