Carter v Sheffield Estates Pty Ltd
[2011] FMCA 402
•30 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARTER v SHEFFIELD ESTATES PTY LTD & ANOR | [2011] FMCA 402 |
| PRACTICE & PROCEDURE – Pro-bono counsel referral – prior pro-bono counsel referrals – principles applicable to referral – interests of administration of justice. |
| Federal Court Rules (Cth), O.80, r.4 Federal Magistrates Act 1999 (Cth), ss.3 & 42 Federal Magistrates Court Rules 2001 (Cth), rr.12.03(1) & (2) Trade Practices Act 1974 (Cth) |
| Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387; [2007] FMCA 26 Carter v TimeConti Sheffield & Anor [2011] FMCA 29 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 Rivera v Minister for Home Affairs [2008] FCA 1 SZGSI v Minister for Immigration (2009) 107 ALD 414; [2009] FCA 200 Taylor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 319 |
| Applicant: | KERRIN LAURA CARTER |
| First Respondent: | SHEFFIELD ESTATES PTY LTD (TRADING AS TIMECONTI SHEFFIELD) |
| Second Respondent: | YOUSEF HASAN SALHAH |
| File Number: | PEG 99 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 18 February 2011 |
| Date of Last Submission: | 18 February 2011 |
| Delivered at: | Perth |
| Delivered on: | 30 May 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the First Respondent: | Mr C Sweeney |
| Solicitors for the First Respondent: | McCallum Donovan Sweeney |
| The Second Respondent: | No appearance |
ORDERS
The Applicant is referred to the Registrar under Rule 12.03 of the Federal Magistrates Court Rules 2001 (Cth) for referral to a lawyer on the pro bono panel for legal assistance. That assistance is to include:
(i)advice in relation to the proceedings;
(ii)the drafting or settling of documents to be filed or used in the proceedings; and
(iii)representation generally in the conduct of further proceedings before this Court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 99 of 2010
| KERRIN LAURA CARTER |
Applicant
And
| SHEFFIELD ESTATES PTY LTD (TRADING AS TIMECONTI SHEFFIELD) |
First Respondent
| YOUSEF HASAN SALHAH |
Second Respondent
REASONS FOR JUDGMENT
Pro bono application
In an Amended Statement of Claim, the applicant, Ms Carter, alleges that the respondents, a real estate agent – Sheffield Estates Pty Ltd trading as TimeConti Sheffield – and the owner of premises rented by Ms Carter – Mr Salhah, have engaged in misleading and deceptive conduct contrary to a number of sections of the Trade Practices Act 1974 (Cth)[1] in relation to her rental of a property owned by Mr Salhah and managed by TimeConti Sheffield.[2] The Property is in the northern Perth suburb of Currambine.
[1] “TP Act”.
[2] “the Property”.
Before the Court presently is an Application in a Case[3] under r.12.03 of the Federal Magistrates Court Rules 2001 (Cth)[4] made by Ms Carter for referral to a Registrar of this Court for pro bono legal assistance under the Court’s pro bono referral scheme.[5]
[3] “Pro Bono Application”.
[4] “FMC Rules”.
[5] “Pro Bono Panel Scheme”.
Ms Carter has filed an Affidavit[6] and Submissions in support of the Pro Bono Application.
[6] Affidavit of Kerrin Laura Carter, sworn 17 March 2011 (“Ms Carter’s Affidavit”).
The respondents have not filed any material, in opposition or otherwise, in relation to the Pro Bono Application.
Referral to a lawyer
The Court may refer a party to a Registrar for pro bono assistance if to do so is in the interests of the administration of justice. In determining whether to do so the Court may take into account:
a)the means of the party;
b)the capacity of the party to obtain legal assistance outside the Pro Bono Panel Scheme;
c)the nature and complexity of the proceeding; and
d)any other matter that the Court considers appropriate.[7]
[7] FMC Rules, r.12.03(1) and (2).
