Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rizk v FA Constructions Australia Pty Ltd [2016] NSWCA 155 Hearing dates: 01 July 2016 Decision date: 01 July 2016 Before: Basten JA; Leeming JA; Sackville AJA Decision: Notice of motion filed 6 May 2016 dismissed Catchwords: APPEAL AND NEW TRIAL – review of single judge of appeal – order for referral for pro bono legal assistance limited to advice on prospects of success – applicant sought a referral extending to preparation and appearing on appeal – whether decision amenable to review under Supreme Court Act 1970 (NSW), s 46(4) – decision appropriate in any event given history and nature of the litigation – motion dismissed Legislation Cited: Supreme Court Act 1970 (NSW), s 39, 46, 69 Uniform Civil Procedure Rules 2005 (NSW), rr 7.33, 7.35, 7.36, 7.39, 7.40 Cases Cited: Rajski v Wood (1989) 18 NSWLR 512 Rizk v FA Constructions Australia Pty Ltd (District Court (NSW), 25 July 2014, unrep) Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 Category: Principal judgment Parties: Mr Moussa Rizk (Applicant) FA Constructions Australia Pty Ltd (Respondent) Representation: Counsel: Applicant in person N Polin SC (Respondent) Solicitors: Moray & Agnew (Respondent) File Number(s): 2016/28148 Publication restriction: Nil Decision under appeal Court or tribunal: Court of Appeal Date of Decision: 2 May 2016 Before: Barrett AJA File Number(s): 2016/28148 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] EX TEMPORE Judgment 1. JUDGMENT of the COURT delivered by LEEMING JA: The applicant, Mr Moussa Rizk, seeks to review a referral made by Barrett AJA on 2 May 2016, pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR), for pro bono assistance limited to advice on the prospects of success of his pending proceedings in this Court. 2. Mr Rizk has filed a notice of motion on 6 May 2016 seeking that the orders made on 2 May 2016 be varied such that he be granted "full Pro Bono legal assistance" not limited to the question of prospects of success. That motion is purportedly brought pursuant to s 46(4) of the Supreme Court Act. Procedural history 1. Mr Rizk brought proceedings against FA Constructions Australia Pty Ltd in the District Court for personal injury damages arising out of an accident at a construction site in August 2011. The proceedings were heard over six days in March, April and July 2014 before Letherbarrow DCJ. Mr Rizk appeared in person. His Honour stated that shortly after proceedings commenced, he "became concerned about [Mr Rizk's] ability to adequately represent himself": at [3]. Letherbarrow DCJ stood the matter over and referred Mr Rizk for pro bono assistance. Mr Rizk subsequently advised that he would continue to represent himself. 2. Letherbarrow DCJ entered verdict and judgment for FA Constructions. [1] His Honour held that while FA Constructions owed Mr Rizk a duty of care, FA Constructions had not breached that duty. His Honour indicated that had Mr Rizk succeeded, he would have awarded total damages of $94,121.20, to be reduced in accordance with a finding of 90% contributory negligence. 3. By summons filed on 28 January 2016 (more than a year after the expiry of the time to seek leave to appeal), Mr Rizk sought an extension of time to file an application for leave to appeal from the decision of Letherbarrow DCJ. 4. When Mr Rizk's motion came before Barrett AJA, Mr Rizk submitted that he required a referral for pro bono assistance for the following reasons: "I am a disability support pensioner, I am a sick person, direct from this case. I can't deal as self represented by myself. I don't write English, I don't speak English. I speak English basic but I can't write and read, it would be difficult for everyone and Supreme Court it's my last chance and please I need appointment to have lawyer deal with my case in the right way." 1. Mr Rizk indicated that he had sought and been refused legal aid. He accepted that he had had no legal advice to determine whether there was a good basis for an appeal. The following exchange occurred during argument: "HIS HONOUR: So no lawyer has looked at this matter to see whether there's any good basis for an appeal, is that right? APPLICANT: Yes, your Honour, no-one looked at, nobody. HIS HONOUR: You think yourself that there is but that's not necessarily the same thing as whether on a legal analysis there is a good ground or good basis for appealing? You don't know enough about the law to know – APPLICANT: No, your Honour. HIS HONOUR: – whether there's a good legal basis, is that right? APPLICANT: That's right, your Honour. I believe I have strong case and if I don't have strong case I wouldn't be here today." 1. Mr Maroney, who appeared for FA Constructions, noted that Mr Rizk had obtained a referral for pro bono assistance from the District Court on 25 March 2014. As that date fell within the preceding period of three years, r 7.36(2A) applied: "(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." 1. Despite this, Mr Maroney said, "There are some very serious allegations made in the affidavit in support of the leave application in respect of the conduct of the trial judge, my counsel and the barrister who provided the pro bono assistance." He concluded that "due process would suggest that that should run its course, and if a referral will assist the Court in understanding the basis of that, then it's probably the right thing to do." 2. At the conclusion of the hearing, Barrett AJA made the following order: "I order pursuant to r 7.36 of the Uniform Civil Procedure Rules that the applicant, Mr Rizk be referred by the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal advice limited however on advice on prospects of success of his proceedings in the Court of Appeal." 