Aboriginal Housing Company Ltd v Kaye-Engel
[2013] NSWSC 1906
•13 December 2013
Supreme Court
New South Wales
Medium Neutral Citation: Aboriginal Housing Company Ltd v Kaye-Engel [2013] NSWSC 1906 Hearing dates: 13 December 2013 Decision date: 13 December 2013 Jurisdiction: Common Law Before: Davies J Decision: Defendant referred to the Registrar of the Court for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to rule 7.36 UCPR
Catchwords: LEGAL AID - pro bono assistance - claim for termination of residential tenancy - cross-claim by tenant - tenant self-represented - difficulty of discerning claims made in cross-claim - referred for pro bono assistance limited to advice and drafting documents Legislation Cited: Residential Tenancy Act 2010
Uniform Civil Procedure Rules 2005Category: Interlocutory applications Parties: Aboriginal Housing Company Ltd (Plaintiff)
Natalie Kaye-Engel (Defendant)Representation: Counsel:
L Edwards (Plaintiff)
Natalie Kaye-Engel (Defendant)
Solicitors:
Ashurst Australia (Plaintiff)
In person (Defendant)
File Number(s): 2013/90824
Judgment
These proceedings involve a claim by the Aboriginal Housing Company Ltd against the Defendant, Natalie Kaye-Engel. At the time of delivery of these reasons there is no Statement of Claim on the file. However, I have been informed by Mr Edwards, who appears for the Plaintiff, that the principal form of relief claimed is that the residential tenancy be brought to an end, that the Plaintiff have possession of the property, and that there be damages awarded for unpaid rent.
Initially the Plaintiff had commenced proceedings in the Consumer Trader and Tenancy Tribunal as might be expected in respect of a residential tenancy agreement. Ms Kaye-Engel subsequently commenced proceedings in the Equity Division of this Court against the Aboriginal Housing Company.
Those proceedings eventually came before Kunc J on 14 June 2013 on various applications. The result of those applications were orders made by Kunc J which provided in substance that the proceedings should continue in a different form with the present Plaintiff being the Plaintiff in the proceedings and Ms Kaye-Engel being the Defendant. Her claims were then able to be brought by way of cross-claim in the proceedings as reconstituted.
At the same time his Honour made an order transferring the proceedings, which he said would include the CTTT proceedings, to the Possession List in the Common Law Division. It is not apparent what jurisdiction this Court has in relation to a claim for possession pursuant to a residential tenancy agreement by virtue of s 71 of the Residential Tenancy Act 2010. At the present time it is not necessary to form a final view about that.
The application that is brought before me today as the Common Law Duty Judge by the Defendant principally seeks a referral for pro bono assistance. Other relief she seeks, which concern procedural matters relating to the filing and service of documents directed by the Court, is not opposed by the Plaintiff.
The affidavit filed in support of the motion does not give me a great deal of assistance for matters that I need to know for the purposes of an order under rule 7.36 UCPR for referral for pro bono assistance. The Defendant says that she is not legally qualified, and has had no legal help. She says she is 63 years of age, with chronic illnesses which impair her thinking. It is not necessary to set out the detail of those.
However, there is an earlier affidavit filed on 6 August 2013 in support of another motion filed the same date. Annexed to that affidavit is an application for Legal Aid which the Defendant informed me has been refused. That application contains greater detail about her financial position. It discloses that she receives a fortnightly Centrelink pension of $457, and other income per fortnight of $100. She pays rent of $130 per week, and her total expenses per week are said to be $280. The only assets that she has disclosed are a fridge and a bed. She says she is in debt to the government for fines totalling $4,450.
The Defendant has filed a cross-claim in the proceedings on 12 September 2013. That cross-claim by no means complies with the Rules of Court for pleading. It consists of a long narrative, and identifies a large number of documents. It is very difficult to work out what precisely the causes of action contained in the cross-claim are. It is sufficient to note that the Defendant is aggrieved by the way she says the Plaintiff has behaved towards her whilst she has been a resident in the premises, the subject of the proceedings.
There are three identified matters that the Court may take into account on an application such as the present. The first two of these are the means of the litigant and their capacity to obtain legal assistance outside the scheme. Certainly the Defendant satisfies the requirement to show that her means are such that she cannot afford legal representation, and I accept her statement from the bar table that Legal Aid has been refused in the matter. My understanding is that Legal Aid would not ordinarily be provided for proceedings such as these.
The third consideration is the nature and complexity of the proceedings. It seems to me in that regard that it is in the interests of both parties, as well as the interests of the Court, that the Defendant should be given assistance so that she can properly articulate the defence that she has to the claim that is brought, and also to articulate properly the claims that she wishes to make against the Plaintiff in her cross-claim. At the moment, the case would be unnecessarily prolonged by the way the matter has proceeded to date.
I consider that the pro bono assistance, if it is available, should be limited to the legal practitioner providing her with advice about her prospects of success in the matter, and in assisting her to prepare and file any documents required in the proceedings. If the proceedings in fact go ahead as a result of any such advice, the Defendant would be in a position to make a further application for pro bono assistance for a lawyer to appear for her at the hearing of the proceedings.
Accordingly, I refer the Defendant to the Registrar of the Court for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to rule 7.36 UCPR.
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Decision last updated: 18 December 2013
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