Land and Environment Court New South Wales Medium Neutral Citation: Auburn City Council v Strak [2015] NSWLEC 180 Hearing dates: 20 November 2015 Date of orders: 20 November 2015 Decision date: 20 November 2015 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) Under r 7.36 of the Uniform Civil Procedure Rules 2005 the respondent is referred to the Registrar of the Court for a referral to a barrister or solicitor on the Pro Bono Panel for legal assistance by way of advice and representation of the respondent at trial. (2) The Registrar of the Court is to arrange for a Polish interpreter for the respondent at trial. Catchwords: PRACTICE AND PROCEDURE – civil enforcement proceedings – fixed for trial in two weeks – motion by respondent for orders for mediation and for the Court to provide him with legal representation and an interpreter. Legislation Cited: Civil Procedure Act 2005 s 26 Local Government Act 1993 s 124 Uniform Civil Procedure Rules 2005 r 7.36 Category: Procedural and other rulings Parties: Auburn City Council (Applicant) Jan Strak (Respondent) Representation: COUNSEL: A Gough, solicitor (Applicant) J Strak in person (Respondent) SOLICITORS: Storey & Gough (Applicant) N/A (Respondent) File Number(s): 41043/15 EX TEMPORE Judgment 1. The respondent is the owner of 7 Dawn Crescent Regents Park. On 28 July 2014 the applicant Council served the respondent with an order directing the removal of waste deposited on the property under s 124 of the Local Government Act 1993. The respondent did not comply or comply fully with Council's order. Council brought these proceedings seeking orders that he comply with the s 124 order or, if he did not do so, that Council enter the premises to give effect to the order. 2. The parties participated in an unsuccessful mediation under s 26 of the Civil Procedure Act 2005 on 3 November 2015. The matter is set down for trial before me for two days on 8 and 9 December 2015. 3. On 13 November 2015 the respondent filed a notice of motion, which I have heard this morning, seeking orders that: 1. a further mediation be conducted before 24 November 2015. I note that this is the date that had been fixed for a pre-trial mention, which instead has been conducted before me this morning; 2. the Court provide the respondent with representation by a legal practitioner; and 3. the Court provide the respondent with an interpreter. 1. Council opposes a further mediation but not the other orders sought. 2. The supporting affidavit of the respondent, who describes himself as a self-employed farmer, includes the following allegations: 1. he is dissatisfied with the attitude of Council representatives at the earlier mediation particularly, he says, because they would not acknowledge his "common law rights" and had the notion that they had acquired "overlord status" to allow or disallow what he wanted to do on his land; 2. Council is not a lawful local government entity because a 1988 constitutional referendum effectively abolished local government and consequently the Local Government Act 1993 is invalid; 3. Council employees have harassed and trespassed on his property, as a result of which he has suffered mental distress. That is another reason, he says, why he needs legal representation and an interpreter; 4. at the next mediation (if ordered), he will table an offer to Council that he will remove the accumulated unsightly material on his property but he requires time to do so, and the fair time to do so is two years although he expects to do it before then; 5. Council has damaged or allowed damage to his property especially his fence and access road. 1. Unlike criminal and contempt of court matters, in civil matters the Court does not normally provide an interpreter: it is up to parties to arrange and pay for their own interpreters. However, the Court has a discretion to provide an interpreter. It appears that the respondent does not have the means to pay for an interpreter. The respondent's native language is Polish. He had the assistance of a friend this morning in communicating with the Court. In my view he would be assisted by the provision of a Polish interpreter at trial. I propose to order that the Registrar of the Court arrange a Polish interpreter for him at trial. 2. The Court has power to refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance under r 7.36 of the Uniform Civil Procedure Rules 2005, which provides: 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. (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. (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. (4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant's referral, the registrar may make an order terminating the litigant's referral. (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. (6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister. 1. My enquiries of the respondent indicate that the prohibition on referral in r 7.36(2A) is inapplicable. 2. There is no evidence as to the respondent's means and capacity to obtain legal assistance outside the scheme. However, without objection he explained from the bar table, and I accept, that he does not have the means to pay for legal representation or an interpreter and that he has unsuccessfully attempted to obtain legal aid and legal assistance through other avenues. Given the nature of the proceedings and his language difficulties, I am satisfied that it is in the interests of the administration of justice to refer him, by order, to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. 3. I am not satisfied that I should order a further mediation. I indicated that to the parties earlier this morning and directed them instead to have a settlement conference forthwith. I understand that some progress may have been made at the settlement conference but settlement has not yet been achieved. The matter will therefore proceed to trial. 4. The orders of the Court are as follows: 1. Under r 7.36 of the Uniform Civil Procedure Rules 2005 the respondent is referred to the Registrar of the Court for a referral to barrister or solicitor on the Pro Bono Panel for legal assistance by way of advice and representation of the respondent at trial. 2. The Registrar of the Court is to arrange for a Polish interpreter for the respondent at trial. ********** 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: 23 November 2015