Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fagin v Australian Leisure and Hospitality Group P/L [2018] NSWCA 37 Hearing dates: 26 February 2018 Date of orders: 26 February 2018 Decision date: 26 February 2018 Before: Payne JA Decision: Application for referral to Registrar for appointment of pro bono counsel granted. Catchwords: CIVIL PROCEDURE – application for the appointment of pro bono counsel – no issue of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Fagin v Australian Leisure and Hospital Group [2017] NSWCA 306 Fagin v Australian Leisure and Hospitality Group Pty Ltd [2017] NSWLEC 59 Texts Cited: None Category: Principal judgment Parties: Sally-Anne Fagin (Appellant) Australian Leisure and Hospitality Group P/L (Respondent) Representation: Solicitors: Applicant (In person) Thomson Geer (Respondent) File Number(s): 2017/187102 Publication restriction: None [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.] Judgment- EX TEMPORE [Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]] 1. PAYNE JA: Before the Court is a motion filed by Ms Sally-Anne Maree Fagin seeking three orders. The only order pressed this morning is one seeking a referral to the Registrar of the Court for appointment of pro bono counsel. 2. The applicant has appealed against a decision of Robson J dismissing class 4 proceedings brought by Ms Fagin in the Land and Environment Court: see Fagin v Australian Leisure and Hospitality Group Pty Ltd [2017] NSWLEC 59. Australian Leisure has operated the Charles Hotel in Fairy Meadow since 2012 pursuant to a lease from the owner. Ms Fagin has not lived far from the hotel since 2005. 3. In 2016, Ms Fagin commenced class 4 proceedings seeking orders compelling Australian Leisure to comply with condition 17 of development consent DA26918 granted by Wollongong City Council on 14 November 2006 and other orders relevantly in relation to audio speakers installed in the beer garden of the hotel grounds. Ms Fagin failed before the primary judge in essence because his Honour held that the 2006 consent had lapsed. Accordingly, Australian Leisure was not bound by condition 17. Ms Fagin was also unsuccessful in respect to the other orders she sought. 4. On 25 August 2017 Ms Fagin filed a notice of appeal. The original notice of appeal contained 33 grounds. An amended notice containing fewer grounds was subsequently filed. The background of the matter was extensively canvassed in an earlier judgment of the Court: Fagin v Australian Leisure and Hospital Group [2017] NSWCA 306 per McColl JA. McColl JA there concluded that Ms Fagin's appeal was not hopeless or unreasonable. Her Honour said at [68]: "[68] In my view, Ms Fagin has an arguable complaint that the primary judge erred in failing to deal with the audio speakers issue as an independent basis of relief and, too, in considering it as an alternative basis for refusing her relief in the exercise of his discretion. Accordingly, in my view, grounds 40 – 42 in the amended notice of appeal cannot be said to be hopeless, unreasonable or of an harassing nature." 1. The only matter now before the Court is the application by Ms Fagin for referral for pro bono assistance pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.36. The appeal was filed on 25 August 2017 and the application for pro bono assistance was made only recently. The Court notes the matter has been listed for hearing on 11 April 2018. 2. Applications for pro bono assistance are not granted in all cases. The power of the Court to refer a litigant to the Registrar for referral to a barrister on a pro bono panel is dependent on the Court being satisfied that the referral is in the interests of the administration of justice. The Court may not refer a litigant for assistance if assistance has been obtained under a previous referral during the preceding three years, absent special reasons for a further referral. 3. As the applicant noted, she has sought pro bono assistance in the past. For reasons that need not be addressed in detail today, that referral was unsuccessful. I am satisfied that assistance has not been obtained by Ms Fagin under a previous referral during the preceding three years. 4. The primary purpose of referral is to allow an impecunious litigant to obtain representation. The present is not the occasion to consider in any detail the merits of Ms Fagin's appeal, particularly in the light of McColl JA's detailed decision already referred to. To take such a step would be subvert the purpose of considering whether the appellant would benefit from pro bono assistance. 5. McColl JA has already expressed the views I have set out above about the arguability of at least part of the appeal. Whilst the applicant is a litigant with an excellent understanding of the history of the proceedings and the facts, in my view she would obtain benefit from pro bono counsel and it is in the interests of the administration of justice that I make the referral. Accordingly the application for referral to the Registrar for the appointment of pro bono counsel is granted. 6. Before leaving the matter I should record that the hearing is fixed for 11 April 2018 and all involved in the case should understand that the Court proposes to go ahead and hear the case on that day. Any potential pro bono counsel should be informed of this matter and what I have said. I do not propose to make order 2 in the notice of motion and I note that the Registrar has already stood over the proposed order 3 about further evidence to the hearing of the substantive appeal on 11 April 2018. 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: 09 March 2018