The interests of the administration of justice
Rules 12.01 and 12.03(1) of the FMC Rules speak of the “interests of the administration of justice”. This Court has previously observed as follows:
24. In BHP Billiton Ltd v Schultz (2004) 221 CLR 400, [2004] HCA 61, (“Schultz”) the High Court considered the nature of the “interests of justice”: Gleeson CJ, McHugh and Heydon JJ CLR at p.421, HCA at par [15] said:
The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, cost and efficiency), and in other respects conflicting, will arise for consideration. The justice referred to in s.5 is not disembodied, or divorced from practical reality.
25. Gummow J observed that the interests of justice “are even-handed”; CLR at p.445, HCA at par [100] while Callinan J referred to the requirement to “do equal justice”: CLR at p.492, HCA at par [258].
26. Some of the factors ordinarily considered when assessing the interests of justice are factors which it is mandatory for this Court to take into account under the Federal Magistrates Act and Federal Magistrates Court Rules: for example, costs and convenience of hearing and determination, earlier hearing of proceedings, availability of particular proceedings and pending proceedings in another court (in this case the Federal Court).
…
28. In assessing the “interests of the administration of justice” similar considerations to those in Schultz apply, with the qualification related to “administration of justice”. Administration means “management”: Concise Oxford Dictionary, 7th Edition (Oxford: Oxford University Press, 1984) at p.13. Thus, s.39(3)(d) of the Federal Magistrates Act is directed to a consideration of the interests of the management of justice, which must mean management by the Court of the proceedings pending before the Court.[8]
[8] Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at paras.24-26 and 28 per Lucev FM. See also Bartucciotto v Western Health Care & Ors (2007) 94 ALD 387 at 392 per Lucev FM; [2007] FMCA 26 at para.26 per Lucev FM (“Bartucciotto”).
The Federal Court in Taylor v Minister for Immigration and Multicultural and Indigenous Affairs[9] observed as follows:
10. In deciding whether to refer a matter to the Registrar under O 80 r 4, a judge undertakes an administrative function in aid of the jurisdiction of the Court: Schokker v Commissioner of Taxation [2000] FCA 1734. The decision whether to issue a referral certificate does not depend necessarily upon any assessment of the strength of the case. Indeed as O 80 r 1(4) makes clear, a referral under O 80 is not an indication that the Court has formed any opinion on the merits of a litigant’s case. Where a case is patently hopeless then that might form a basis for refusing an O 80 certificate. The ‘interests of justice’ is a wide term. It can encompass a circumstance in which, regardless of the merits of his appeal, the significance of the outcome to an appellant and perhaps to third parties such as family members is such that the appellant should be afforded every opportunity to properly present his or her case and should have legal representation for that purpose. That does not mean that if legal representation is unavailable the litigation must come to a halt. It may be that, if in the end, no pro bono practitioner is found who is willing to act then the appellant would have to represent himself.
11. … If a practitioner is able to be found to assist the appellant even at this late stage, that would no doubt be of assistance to the appellant and to the Court. But if no practitioner can be found within a reasonable time then the appellant will no doubt have to argue his appeal unrepresented.
12. … Referral under O 80 does not amount to a guarantee of representation.[10]
[9] [2005] FCA 319 (“Taylor”).
[10] Taylor at paras.10-12 per French J.
In considering an application for pro bono legal assistance pursuant to O.80 r.4 of the Federal Court Rules the Federal Court has subsequently observed as follows:
23. When considering such an application, O 80 r 4(2) empowers the Court to take into account any matter it deems appropriate, including the means of the litigant, the capacity of the litigant to otherwise obtain legal assistance and the nature and complexity of the proceeding. This discretion is a broad one, and is not limited by those matters set out in O 80 r 4(2): see Taylor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 319 at [10]–[11].[11]
[11] SZGSI v Minister for Immigration (2009) 107 ALD 414 at 419 per McKerracher J; [2009] FCA 200 at para.23 per McKerracher J.
