Derrick v St George Bank
[2015] NSWSC 880
•29 June 2015
Supreme Court
New South Wales
Medium Neutral Citation: Derrick v St George Bank [2015] NSWSC 880 Hearing dates: 29 June 2015 Decision date: 29 June 2015 Jurisdiction: Common Law Before: Adamson J Decision: The plaintiff’s application for referral to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance is refused
Catchwords: PRACTICE AND PROCEDURE – application for referral for Court appointed legal assistance – interests of the administration of justice include potential burden on members of Pro Bono panel – application refused Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) r 7.35, r 7.36 Category: Principal judgment Parties: Oliver KJ Derrick (Plaintiff)
St George Bank (Defendant)Representation: Counsel:
Solicitors:
Applicant in person
D Zabow (Solicitor) (Defendant)
HWL Ebsworth Lawyers (Defendant)
File Number(s): 2015/163487
Judgment
Introduction
-
Mr Derrick applies, by notice of motion filed in court today, for a referral for legal assistance under Div 9, Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). He relies on an affidavit sworn today, 29 June 2015, in which he deposes that he seeks advice, representation and assistance with the preparation of legal documents to present his case. He deposes that the referral will allow him to obtain legal advice or to be represented by a lawyer at his hearing, or both. His principal claim for relief is the restitution of money which he alleges he deposited in an account in his name at St George Bank from about 1995.
-
The proceedings were commenced by summons filed on 2 June 2015. An affidavit sworn on 2 June 2015 was filed on the same date. The summons seeks the following relief:
1 Account information the bank holds outside the jurisdiction limit of 7 years as a matter of practice.
2 The Plaintiff seeks Account information from the defendant to refund a quantum amount of money approximately AU$40,000,000.00 or more.
Facts
-
The narrative which Mr Derrick has given me from the Bar table, part of which also appears in the affidavit of 2 June 2015, is that he was born in Melbourne in 1979. When he was about seven years of age, he was adopted. He moved with his adoptive parents to the United Kingdom. He was educated until he was about 14 years of age before leaving school and embarking on a business venture. The venture was apparently very remunerative and generated approximately $40 million. Mr Derrick alleges that from about 1995, he deposited that money into an account in his name at St George Bank.
-
Mr Zabow, who appears on behalf of St George Bank which is now a division of Westpac Banking Corporation, supports the application for referral for legal assistance. However, Mr Zabow contends that the proceedings are futile and merely replicate earlier proceedings in the Local Court. He relies on an offer made on 26 June 2015 whereby the Bank informed Mr Derrick that it had reviewed the summons and, by way of response, could provide a statutory declaration to Mr Derrick confirming: 1) that it does not have any records of accounts opened in Mr Derrick’s name between 1994 and 1996; 2) that the Bank’s records indicate that the earliest account in Mr Derrick’s name was opened in June 2007; and, 3) that the Bank has no other documents to produce in relation to the summons.
-
I note that similar proceedings were commenced by Mr Derrick in the Local Court earlier this year. On the basis of a letter from the Bank to Mr Derrick dated 5 March 2015 which set out the matters I have outlined above, those proceedings were dismissed.
Relevant Legislation
-
Division 9, Pt 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 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 circumstances contemplated by Div 9 of Pt 7.
-
If I am satisfied that it is in the interests of the administration of justice, UCPR 7.36 empowers me to refer the litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono panel.
Consideration
-
The matters which I may take into account in deciding whether to refer a litigant to the panel are set out in UCPR 7.36(2). I shall address each relevant matter in turn.
The means of the litigant: UCPR 7.36(2)(a)
-
The first relevant matter is the means of the litigant. Mr Derrick has informed me from the bar table that he is in receipt of ABSTUDY Centrelink benefits but otherwise has no money, apart from the money which he says he deposited with St George Bank which he seeks to regain, with which to obtain legal assistance.
Capacity to obtain legal assistance outside the scheme: UCPR 7.36(2)(b)
-
Mr Derrick also informs me from the bar table that an application he made to Legal Aid was refused on the basis that his claim is a commercial matter that exceeds the Legal Aid jurisdictional limit. I accept that he has no prospect of obtaining a grant of legal aid.
The nature and complexity of the proceedings: UCPR 7.36(2)(c)
-
Another relevant matter is the nature and complexity of the proceedings. On one view, the proceedings are straightforward: Mr Derrick contends that he deposited funds into a St George Bank account and the Bank contends that no account was opened in Mr Derrick’s name until June 2007. There is therefore a relatively simple factual question to be resolved. The proceedings nonetheless have the potential to be complex in that, if Mr Derrick is correct, there may well be certain account information in the possession of the bank relating to the alleged account. The claim that Mr Derrick may have to any such monies may well give rise to issues of complexity.
Whether previous referral has been made: UCPR 7.36(2A)
-
I cannot refer a litigant for assistance if the litigant has obtained assistance under a previous referral. There is no suggestion that that has occurred.
The interests of the administration of justice: UCPR 7.36(1)
-
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 a degree of complexity because legal advice and representation tends to promote the efficient and cost effective disposal of Court business. Furthermore, such a referral may well improve the prospects of a litigant obtaining good legal advice and therefore being able to assert his or her legal right in the most efficient and cogent way. On the other hand, the barristers and solicitors who have offered to provide their services for no remuneration ought not be exploited. For this reason, it is important that matters not be referred to the panel unless there is some real basis for considering that such a course is likely to be productive of benefit to the litigant or to the administration of justice. The interests of the administration of justice include the interests of the opposing party who is obliged to come to Court to meet any claim.
-
It may be that, were I to make a referral, Mr Derrick would be more likely to accept the result to which the available evidence points. However, the question whether Mr Derrick has had an account with the Bank has already been the subject of investigation by the Bank, which is prepared to have its officer swear a statutory declaration. The Bank has confirmed that it does not have any records. Mr Derrick has confirmed that he has no documents that evidence any deposits he has made with the Bank or any associated documents to corroborate his assertion of substantial (or indeed any) deposits in 1995.
Conclusion
-
In those circumstances, it does not seem to me to be in the interests of the administration of justice to impose upon a legal practitioner who, in the circumstances of this case, would appear to be able only to advise Mr Derrick on the regularity of the statutory declaration provided by the Bank.
-
I am not satisfied that it is in the interests of the administration of justice to refer Mr Derrick for legal assistance. Accordingly the application is refused.
Orders:
-
I make the following order:
The plaintiff’s application for referral to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance is refused.
**********
Decision last updated: 06 July 2015
0
1