De Varda v Austin - [2019] NSWCA 133

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: De Varda v Austin [2019] NSWCA 133
Hearing dates: 27 May 2019
Date of orders: 27 May 2019
Decision date: 27 May 2019
Before: White JA
Decision:
(1)   Order that the applicants be referred to the registrar for referral to a barrister on the pro bono panel for legal assistance, such legal assistance to be by way of:
(a)   provision of advice in relation to the applicants' notice of appeal, the respondents' notice of contention and in respect of any application for leave to appeal from order 1 made by Pembroke J on 8 June 2018 if the applicants succeed on their notice of appeal;
(b)   preparation of written submissions for the appeal and the doing of such other things as may be required to comply with the directions concerning the second to fourth respondent's preparation of the Orange Book; and
(c)   appearing for the appellants on the hearing of the appeal.

Catchwords: CIVIL PROCEDURE – Application under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) for referral to Pro Bono Panel for legal assistance for appeal – Application previously dismissed – Where leave to appeal against part of first instance decision subsequently granted – Whether grant of leave materially alters circumstances such as to warrant making of referral
Legislation Cited:
Supreme Court Act 1970 (NSW), s 75A
Vexatious Proceedings Act 2008 (NSW), ss 8, 13
Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Cases Cited: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Varda v Austin [2018] NSWCA 263
De Varda v Austin [2019] NSWCA 42
Category: Procedural and other rulings
Parties: Joseph de Varda (Applicant)
Samuel Tov-Lev (Second Applicant)
David Austin (First Respondent)
Eddy Neumann (Second Respondent)
Murray Selig (Third Respondent)
John Lowbeer (Fourth Respondent)
Representation:
Counsel:
Self-represented (First Applicant)
Self-represented (Second Applicant)
M Cobb-Clark (Respondents)
Solicitors:
Gilchrist Connell (First Respondent)
Eddy Neumann Lawyers (Second to Fourth Respondents)

File Number(s): 2018/197243

Judgment

HIS HONOUR: The applicants seek an order under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) that they be referred to the Registrar for a referral to obtain pro bono legal assistance. They also seek orders that the proceedings be stayed until such representation is obtained.
On 8 June 2018 Pembroke J, sitting in the Equity Division, ordered that proceedings brought by the applicants in 2018 be dismissed. That was an order for summary dismissal of proceedings that had been commenced by the applicants by a statement of claim filed on 7 May 2018 in proceedings 2018/143151.
Pembroke J also ordered:

“(2) I order pursuant to s 8(7)(a) of the Vexatious Proceedings Act that all proceedings in New South Wales instituted by Joseph de Varda and Rabbi Samuel Tov-Lev relating to or arising out of their complaints concerning the closure and sale of the Holocaust Synagogue at Strathfield be…

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.

Continue reading De Varda v Austin

Details

AGLC: De Varda v Austin [2019] NSWCA 133
Case: [2019] NSWCA 133
Decision Date: 27 May 2019

CaseChat Overview and Summary

In *De Varda v Austin*, the applicants sought a referral to the Pro Bono Panel for legal assistance in relation to an appeal. This application had been previously dismissed. However, leave to appeal against a part of the first instance decision was subsequently granted, leading to the current application to determine whether this development materially altered the circumstances to warrant a referral.

The central legal issue before the court was whether the grant of leave to appeal constituted a material change in circumstances that justified reconsidering the earlier dismissal of the application for pro bono assistance. The court was required to assess if the new procedural development created a need for legal representation that was not present at the time of the initial refusal.

The court reasoned that the grant of leave to appeal fundamentally altered the applicants' position, creating a genuine need for legal representation in the appeal proceedings. This change in circumstances warranted a reconsideration of the initial refusal. The court ordered that the applicants be referred to the registrar for referral to a barrister on the pro bono panel. This assistance was to encompass advice on the notice of appeal and notice of contention, preparation of written submissions for the appeal, and appearance for the appellants at the appeal hearing.

Orders

Orders of the court

(1) Order that the applicants be referred to the registrar for referral to a barrister on the pro bono panel for legal assistance, such legal assistance to be by way of:

(a) provision of advice in relation to the applicants' notice of appeal, the respondents' notice of contention and in respect of any application for leave to appeal from order 1 made by Pembroke J on 8 June 2018 if the applicants succeed on their notice of appeal;

(b) preparation of written submissions for the appeal and the doing of such other things as may be required to comply with the directions concerning the second to fourth respondent's preparation of the Orange Book; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	De Varda v Austin [2019] NSWCA 133
Hearing dates:	27 May 2019
Date of orders:	27 May 2019
Decision date:	27 May 2019
Before:	White JA
Decision:	(1) Order that the applicants be referred to the registrar for referral to a barrister on the pro bono panel for legal assistance, such legal assistance to be by way of: (a) provision of advice in relation to the applicants' notice of appeal, the respondents' notice of contention and in respect of any application for leave to appeal from order 1 made by Pembroke J on 8 June 2018 if the applicants succeed on their notice of appeal; (b) preparation of written submissions for the appeal and the doing of such other things as may be required to comply with the directions concerning the second to fourth respondent's preparation of the Orange Book; and (c) appearing for the appellants on the hearing of the appeal.
Catchwords:	CIVIL PROCEDURE – Application under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) for referral to Pro Bono Panel for legal assistance for appeal – Application previously dismissed – Where leave to appeal against part of first instance decision subsequently granted – Whether grant of leave materially alters circumstances such as to warrant making of referral
Legislation Cited:	Supreme Court Act 1970 (NSW), s 75A Vexatious Proceedings Act 2008 (NSW), ss 8, 13 Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Cases Cited:	Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 De Varda v Austin [2018] NSWCA 263 De Varda v Austin [2019] NSWCA 42
Category:	Procedural and other rulings
Parties:	Joseph de Varda (Applicant) Samuel Tov-Lev (Second Applicant) David Austin (First Respondent) Eddy Neumann (Second Respondent) Murray Selig (Third Respondent) John Lowbeer (Fourth Respondent)
Representation:	Counsel: Self-represented (First Applicant) Self-represented (Second Applicant) M Cobb-Clark (Respondents) Solicitors: Gilchrist Connell (First Respondent) Eddy Neumann Lawyers (Second to Fourth Respondents)
File Number(s):	2018/197243