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

(1) The Court may, if it is in the interests of the administration of justice, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2) For the purposes of subrule (1), the Court may take into account:
(a) the means of the litigant;
(b) the capacity of the litigant to obtain legal assistance outside the scheme;
(c) the nature and complexity of the proceedings; and
(d) any other matter that the Court considers appropriate.

(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.

(4) A referral to the registrar is effected by the issue of a Referral Certificate in accordance with the prescribed form in relation to the litigant.

(5) If a Referral Certificate has been issued, the registrar must attempt to arrange for the legal assistance mentioned in the certificate to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.

(6) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.

(7) A referral to a barrister shall not prevent a referral also being made to a solicitor and a referral to a solicitor shall not prevent a referral also being made to a barrister.

5 Kind of assistance

A referral may be made for the following kinds of assistance:
(a) advice in relation to the proceedings;
(b) representation on directions hearing, interlocutory or final hearing, arbitration or mediation;
(c) drafting or settling of documents to be filed or used in the proceedings;
(d) representation generally in the conduct of the proceedings or of part of the proceedings.

4 A lawyer on the pro-bono panel who accepts a referral incurs significant obligations. The rules provide:

6 Provision of assistance by barrister or solicitor

Subject to rule 7, if a barrister or solicitor agrees to accept a referral, he or she must provide assistance to the litigant in accordance with the referral.

7 Cessation of assistance

(1) A barrister or solicitor who has agreed to accept a referral may cease to provide legal assistance to the litigant only:
(a) in the circumstances set out in any practice rules governing professional conduct that apply to the barrister or solicitor;
(b) with the written agreement of the litigant; or
(c) with the leave of the registrar.

…

5 Although the process of granting a certificate is administrative rather than judicial, before granting a referral certificate the Court must be satisfied that it is in the interests of the administration of justice to do so. Some relevant considerations are listed in r 66A.4(2).

6 As to means, there is no evidence of Ms Dafaalla’s financial position, but I am prepared to assume, for present purposes, that she would not be able to afford private representation.

7 As to capacity to obtain assistance outside the scheme, the Legal Aid Commission will provide assistance only if she can demonstrate “special disadvantage”, which requires proof of a substantial psychiatric condition, developmental disability, intellectual impairment or physical disability, such as creates substantial difficulty in dealing with the legal system, and I am prepared to assume that she would not be able to satisfy that requirement. Ms Dafaalla has provided a list of ten law firms who she says have declined to act for her, for reasons varying from that they do not accept instructions in medical negligence matters, to accusing her of wrongly blaming the doctors. But one of them merely made the very reasonable request that she obtain a full report from the Egyptian doctor to whom I shall refer below, and another asked for a report by another doctor (well-known as a plaintiff’s doctor in medical negligence cases), of which she said “does not want to investigate this issue seriously – very strange”.

8 The matter is potentially complex, being a case of medical malpractice.

9 Those are not the only considerations. The success of the scheme is dependent upon the support of the profession, and the obligations which are undertaken by a lawyer on the pro-bono panel import a concomitant obligation on the Court to exercise discretion in the grant of referral certificates. While, by r 66A.1(4), a referral does not indicate that the Court has formed an opinion on the merits of a litigant’s case, the Court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit. That is not to say that a referral should never be made in a case apparently lacking merit: for example, it may well be appropriate to grant a certificate, for the limited purpose of obtaining advice, in a case without legal merit, where there is some prospect that the advice will assist the litigant to understand the defects in the case, so that unnecessary litigation may be avoided.

10 I have therefore examined the material so far filed, and sought to understand the plaintiff’s case. The statement of claim in its present form does not facilitate this. But so far as I can tell, Ms Dafaalla’s case is that all three hospitals failed to diagnose her condition, and the Concord Hospital performed a urethral dilatation without her consent. It must be said that at first sight it appears improbable that three different hospitals over a period of two years failed to diagnose and treat a urinary tract infection, despite several urine tests and operative examinations. And it appears that on at least some occasions Ms Dafaalla has been a non-compliant patient, on one occasion discharging herself from hospital (with a cannula still in situ) and on others refusing recommended tests. Some of her complaints appear to involve misconceptions or misunderstandings. However, there are two matters which emerge from the material that appear to me of possible significance.

11 First, it is clear from medical records of the three defendant hospitals that tests performed on 5 September 2004, and further tests at Concord Hospital on 1 February 2005 and 8 April 2005, and operative examinations performed at Concord Hospital on 11 April 2005, Prince of Wales Hospital on 23 May 2006, and Sydney Private Hospital on 28 July 2006, did not identify any urinary tract infection, nor any other abnormality to explain her symptoms. However, she subsequently travelled to Egypt to see a Dr Shaffik, urologist, whose report dated 28 September 2006 gives a diagnosis of “chronic cystitis”, and who on urinalysis apparently grew a culture of E. Coli., sensitive to specified antibiotics. One perfectly good explanation for this would be that the infection occurred after July 2006; but given Ms Dafaalla’s history of symptoms it at least raises the possibility of a missed diagnosis, which warrants some further investigation.

12 Secondly, one of Ms Dafaalla’s complaints is the operative examination – cystoscopy with urethral dilatation – performed at Concord Hospital on 11 April 2005. As I understand her complaint, it is that she was misled about various aspects of this operation, which she believes has caused some of her subsequent problems, and that her consent to the operation was forged. While it is very likely that she has some misunderstandings of the circumstances surrounding this operation, examination of the consent form reveals a signature, purportedly hers, which bears no resemblance to her signature on the various documents in the file on which her signature appears. This too raises a matter which though it may be capable of easy explanation, at least warrants further investigation.

13 In my view, a referral for the purposes of advice would facilitate the investigation of those issues, and enable a practitioner to form a view as to whether Ms Dafaalla has an arguable case. If the practitioner forms the view that there is an arguable case, an amended statement of claim will be required.

14 I will therefore grant Ms Dafaalla a certificate, for the limited purposes at this stage of obtaining advice, and if but only if that advice is to the effect that she has an arguable case, drafting and settling an amended statement of claim. At that stage, the question of an extension of the certificate for other purposes may be considered.

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