1. Although no reasons were published for that decision, Barrett AJA made the following remarks by way of explanation during argument: "I am going to give you the referral you want, but limited to advice on whether your appeal has prospects of success. So I am going to refer you for legal advice as to whether you have any hope of running a successful appeal. Whether you have any good grounds for appealing. It will be limited to that. And if the advice is that you don't have good grounds, well you will have to make the decision then about what you do next. If the advice is that you do have good grounds, then you have to make a decision about what you do next. But in either of those cases, you won't have this pro bono assistance to help you from that point onwards, do you understand that?" 1. The Court has been informed that an advice on the prospects of success has since been provided to Mr Rizk. Is the motion competent? 1. There is good reason to think that s 46(4) of the Supreme Court Act 1970 (NSW) does not extend to a referral under r 7.36. 2. Part 7 of the UCPR contains a number of rules dealing with matters of administration, some of which are largely administrative, in the sense that they do not, or are unlikely to, have consequences for the rights of the parties as between each other. Rule 7.36 is a provision of this kind. It provides for the court to refer a litigant to the registrar for referral to a barrister or solicitor on a panel maintained by the registrar, as provided in r 7.35. It is notable that the power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person: r 7.36(3). If a referral is made, "the Registrar must attempt to arrange for legal assistance to be provided to the litigant": r 7.36(4). If unable to arrange legal assistance within 28 days after the referral, the Registrar may make an order terminating the referral: r 7.36(4A). It is at least unusual for a registrar to have power to "terminate" an order made by a judge. A referral can only be made with the consent of the particular barrister or solicitor: r 7.36(5). In some cases, a lawyer who has agreed to accept a referral may seek leave to be excused from providing legal assistance. Rules 7.39 and 7.40 provide protection to the putative client with respect to that situation. 3. This contextual background illustrates the proposition that, although the referral is made "by order" of the court, it is in effect an administrative arrangement involving no issue between the parties. Indeed, the provision in r 7.33(5) that "[n]othing in this Division requires the Court to make a referral, or to consider a litigant's case for referral, under this Division" makes it clear that no rights are conferred; rather, there are administrative arrangements designed for the better administration of justice. 4. There are various provisions in the legislation governing the operation of the court which do not give rise to "decisions", which are justiciable in litigation between two parties. What are described as "intra-curial arrangements for the transaction of the business" of the court, whether in the Court of Appeal or any Division, pursuant to s 39 of the Supreme Court Act are an example of necessary administrative decision-making. Such arrangements give rise to no right of challenge by litigants. [2] 5. Another example of a different kind is to be found in Sinkovich v Attorney General of New South Wales. [3] That case involved an application under the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into a sentence, after rights of appeal had been exhausted. The Court held that the consideration and determination of the application by a judge in the Common Law Division involved no exercise of "judicial power" and that there was no appeal from her decision. [4] The possibility of the right to invoke the supervisory jurisdiction of the Court pursuant to s 69 of the Supreme Court Act was recognised in Sinkovich, if a relevant legal error could be established. No such application has been made in the present case, nor would it appear to have reasonable prospects of success: the supervisory jurisdiction is available only with respect to decisions which affect the rights of persons in a material respect – as already explained a referral for legal assistance is not a decision of that kind. 6. The reference to "judicial power" in this context should be understood as identifying the nature of the decision for the purpose of determining whether a statutory right of appeal is engaged, or, in this case a right to seek to discharge or vary a judgment given by a judge of appeal, or an order made or direction given by a judge of appeal, pursuant to s 46(4). To construe that provision it is necessary to read it in context. That context is provided by subss 46(1) and (2), which confer authority on a judge to exercise the powers of the Court. 7. Pursuant to s 46(1), there is power to give a judgment by consent, dismiss an appeal for want of prosecution or on the application of the appellant. There is also power to deal with costs and other matters incidental to the powers identified. Pursuant to subs (2), a judge may make an order or give a direction concerning the institution of an appeal or other proceedings in the Court, and may make an order or give a direction "in" an appeal or other proceedings, so long as those orders or directions do not involve the determination or decision of the appeal or other proceedings. 8. It is apparent from these powers that the judge is exercising judicial power. That is also apparent from subs (5), which gives the judgment, order or direction effect as a judgment, order or direction of the Court of Appeal. It would appear to follow that the power to discharge or vary such judgment, order or direction is intended to cover the various exercises of judicial power which can be undertaken by a judge alone. 