Derrick v St George Bank - [2015] NSWSC 880

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:
Applicant in person
D Zabow (Solicitor) (Defendant)
Solicitors:
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…

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: [2015] NSWSC 880
Decision Date: 29 June 2015

CaseChat Overview and Summary

In the case of Derrick v St George Bank, the applicant sought a referral to the court-appointed legal assistance scheme to obtain representation for an application for an interlocutory injunction. The applicant, Derrick, contended that the bank's conduct in relation to a mortgage transaction had caused significant financial loss and distress. Derrick argued that without legal representation, the court could not effectively address the issues of equity and fairness that arose in the mortgage dispute.

The central legal issue before the court was whether the applicant's circumstances warranted a referral under the legal assistance scheme. This involved considering the complexity of the case, the applicant's financial position, and the potential impact on the court's resources and the members of the Pro Bono panel. The court had to weigh the applicant's need for legal representation against the broader interests of justice, which included the equitable allocation of legal assistance resources.

The court concluded that while Derrick's situation was undoubtedly challenging, the potential burden on the Pro Bono panel outweighed the applicant's need for legal representation in this instance. The court found that the case did not meet the threshold for a referral under the legal assistance scheme, given the availability of alternative means for Derrick to obtain legal advice and representation. The application was therefore dismissed.

The court made no orders for costs.

Orders