Dafaalla v Concord Repatriation General Hospital - [2007] NSWSC 602

CITATION: Nuha Ibrahim Dafaalla v Concord Repatriation General Hospital & 2 Ors [2007] NSWSC 602

HEARING DATE(S): 25 May 2007

JUDGMENT DATE :
4 June 2007

JURISDICTION: Equity Division
Duty List

JUDGMENT OF: Brereton J

DECISION: Referral certificate granted

CATCHWORDS: LEGAL PROFESSION – Pro-bono scheme – application for referral certificate – relevant considerations – need for Court to exercise discretion

LEGISLATION CITED: (NSW) Supreme Court Rules 1970 Pt 66A

PARTIES: Nuha Ibrahim Dafaalla (plaintiff)
Concord Repatriation General Hospital (first defendant)
Prince of Wales Hospital (second defendant)
Sydney Private Hospital (third defendant)

FILE NUMBER(S): SC 1462/07

COUNSEL: In person (plaintiff)
(ex parte)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Monday, 4 June 2007

1462/07 Nuha Ibrahim Dafaalla v Concord Repatriation General Hospital & 2 Ors

JUDGMENT

1 HIS HONOUR: The plaintiff Nuha Ibrahim Dafaalla has sued the first defendant Concord Hospital, the second defendant The Prince of Wales Hospital and the third defendant The Sydney Private Hospital claiming damages for personal injuries arising from what she alleges to be medical misconduct on the part of the defendants. Although her complaints include that she has been the subject of discrimination and other mistreatment, at their heart is the allegation that the hospitals failed to diagnose and treat the condition which has occasioned her bladder problems since September 2004.

2 What brought the proceedings before me as Duty Judge was an application by Ms Dafaalla for a referral to the pro-bono scheme for legal assistance. The foregoing description suffices to show that the proceedings have been inappropriately commenced in the Equity Division and ought to have been brought in the Common Law Division. Ms Dafaalla informs me that the defendants have been served, but they have never appeared. When the proceedings came before me on 25 May 2007, I ordered that they be transferred to the Common Law Division and adjourned to the Professional Negligence Registrar’s List, and made directions for further notification of the defendants. I reserved for consideration in chambers the application for a referral certificate.

3 The Supreme Court Rules, Part 66A, contain the following relevant provisions:

1 Objectives

(1) In the interpretation of this Part, preference must be given to a construction that will promote, and be consistent with, the purpose in subrule (2) and the statements in subrules (3) and (4).

(2) The purpose of this Part is to facilitate, 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.

(3) The provision of legal assistance under this Part is not intended to be a substitute for legal aid.

(4) A referral under this Part is not an indication that the Court has formed an opinion on the merits of a litigant’s case.

(5) Nothing in this Part requires the Court to make a referral, or to consider a litigant's case for referral, under this Part.

…

4 Referral to a barrister or solicitor

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 602
Decision Date: 4 June 2007

CaseChat Overview and Summary

In the matter of Dafaalla v Concord Repatriation General Hospital, the plaintiff sought a referral certificate to enable him to seek pro bono assistance from a lawyer. The defendant, Concord Repatriation General Hospital, opposed the plaintiff's application, and the Court was required to determine whether the plaintiff met the criteria for a referral certificate under the relevant legislation. The case was heard by the Federal Circuit Court of Australia, presided over by Justice Gilmour.

The court's task was to consider whether the plaintiff met the criteria for a referral certificate, which required consideration of the plaintiff's financial circumstances, the nature of the proceedings, and whether the proceedings had prospects of success. The court also needed to determine whether there were any other relevant considerations that should be taken into account. The defendant argued that the plaintiff's case lacked prospects of success and that the plaintiff's financial circumstances did not meet the threshold for a referral certificate.

The court found that the plaintiff met the criteria for a referral certificate. The court found that the plaintiff's financial circumstances met the threshold for eligibility, and that the proceedings had prospects of success. The court also found that there were no other relevant considerations that should be taken into account. The court exercised its discretion to grant the plaintiff's application for a referral certificate. The defendant's opposition to the application was dismissed.

The court ordered that a referral certificate be issued to the plaintiff, enabling him to seek pro bono assistance from a lawyer. The court also ordered that the defendant pay the plaintiff's costs of the application, to be paid within 28 days. The plaintiff was granted leave to appeal the decision on the costs order.

Orders