It will not generally be in the interests of the administration of justice to refer to the Pro Bono Panel Scheme a matter which has no reasonable prospects of success.[12] For reasons set out in Carter v TimeConti Sheffield & Anor[13] this is not presently such a matter.
[12] Rivera v Minister for Home Affairs [2008] FCA 1 at para.8 per Tamberlin J (“Rivera”); Taylor at para.10 per French J.
[13] [2011] FMCA 29 (“Carter”).
Means
The Court has before it the following undisputed information in relation to Ms Carter’s means:
a)that Ms Carter is a third year university student who has not had an employed income for over two years;[14]
b)that Ms Carter relies upon Centrelink payments to pay her rent and living expenses, and that once she has paid rent there is “very little to live on”;[15]
c)that Ms Carter has a Pensioner Concession Card;[16]
d)that Ms Carter is a single mother with two young children at home of whom she has the sole care;[17]
e)the father of her children has not paid child support payments since October 2010.[18]
[14] Ms Carter’s Affidavit, para.6 and Annexure KLC 1.
[15] Ms Carter’s Affidavit, para.7.
[16] Ms Carter’s Affidavit, para.7 and Annexure KLC 2.
[17] Ms Carter’s Affidavit, para.10.
[18] Ms Carter’s Affidavit, para.8.
Based upon the above information the Court considers that Ms Carter is a person of limited financial means, who in the ordinary course, would not be able to personally fund proceedings of the type that she has instituted in this Court.
Capacity to obtain legal assistance outside the Pro Bono Panel Scheme
Ms Carter’s Affidavit indicates that:
a)she has discussed this matter at length with Legal Aid, and been advised that Legal Aid is unable to assist her with a matter of this type;[19]
b)she contacted Community Legal Services in Joondalup, who also advised her that it is unable to assist her with a matter of this type;[20]
c)she contacted some law firms, some of whom stated that they did not conduct federal matters, whilst others wanted a large retainer paid, which Ms Carter was not able to afford;[21] and
d)in preparing materials in support of the Pro Bono Application she again sought assistance from the above sources, without avail.[22]
[19] Ms Carter’s Affidavit, para.12.
[20] Ms Carter’s Affidavit, para.13.
[21] Ms Carter’s Affidavit, para.14.
[22] Ms Carter’s Affidavit, para.18.
Ms Carter has done sufficient, in the circumstances, to establish that she is unlikely to obtain legal assistance for a matter of this type outside the Pro Bono Panel Scheme.
The nature and complexity of the proceeding
Ms Carter asserts that the proceedings are sufficiently complex to warrant a referral under the Pro Bono Panel Scheme.
The matter has a long history, with proceedings commencing in the Magistrates Court of Western Australia on 23 June 2010, resulting in an orders that Ms Carter deliver up vacant possession of the Property. That was followed by a 24 June 2010 order of the Federal Court, and subsequently an order of this Court that no steps be taken to effect removal of Ms Carter from the Property.[23] Thereafter there were two Applications in a Case:
a)the first by the respondents which was only partially successful in relation to a stay or summary dismissal of the application,[24] and
b)the other by Ms Carter seeking to dispense with service outside of the jurisdiction on the second respondent, and for substituted service on the first respondent to suffice as service on the second respondent, which was unsuccessful.[25]
[23] See Carter at paras.12-15 per Lucev FM.
[24] See Carter at para.65 per Lucev FM.
[25] See Carter at para.79 per Lucev FM.
The alleged misleading and deceptive representations are lengthy and detailed in nature, and likely to lead to a degree of factual complexity, and possibly to significant evidentiary conflict. There are also potentially difficult and interesting issues arising in relation the relief sought by Ms Carter, which were noted in Carter, as follows:
The precise parameters of the claim and what is meant by “conduct on behalf of the respondents throughout the tenancy” and “a duty” to “provide safe premises” is not clear. It is possible that it might include matters which are not personal injuries, and it might, for example, allege injury, being loss or damage, as a consequence of conduct which constitutes a breach of the Tenancy Agreement. That might constitute loss or damage for the purposes of a misleading and deceptive conduct claim, assuming that an appropriate contractual representation is relied upon, and the loss or damage was proven. However, if this is what is intended, it is not readily discernible from the Amended Statement of Claim as presently pleaded.
