Elishaa v Bazina

[2021] NSWSC 879

Supreme Court

New South Wales

Medium Neutral Citation:

Elishaa v Bazina [2021] NSWSC 879

Hearing dates:

21 July 2021

Date of orders:

21 July 2021

Decision date:

21 July 2021

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The Court orders:

(1) Mr Elishaa be referred to the Registrar for referral to a solicitor on the pro bono panel for legal assistance by a solicitor for the purposes of advice, pleadings and the conduct of proceedings on behalf of Mr Elishaa.

(2) That a copy of these reasons be given forthwith to the Registrar and that the Registrar be asked to exercise her role in relation to the referral to a pro bono panel as contemplated by r 7.36 of the Uniform Civil Procedure Rules.

Catchwords:

CIVIL PROCEDURE – application for pro bono assistance – application granted

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Principal judgment

Parties:

Samin Elishaa (Plaintiff)
Renata Bazina (Defendant)

Representation:

Solicitors:
McCabe Curwood (Defendant)

File Number(s):

2021/33568

ex tempore Judgment

1. HIS HONOUR: This morning there was listed before the Common Law Registrar proceedings initiated by Sami Elishaa by way of an amended statement of claim filed 9 February 2021. The amended statement of claim was drafted by Mr Elishaa, who is self-represented. The defendant in those proceedings is Renata Bazina, who is represented by Mr Andrew Bridges-Webb, special counsel in the firm of McCabe Curwood.

2. The amended statement of claim is plainly a document drafted by a self-represented person but nonetheless is sufficient to disclose that the action that Mr Elishaa brings, arises out of surgery that he received, after which he states that he lost his vision. It appears to be common ground, at least for the purposes of this referral from the Registrar, that Mr Elishaa is legally blind.

3. I have spent some time this morning explaining to Mr Elishaa the nature of and circumstances under which pro bono assistance may be provided to a litigant. It is tolerably clear that, at the end of that explanation, he sought pro bono legal assistance, although no such application was made during the proceedings before the Registrar. I interpolate that the Registrar saw that the circumstances of the proceedings were such that, notwithstanding the absence of a formal application at that time, it was appropriate to refer this matter to the Duty List. I consider that was an appropriate step for the Registrar to take in all the circumstances.

4. The provision of pro bono legal assistance is governed by the provisions of r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). The provisions of r 7.36(2) identify matters that the Court may take into account in giving consideration to whether the Court should, by order, refer a litigant to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance. However, ultimately the determination the Court as to any such referral must be governed by considerations as to whether or not such a referral should occur in the interests of justice.

5. Having regard to the circumstances of this matter, I consider that there is an overwhelming case for the referral of Mr Elishaa to the Registrar for referral to a solicitor on the pro bono panel for legal assistance. My reasons for that conclusion may be shortly stated as follows:

1. Mr Elishaa has sought legal assistance on two separate occasions but has been unsuccessful in obtaining that assistance essentially because of his limited financial circumstances.

2. On what he has indicated to the Court, there would appear to be no basis financially for him to obtain legal assistance outside of the scheme to which I have referred in the future.

3. So far as the cause of action has been disclosed to the Court, it may be expected that the proceedings have the potential to be complex in nature, particularly if there are medicolegal issues attending upon it. I note, in that respect, that it is asserted in the pleadings, that, “The surgeon did not explain or told me that I will lose my vision because of the operation or without operation”.

4. Mr Elishaa is a vulnerable person because of his legal blindness. That condition will substantially impede his position to represent himself without legal assistance.

5. Having had an exchange with Mr Elishaa this morning, and without any criticism of him, it does appear to me that, as a self-represented person, he will face severe difficulties in grappling with any stage of the legal process if he is to remain unrepresented

6. It is not clear to me at the moment what the merits of the application are and certainly I have received no submissions in that respect. However, I do consider that there is at least sufficiently stated a cause of action to warrant the referral which will, at least, provide for better identification of legal issues.

6. There remains a question as to what should be the precise nature of the legal assistance which may be provided under the scheme.

7. Having regard to the very reasons that I have given for the referral and submissions by Mr Bridges-Webb, it appears to me that the referral should be comprehensive and, thus, for the purposes of advice, pleadings and the conduct of proceedings on behalf of Mr Elishaa by a solicitor on the pro bono panel.

8. In the result, I am satisfied that it is in the interests of the administration of justice that the Court order that there be a referral of Mr Elishaa to the Registrar for referral to a solicitor on the pro bono panel for legal assistance by a solicitor.

9. I direct that a copy of these reasons be given forthwith to the Registrar and that the Registrar be asked to exercise her role in relation to the referral to a pro bono panel as contemplated by r 7.36 of the Uniform Civil Procedure Rules.

10. Those are the orders of the Court.

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Decision last updated: 21 July 2021