Connolly v Tweed Shire Council

[2021] NSWDC 257

District Court

New South Wales

Medium Neutral Citation:

Connolly v Tweed Shire Council [2021] NSWDC 257

Hearing dates:

15 June 2021

Date of orders:

15 June 2021

Decision date:

15 June 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraphs [8] and [9]

Catchwords:

TORTS – negligence – occupier’s liability – readiness for hearing – whether referral for pro bono legal assistance is indicated

Legislation Cited:

Civil Liability Act 2005 (NSW), s 5B, 5C, 5D, s 42

Uniform Civil Procedure Rules 2005, r 7.36

Category:

Procedural rulings

Parties:

Ronald Connolly (Plaintiff)
Tweed Shire Council (Defendant)

Representation:

Counsel:
Plaintiff in person
Mr D Hanna (Defendant)

Solicitors:
Mills Oakley (Defendant)

File Number(s):

2019/338994

Publication restriction:

None

Judgment

1. The plaintiff in these personal injury damages proceedings is a 63 year old invalid pensioner who is self-represented. The hearing is scheduled to commence in Lismore today. On 30 October 2016 he was injured at a jetty owned by the Tweed Shire Council. He claims damages for alleged negligence in respect of that event.

2. The facts and circumstances surrounding the plaintiff's injury are not in substantial dispute. The legal consequences of those facts are in substantial dispute. The plaintiff is a resident of Queensland where he was denied a grant of legal aid for this litigation because the proceedings are in New South Wales. The plaintiff engaged a lawyer, a New South Wales solicitor, but that lawyer has recently declined to continue to act for the plaintiff.

3. The plaintiff is hard of hearing. He claims this disability is one of the consequences of the subject accident. There is medical evidence suggesting that he might have a cognitive impairment. This is a matter that was raised in a comment by a consultant endocrinologist who had been retained by the defendant to examine the plaintiff. That fact was properly identified by counsel for the defendant in the discharge of his duty of candour to the Court.

4. A psychiatrist who examined the plaintiff on behalf of the defendant on 20 May 2020, Dr Graham Vickery, did not consider the specific question of possible cognitive impairment in his report which followed his examination of the plaintiff. The plaintiff has been and continues to see a treating psychiatrist in Queensland every two months. No report has been obtained from that psychiatrist.

5. The plaintiff has no understanding of the terms of s 5B, 5C, 5D and s 42 of the Civil Liability Act 2005 (NSW) which feature in the pleaded defence filed in the proceedings. He has no understanding of the potential obstacles that those provisions might pose to the case he seeks to make. The plaintiff has never been referred for pro bono legal assistance.

6. In the described circumstances, I consider that for the plaintiff to proceed with his case without such assistance by continued self-representation in ignorance of the potential effect of those provisions would be contrary to the interest of the proper administration of justice. For the plaintiff to proceed with his case in those circumstances would be akin to him walking into the case blindfolded with both hands tied behind his back and towards a gaping chasm before him in the form of the cited provisions of the Civil Liability Act.

7. The Registrar of the District Court in Lismore has indicated that there is no formal pro bono legal assistance available in this area. I do not regard that position as representing a reasonable basis for not making an order for referral to pro bono legal assistance pursuant to UCPR r 7.36. Litigants needing to litigate their cases outside the Sydney metropolitan area ought not be disadvantaged by the immediate unavailability of such services.

Orders

8. In my view, in the interests of the proper administration of justice, the proper order required in this case is for the proceedings to be adjourned and for the plaintiff to be referred to the Registrar of the Court for referral to a pro bono barrister or solicitor on the pro bono panel for the provision of legal assistance. Until that occurs and the plaintiff has had advice in that regard, I consider that this case should not proceed to a hearing, and I so order.

9. I order that the proceedings be stood over for hearing to the next sittings in Lismore commencing on 23 August 2021 with liberty to apply for further orders if required.

**********

Decision last updated: 17 June 2021