Kern v Qantas Airways Limited [2015] NSWSC 1143

Supreme Court New South Wales

Medium Neutral Citation: Kern v Qantas Airways Limited [2015] NSWSC 1143 Hearing dates: 6 August 2015 Decision date: 06 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) I refer Mr Kern to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance. Catchwords: PRACTICE AND PROCEDURE – application for referral to pro bono panel for legal assistance – application not opposed – whether referral is in the interests of the administration of justice – whether other pre-conditions established Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 7.33, 7.34, 7.36(1), 7.36(2), 7.36(2)(a) Category: Procedural and other rulings Parties: Seymour Kern (Plaintiff) Qantas Airways Limited (First Defendant) Airbus Group (Second Defendant) Rolls Royce Plc (Third Defendant) Representation: Counsel:

Solicitors: In person (Plaintiff) Holman Fenwick Willan (First and Third Defendants) Clayton Utz (Second Defendant) File Number(s): 2015/187110

ex tempore Judgment 1. This is an application by Mr Kern, who is the plaintiff, for referral to a barrister or solicitor on the pro bono panel. It came before me in the Duty List this morning. 2. Mr Turnbull has appeared, in effect, for the second defendant, and Ms Lamart for the first and third defendants. Their position is that they neither consent nor oppose me making a referral. In oral submissions, they confirmed my initial thought that it could well be the case that they would regard such a referral as in the interests of the administration of justice from the perspective of their own clients, quite apart from that of the plaintiff. 3. To state the background very succinctly, Mr Kern alleges that he was in an aeroplane that suffered a serious malfunction. As a result of that event, he has claimed a very large amount of money, though he explained to me today that it is not so much the money but rather the principle of the thing. Without reviewing in detail the pleading and affidavits that Mr Kern has filed, it can be said respectfully that there are unusual aspects, even allowing for the fact that he is a layperson who is trying to comply with complicated substantive and procedural rules. 4. It was listed today as a motion of at least one of the defendants seeking to have Mr Kern's claim struck out, but earlier today the Registrar saw fit to stand that over for hearing on 8 October 2015. 5. It can be seen that Mr Kern's application is brought pursuant to Div 9 of Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules). 6. It can be seen that I am called upon, by way of r 7.33, to construe matters in accordance with a general purpose of providing legal assistance to litigants, who otherwise are unable to obtain assistance, when it is in the interests of justice to do so. 7. It can also been seen that, pursuant to r 7.34, Mr Kern falls within the definition of a litigant. 8. It can also been seen that, pursuant to r 7.36(1), if I am satisfied in the interests of the administration of justice that to do so, I may refer a litigant such as Mr Kern to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance. 9. There are a number of matters I am permitted to take into account that are contained in r 7.36(2), the first of which is the means of the litigant. Mr Kern has told me today, and I accept, he is not a man of great means. 10. He has also informed me, and again I accept, that he has sought some help from Legal Aid or Community Legal Centres, but they have not been able to assist him so far. 11. I am also permitted to take into account the nature and complexity of the proceedings in that regard. Having read what Mr Kern has filed, I respectfully think, in light of the nature of the proceedings, it could very well be in the interests of the administration of justice for Mr Kern to have a frank discussion about his claim with a solicitor or barrister well versed in this area of law. 12. It can be seen from r 7.36(2)(a) that I am not permitted, unless special circumstances are established, to refer a litigant who has been referred within three years previous to today. Mr Kern has assured me that that has not occurred, and I accept his assurance. 13. I think, in short, that all of the preconditions for referral have been made out, bearing in mind especially that the proposal of Mr Kern has not been opposed by his opponents. 14. And I think it is particularly appropriate, in light of the fact that, in a little over two months, there will be an application for Mr Kern's claim to be struck out in its entirety. 15. I have impressed upon Mr Kern that it is his responsibility to speed the plough, as it were, in terms of making sure, if he is asked to attend a solicitor or barrister, or asked to provide any document and so forth by the Registrar, that he promptly does so. I say that especially because Ms Lamart brought to my attention there is a timetable in place that calls upon Mr Kern to file an affidavit as soon as 20 August 2015. 16. For the foregoing reasons, I make the following order pursuant to r 7.36 of the Uniform Civil Procedure Rules: 1. I refer Mr Kern to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance.