Chaina v Presbyterian Church (NSW) Property Trust

[2015] NSWCA 66

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Chaina v Presbyterian Church (NSW) Property Trust [2015] NSWCA 66
Hearing dates:	16 March 2015
Date of orders:	16 March 2015
Decision date:	16 March 2015
Before:	Emmett JA
Decision:	(1) Under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), the matter is to be referred to the Registrar of the Court of Appeal for referral to a barrister or solicitor on the Pro Bono Panel for assistance consisting of advice in relation to the proceedings, drafting an amended notice of appeal and representation at the next directions hearing. (2) The appeal, including the respondent’s motion, be stood over for directions at 10:15 am on Monday, 25 May 2015 before the referrals judge.
Catchwords:	PROCEDURE – request for referral to solicitor or barrister on the Pro Bono Panel – Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 7.37, 13.4
Cases Cited:	Chaina v Presbyterian Church (NSW) Property Trust (No 25) [2014] NSWSC 518
Category:	Procedural and other rulings
Parties:	George Chaina (First Appellant) Rita Chaina (Second Appellant) Proton Technology Pty Ltd (Third Appellant) Deluxe Chemicals Pty Ltd (Fourth Appellant) Presbyterian Church (NSW) Property Trust (Respondent)
Representation:	Counsel: Self-represented (First and Second Appellants) G Turner (Respondent) Solicitors: Self-represented (First and Second Appellants) Curwoods Lawyers (Respondent)
File Number(s):	2014/249039
Publication restriction:	Nil
Decision under appeal	Court or tribunal: NSW Supreme Court Jurisdiction: Common Law Division Citation: Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009 Date of Decision: 31 July 2014 Before: Davies J File Number(s): 2002/69354

Judgment

1. In October 1999, one of the sons of the present applicants, George and Rita Chaina, drowned while on a school hike conducted by The Scots College, which is operated by the respondent (the Trust). Mr and Mrs Chaina, along with other family members and companies operated by them, brought proceedings in the Common Law Division against the Trust claiming, inter alia, damages for nervous shock caused by the Trust’s negligence. On 23 May 2014, Davies J published reasons for concluding that three of the plaintiffs in the proceedings before him (including Mr and Mrs Chaina) were entitled to damages in various amounts under various heads: Chaina v Presbyterian Church (NSW) Property Trust (No 25) [2014] NSWSC 518.

2. On 31 July 2014, Davies J set aside all previous costs orders made in the proceedings and entered judgment for the Trust against each of the plaintiffs in the sum of $7,770.869: Chaina v Presbyterian Church (NSW) Property Trust (No 26) [2014] NSWSC 1009. That judgment represented a lump sum for costs less set-off of the damages to which some of the plaintiffs were entitled in the light of his Honour's findings. The order for costs against the plaintiffs was made on the basis of compromise offers that had been made on behalf of the Trust and rejected.

3. On 31 October 2014, the plaintiffs filed a notice of appeal. In the meantime, they also applied for various forms of legal aid, all of which have been unsuccessful. On 20 November 2014, the Trust filed a notice of motion seeking that the proceedings be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) or alternatively that the appellants be ordered to provide security for the costs of the appeal. An amended notice of motion filed on 3 December 2014 sought similar relief.

4. By a motion filed on 9 February 2015, the applicants seek assistance under the pro bono scheme provided for in the UCPR. Rule 7.36(1) of the UCPR provides that the Court may, by order, refer a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. The Court may make such an order if satisfied that it is in the interests of the administration of justice to do so. Under r 7.36(2), in deciding whether it is so satisfied, the Court may take into account the means of the litigant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings, and any other matter that the Court considers appropriate.

5. I am satisfied from the material exhibited to the affidavit of Mrs Rita Chaina of 13 March 2015 that the means of the applicants would not enable them to retain legal advisors to give proper advice and appear in connection with the appeal. I am also satisfied from the evidence that all avenues for obtaining legal assistance outside the pro bono scheme have been explored without any success. The proceedings in one sense are reasonably straightforward, but the trial was conducted over a considerable period of time and the factual matrix against which the claims were made is not uncomplicated.

6. Under r 7.37 of the UCPR, a referral may be made for the following kinds of legal assistance:

1. advice in relation to the proceedings;

2. representation on directions hearing, interlocutory or final hearing, arbitration or mediation;

3. drafting or settling of documents to be filed or used in the proceedings;

4. representation generally in the conduct of the proceedings or of part of the proceedings.

7. In all of the circumstances, I consider that it is appropriate to refer the applicants to the Registrar for referral to a barrister or solicitor if possible on the Pro Bono Panel for legal assistance consisting of advice in relation to the proceedings and drafting an amended notice of appeal if thought appropriate. The assistance would also include representation at the next directions hearing in relation to the appeal, if the appeal is to proceed.

8. Clearly, it will not be possible for the Court to know what advice is proffered to the applicants by any barrister or solicitor to whom they are referred by the Registrar. However, it should be understood by the applicants that the purpose of the referral at this stage is to enable them to get proper advice as to whether or not the appeal has any prospects of success. I should say that while the applicants were represented for a substantial part of the proceedings, they had no legal representation at all for approximately half of the trial. It seems apparent that they have had no legal advice or representation in relation to the preparation of the notice of appeal. It will be a matter for the relevant member of the Pro Bono Panel on the next directions hearing as to whether an application for further assistance should be pursued.

9. I therefore propose to make the following orders:

1. Under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), the matter is to be referred to the Registrar of the Court of Appeal for referral to a barrister or solicitor on the Pro Bono Panel for assistance consisting of advice in relation to the proceedings, drafting an amended notice of appeal and representation at the next directions hearing.

2. The appeal, including the respondent’s motion, be stood over for directions at 10:15 am on Monday, 25 May 2015 before the referrals judge.

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Decision last updated: 23 March 2015