Commissioner of Police, NSW Police Force v Hariz

[2019] NSWSC 905

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of Police, NSW Police Force v Hariz [2019] NSWSC 905
Hearing dates:	15 July 2019
Decision date:	15 July 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) The first defendant’s application for referral to the registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance is granted.
Catchwords:	APPLICATION FOR PRO BONO ASSISTANCE – application by defendant for pro bono assistance to resist application for judicial review of magistrate’s decision – proceedings involve questions of law – would advance the administration of justice to order the referral – defendant impecunious and in receipt of carer’s pension to look after ailing mother
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW) Local Court Act 2007 (NSW), s 70 Uniform Civil Procedure Rules 2005 (NSW), rr 7.35, 7.36
Category:	Procedural and other rulings
Parties:	Commissioner of Police, NSW Police Force (Plaintiff) Raed Hariz (First Defendant) Local Court Magistrate Richard Funston (Second Defendant)
Representation:	Counsel: Defendant in person   Solicitors:
File Number(s):	2019/169320

Judgment: EX TEMPORE

Introduction

1. By amended summons commencing an appeal the Commissioner of Police, NSW Police Force (the plaintiff) applies pursuant to s 70(1) of the Local Court Act 2007 (NSW) and Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW) for orders setting aside orders made by Funston LCM on 23 and 24 May 2019 for the return of certain property to Raed Hariz (the first defendant), including a laptop computer. This matter is listed for hearing before this Court on 29 July 2019. As the defendant maintains his right to the return of the property which was ordered by Funston LCM, the proceedings will be contested.

2. By notice of motion filed on 9 July 2019 the defendant applies for a referral for legal assistance under Division 9 Part 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). He relies on an affidavit sworn on 15 July 2019.

The facts

3. The defendant appeared on his own behalf before me today and informed me that he is in receipt of a carer’s pension which is paid to him because he is caring for his mother with whom he lives in a home which she owns at Bass Hill. He informs me that he has no spare cash apart from his carer’s pension and that his mother is also on a pension and has no cash resources. He has also informed me that he applied for Legal Aid. He attended what is referred to as a “30-minute clinic” but was informed that Legal Aid was refused, not as I understand it by reason of the merits of the matter, but by reason of the category into which the matter falls.

4. My knowledge of the proceedings before the magistrate or the basis on which the Commissioner seeks to challenge that decision is not sufficient for me to dilate on the merits of the plaintiff’s application even if it were appropriate for me to do so.

The relevant legislation

5. Division 9 of Part 7 of the UCPR provides that the court may refer a matter for legal assistance with a view to facilitating, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance. Pursuant to UCPR, r 7.35 the registrar of this court maintains a pro bono panel made up of barristers and solicitors who have agreed to participate in the scheme by making themselves available to provide legal assistance in the circumstances contemplated by Division 9 of Part 7.

6. In the present case the defendant is, as it were, an unwilling litigant in that he was successful in the Local Court and the orders made on his application are the subject of challenge.

Consideration

7. The matters which I may take into account in deciding whether to refer a litigant to the panel are set out in UCPR, r 7.36. The first relevant matter is the means of the litigant to which I have already referred. The second relevant matter is the litigant’s capacity to obtain legal assistance outside the scheme. I am satisfied on the basis of what the defendant has told me from the bar table that he has already endeavoured to obtain Legal Aid but has been unsuccessful. The third relevant matter is the nature and complexity of the proceedings. As I have said it is not possible for me, on the material before me, to determine the complexity of the proceedings but I note from the amended summons commencing an appeal that the matters raised by the plaintiff in the proceedings are tantamount to an application for judicial review. Accordingly it is necessary for the plaintiff to establish an error of law. Matters such as these are pre-eminently within the expertise of legal practitioners and may be beyond the usual realm of litigants in person. It would undoubtedly assist the court as well as the defendant were the defendant to be legally represented in such proceedings.

8. I note that under UCPR, r 7.36(2A) I am prohibited from referring a litigant for assistance if a litigant has already obtained assistance within the preceding period of three years. I am informed by the defendant that he has not made any previous application. Indeed, there is no suggestion that this has occurred.

9. Whether a referral is in the interests of the administration of justice gives rise to countervailing concerns. On the one hand it is important and desirable that litigants obtain legal assistance in matters in this court where there is likely to be, as in the present case, a degree of legal complexity. Legal advice and legal representation tends to promote the efficient and cost-effective disposal of the court’s business. Furthermore, such a referral may well improve the prospects of a litigant obtaining such advice as will permit him to assert his legal rights in the most efficient and cogent way. On the other hand those legal representatives who have volunteered for inclusion on the pro bono panel and offered to provide those services without remuneration ought not be exploited. For this reason it is important that matters are not referred to the panel unless there is some real basis for considering that such a course will be beneficial to the administration of justice.

10. In the present case, as the defendant is opposing the orders sought by the Commissioner which will necessarily give rise to questions of law, I am satisfied that it is in the interests of justice to refer him for legal assistance. Accordingly, the application is granted.

Orders

11. I make the following order:

1. The first defendant’s application for referral to the registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance is granted.

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Decision last updated: 16 July 2019