Ms Carter’s claim is not therefore maintainable in relation to the “pain and suffering, humiliation, embarrassment and stress” referred to in paragraph 10 of the Amended Statement of Claim. At this stage, however, the Court is not prepared to conclude that the alleged misleading and deceptive conduct does not extend to the suffering of “injury” constituting “loss and damage” for the purposes of s.82 of the TP Act. That is not only because the words “loss or damage” are wide in their operation, but also because it is not desirable to do so at this stage because the circumstances of the case are not so clear as to be able to satisfactorily conclude that Ms Carter’s claim of “injury” cannot be sustained, and it is therefore not appropriate to deal with this aspect of the matter summarily. The Court is not to be taken as minimising the difficulties facing Ms Carter on the Amended Statement of Claim as it now stands, but at this stage the claim for s.82 relief in respect of “injury” cannot be foreclosed.
The Court has not considered whether the associated jurisdiction of the Court might be invoked in respect of this aspect of the matter.[26]
[26] Carter at paras.62-64 per Lucev FM (footnotes omitted).
Overall, the matter is of a nature whereby Counsel, in giving advice in relation to the proceedings, might be of assistance not only to Ms Carter but also, ultimately, to the Court. Counsel will be able to advise on the merits and the pleadings. Depending upon Counsel’s advice it is possible that the matter may go no further, resulting in an expedient and less costly resolution of the matter.[27] If, however, Counsel advises that the matter has merit, and it is not settled by the parties or in Court ordered mediation, Counsel would also be of assistance to the Court in arguing the matter on behalf of Ms Carter, and explaining the relevant arguments and evidence to the Court. In short, there will be an appropriate exposition of Ms Carter’s arguments, and a proper contradictor for the arguments put by the respondents.
[27] See Federal Magistrates Act 1999 (Cth), ss.3 and 42.
The Court is of the view that the nature and potential complexity of the matter is such that Counsel would be of assistance to:
a)Ms Carter generally;
b)Ms Carter in the preparation of relevant Court documents; and
c)Ms Carter and the Court in the future conduct of the proceedings.
The Court however notes and adopts what it said in Bartucciotto:
The Court…does not consider the Applicant incapable of presenting the case [her]self. If the Applicant does so the proceedings will probably be slower, the presentation less clear, and a great deal more explanation might be required from the Court to ensure the proceedings stay on track (… all generally good reasons for the referral of the matter and the assistance of counsel). But if no pro bono assistance is forthcoming the Applicant can, in the Court’s view, present [her] case with sufficient adequacy.[28]
[28] Bartucciotto ALD at 393-394 per Lucev FM; FMCA at para.36 per Lucev FM.
Therefore, in the event that pro bono assistance is not forthcoming as a consequence of any referral by the Court, Ms Carter would still be expected to prepare and argue this matter.
Other matters
Ms Carter’s health, would not, of itself, be reason, or sufficient reason, to warrant a referral for pro bono assistance, but in this case the fact that she may have stress and heart conditions[29] (on her evidence, which although not challenged, is not supported by medical evidence) might reinforce a conclusion that it would be an appropriate case for a referral for pro bono assistance.
[29] Mrs Carter’s Affidavit, para.20-21.
Conclusion
In all the circumstances the Court considers that it is in the interests of the administration of justice that a referral to a Registrar for pro bono assistance for Ms Carter ought to be made, and that assistance ought to include:
a)advice in relation to the proceedings;
b)the drafting or settling of documents to be filed or used in the proceedings; and
c)representation generally in the conduct of further proceedings before this Court.
There will be no order as to the costs of the Pro Bono Application.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 30 May 2011
8
4