Bobolas v Waverley Council

The applicants, Mr. and Mrs. Bobolas, sought to appeal a decision of the District Court of New South Wales concerning their property. Waverley Council was the respondent. The dispute involved issues of evidence and procedure, specifically concerning the legal capacity of one of the applicants and the extent of client legal privilege in communications with Legal Aid.

The Court of Appeal was required to determine whether all communications between a client and the Legal Aid Commission were privileged, and whether an applicant with legal incapacity, not represented by a manager under the NSW Trustee and Guardian Act 2009, was a proper party to the proceedings. Additionally, the Court considered an application for pro bono representation, assessing the likelihood of obtaining legal assistance outside the scheme and the delay by the Legal Aid Review Committee, in light of Uniform Civil Procedure Rules 2005 (NSW) Rule 7.36.

Basten JA noted that client legal privilege does not automatically extend to all communications with Legal Aid, particularly where the Legal Aid Commission is not acting in its capacity as a legal adviser. Regarding the legal incapacity of one applicant, the Court acknowledged the absence of a manager appointed under the relevant Act, but ultimately focused on the procedural aspects of the appeal and the need for legal representation. The Court recognised the applicants' difficulty in obtaining legal assistance and the potential for delay.

The Court ordered that the applicants be referred to the Registrar for referral to a barrister on the Pro Bono Panel to assist with the hearing of the appeal and related preparatory steps. The costs of the day were made costs in the appeal.