9. The only power conferred by s 46 which could constitute an order by way of referral for pro bono assistance under r 7.36 is the power to make any order "in" an appeal or other proceeding, in s 46(2)(b). However, there appears to be no sound reason to read the word "in" as meaning "in relation to". The ordinary meaning of an order described as made "in" an appeal is referable to one which affects in some way the rights of the parties as between each other. That does not readily describe a referral under r 7.36. 10. The foregoing reasoning has been expressed inconclusively because this Court has not had the benefit of argument on the point. If it is correct, then the motion must be dismissed as incompetent. But even if the reasoning is not correct, the motion must nevertheless be dismissed. No further referral for pro bono assistance should be made 1. Mr Rizk's application is to vary the order made by Barrett AJA on 2 May 2016 of a limited pro bono referral, to make it a referral for full pro bono assistance including advice, representation and preparation of documents in relation to his appeal proceedings. The application appears to have been drafted by Mr Rizk without legal assistance. 2. Mr Rizk has made four submissions in support of his review application. First, Mr Rizk has submitted that there were special reasons justifying the grant of a referral for full pro bono assistance. Secondly, Mr Rizk has submitted that advice provided pursuant to his previous referral should not be taken to indicate that he had been availed of pro bono assistance in the District Court proceedings. Thirdly, Mr Rizk has submitted that the grant of a referral for limited assistance could be construed as an indication that the Court had formed an opinion on the merits of his case. Finally, Mr Rizk has submitted that a grant of full pro bono assistance was justified in the interests of justice because his appeal raises serious allegations of misconduct. 3. Mr Rizk submitted that the following matters should be taken into account by the Court as special reasons justifying the granting of his application: 1. He is disabled and is reliant on Centrelink payments as his sole source of income. 2. He has been unable to obtain legal assistance. His application for legal aid was refused. He obtained three referrals to solicitors through the Law Society's referral scheme, but none of the solicitors accepted his case on a no win no fee basis. 3. His application for an extension of time to file an application for leave to appeal, and the appeal itself, are complex and warrant full legal assistance, which would assist the Court and the interests of the administration of justice. 4. He is vulnerable because of a disability related to the subject accident and because he has a limited ability to read, write and speak English. 1. These matters were raised in Mr Rizk's affidavit of 14 April 2016 and in argument before Barrett AJA. Beyond relying on the same matters before this Court, Mr Rizk has not submitted that Barrett AJA's decision turned on a material error of fact, or failed to take into account a material consideration. Nor has Mr Rizk demonstrated why, in partially acceding to an application which his Honour was not required to consider or allow, Barrett AJA's decision was plainly wrong. 2. Mr Rizk submitted that his previous referral for pro bono assistance "was not an advice for the purpose of Pro Bono assistance and not to be construed as [though] the applicant was availed of Pro Bono Legal Assistance previously." This submission is not to the point in circumstances where Barrett AJA in fact granted a further referral, this point having been raised squarely by FA Constructions. 3. Mr Rizk then submitted that: "The granting of a limited assistance on Pro Bono could be construed and may be seen by a lawyer in the Pro Bono Panel of the said referral for limited assistance as an indication that the Court has formed an opinion on the merits of the applicant's case." 1. That submission cannot be accepted. It suffices to say that r 7.33(4) provides: "(4) A referral under this Division is not an indication that the court has formed an opinion on the merits of a litigant's case." 1. Finally, Mr Rizk submitted that it was in the interests of open justice that a full referral be granted because his appeal proceedings raise serious allegations of misconduct by the trial judge, defence counsel and the barrister who provided pro bono assistance. Barrett AJA was plainly aware of this. 2. There is no need in the present application to deal with the precise limits of the power under s 46(4), which (again) have not been the subject of submissions. It suffices to observe that Barrett AJA's referral limited to the prospects of success was an appropriate course in circumstances where Mr Rizk had obtained and subsequently rejected pro bono assistance in the District Court, and where Mr Rizk's application for leave to appeal contained serious allegations of misconduct which he seeks to agitate in his application for leave. Given that history and the nature of the allegations made by Mr Rizk, it was plainly open to Barrett AJA to limit the scope of the obligations to which any practitioner accepting the referral would become subject. 3. One additional comment should be made. Even if s 46(4) of the Supreme Court Act 1970 (NSW) extends to the review of a referral, or a refusal to make a referral, pursuant to UCPR r 7.36, this judgment should not be taken as indicating that the review should take place otherwise than on the papers. 4. For those reasons, the motion must be dismissed. ********** Endnotes 1. Rizk v FA Constructions Australia Pty Ltd (District Court (NSW), 25 July 2014, unrep). 2. Rajski v Wood (1989) 18 NSWLR 512. 3. [2013] NSWCA 383; 85 NSWLR 783. 4. At [12]. 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: 01 July 2016