Land and Environment Court New South Wales Medium Neutral Citation: Shoalhaven City Council v Knight [2014] NSWLEC 132 Hearing dates: 22 August 2014 Decision date: 22 August 2014 Jurisdiction: Class 4 Before: Pepper J Decision: Order made under r 7.36 of the Uniform Civil Procedure Rules 2005 for referral to Registrar for referral for pro bono legal assistance. Catchwords: PROCEDURE: order for referral to Registrar for referral to a pro bono barrister for legal assistance for a litigant in person - factors to consider. Legislation Cited: Civil Procedure Act 2005, ss 56 - 60 Environment Planning and Assessment Act 1979, ss 76A and 121B Uniform Civil Procedure Rules 2005, r 7.36 Category: Interlocutory applications Parties: Shoalhaven City Council (Applicant) Knight, Gary John (Respondent) Representation: N/A Mr M Winram (Applicant) Mr G Knight (Respondent) File Number(s): 2014/40255 and 2014/40030 Ex Tempore Judgment The Court Makes an Order for Referral to the Registrar for Pro Bono Legal Assistance 1Earlier today the parties appeared before me, at the Court's request, for a case management conference to ensure that the matter was ready for hearing next week (26 August 2014). In particular, the Court was concerned by the paucity of evidence filed by the respondent, Mr Gary Knight, in circumstances where he was not legally represented and where the orders that the applicant, Shoalhaven City Council ("the council"), were seeking in its Class 4 proceedings included the vacation and demolition of the dwelling at which he resides. 2The matter concerns the erection and use of a building without development consent contrary to s 76A of the Environment Planning and Assessment Act 1979 ("the EPAA") and the failure to comply with a clean-up notice issued by the council pursuant to s 121B of the EPAA. 3During the course of the case management conference, it became apparent from what fell from the parties that Mr Knight may have potential defences, or at the very least, potential alternatives, to the drastic relief sought by the council (this descriptor is not in any way meant as a criticism of the council, but is merely a reflection of the dramatic impact of the orders on Mr Knight if the council is ultimately successful). 4Accordingly, the Court enquired of Mr Knight if he had attempted to obtain legal assistance. Mr Knight indicated that he had, but that he had insufficient means to secure representation and that a community legal centre in Nowra had declined his request for assistance. He stressed that if it could be obtained, he desired legal representation. 5The Court therefore referred Mr Knight to the pro bono legal assistance schemes operated by both the Law Society of New South Wales and the New South Wales Bar Association. Mr Knight indicated that he would contact these organisations. 6In the meantime, the Court made inquiries with the Registrar of the Court to ascertain whether or not there was any other form of pro bono legal assistance that could be offered to Mr Knight in the event that he was unsuccessful in obtaining pro bono legal representation through either of the two organisations referred to above. 7These inquiries proved fruitful, with Mr Scott Nash of Martin Place Chambers admirably agreeing to take the brief. 8It therefore remains for the Court to consider whether or not an order for a referral for pro bono legal assistance should be made under r 7.36 of the Uniform Civil Procedure Rules 2005 ("the UCPR"). That rule relevantly provides as follows: 7.36 Referral to a barrister or solicitor. (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. ... (3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person. (4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel. ... (5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral. ... 9In my opinion, it is in the interests of justice that such a referral be made. This is because, as stated above, Mr Knight may be ordered to vacate his current accommodation and to demolish it, in circumstances where he may have an arguable defence to the proceedings, or, if such assistance is provided, marshal sufficient evidence and legal arguments that some other form of order is made by the Court. 10In coming to the above conclusion, I have taken into account: (a) the impecuniosity of Mr Knight; (b) Mr Knight's sincere but failed attempts to obtain legal assistance elsewhere; (c) that although the proceedings are not overly complex, the evidence relied upon by the council is nevertheless substantial; (d) that Mr Knight has made genuine attempts to comply with the clean-up notice and has been willing to engage in settlement discussions with the council; (e) that Mr Knight has actively participated in the proceedings. He has appeared before the Court for directions hearings and has complied with Court orders for the preparation of the matter for hearing; and (f) the council, commendably, does not oppose the making of such an order, and in fact welcomes it. This is so notwithstanding that it will almost certainly result in an application by Mr Knight to vacate the hearing date early next week. 11In making of the order under r 7.36 of the UCPR I have had regard to the provisions of ss 56 - 60 of the Civil Procedure Act 2005. 12Two final observations must be made. First, at the time the Court contemplated the making of an order under r 7.36 of the UCPR, Mr Knight was not able to attend the Court. The Court nevertheless has the power to make such an order under r 7.36(3). 13Second, the Court wishes to express its gratitude to Mr Nash for his willingness to provide legal assistance at such short notice (one working day). His actions epitomise the very best qualities of the independent bar in this State. The Court would also like to convey its appreciation for the considerable effort that Ms Michele Kearns, the clerk at Martin Place Chambers, went to in order to secure the services of Mr Nash to assist Mr Knight. Orders 14The Court therefore refers Mr Knight to the Registrar of the Court for a referral to a barrister for pro bono legal assistance. ********** 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 2014