Bott v Carter

[2011] NSWCA 96

Court of Appeal

New South Wales

Case Title:	Bott v Carter
Medium Neutral Citation:	[2011] NSWCA 96
Hearing Date(s):	11 April 2011
Decision Date:	11 April 2011
Jurisdiction:
Before:	Hodgson JA
Decision:	(1) Pursuant to rule 7.36, I refer the appellant to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance, if possible, an experienced junior counsel in the field of professional negligence, and in particular to assist the appellant with the preparation of a draft statement of claim and submissions on the appeal. (2) I extend the time for the filing of the appellant's submissions on the appeal to 23 May 2011. (3) I order that the costs of this application be costs in the appeal. [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.]
Catchwords:	PROCEDURE - Referral for pro bono assistance - Whether special reasons exist - Whether stay should be granted.
Legislation Cited:	Uniform Civil Procedure Rules 2005, r 7.36
Cases Cited:
Texts Cited:
Category:	Procedural and other rulings
Parties:	David Charles BOTT  (appellant) Trevor John CARTER  (first respondent) Clive Andreas EVATT  (second respondent)
Representation
- Counsel:	Counsel: MR BOTT (In Person)  (appellant) M DICKER  (first respondent) Ms E SCOTT (second respondent)
- Solicitors:	Solicitors: Self-represented  (appellant) Yeldham Price O'Brien Lusk  (first respondent) Lee & Lyons  (second respondent)
File number(s):	CA 2009/298512
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction:

Judgment

1. HIS HONOUR: I am dealing with a notice of motion brought by the appellant seeking the following orders:

1. That the Registrar pursuant to division 9 part 7 of the UCPR, appoint a pro-bono barrister from those whom have made themselves available to the Court for that purpose. Preferably one experienced in the field of professional negligence per orders of Justices Allsop and Tobias, on 24 February 2010.

2. That the proceedings be halted until such an appointment is made.

1. The matter has a long history. It appears that there was a referral under Uniform Civil Procedure Rules 2005 Part 7 rule 36 made by Beazley JA on 1 February 2010, and it appears that pursuant to that referral Mr Bott was represented by Mr Williams SC on the hearing of his application for leave to appeal. That application was granted by Allsop P and Tobias JA on 24 February 2010, and on that occasion their Honours made the following order:

Direct the Registrar to contact the NSW Bar Association for pro bono assistance by an experienced junior counsel in the field of professional negligence to assist the appellant with the preparation of a draft statement of claim and submissions on the appeal.

1. It appears that the request to the Bar Association was made by the Registrar on 30 March 2010, but that that no counsel was appointed or found by the Bar Association pursuant to that referral. It is put in effect for the respondents that in those circumstances there is little point to a further referral, and that in any event there are not special reasons justifying a further referral under rule 7.36(2A).

1. In my opinion, the history of attempts to obtain assistance and the obvious need for assistance does in the circumstances of this case give special reasons, and in my view it is appropriate to afford the appellant one more chance to obtain the pro bono assistance which he clearly needs. However, I agree with the submissions for the respondent that it would not be appropriate to in effect stay the progress of this appeal until such time as a pro bono barrister is found.

1. What I propose to do is in effect allow twenty-eight days for the legal assistance to be arranged, and to give a further two weeks after that for submissions to be prepared by pro bono counsel, if pro bono counsel can be found; and on that basis to extend the time for the appellant's submissions from the present time of 4 May until a date six weeks from today.

1. I think the appropriate order for costs of this application is that they be costs in the appeal.

1. For those reasons I make the following orders:

(1) Pursuant to rule 7.36, I refer the appellant to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance, if possible, an experienced junior counsel in the field of professional negligence, and in particular to assist the appellant with the preparation of a draft statement of claim and submissions on the appeal.

(2) I extend the time for the filing of the appellant's submissions on the appeal to 23 May 2011.

(3) I order that the costs of this application be costs in the appeal.

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