Foundas v Arambatzis (No 2) - [2023] NSWSC 1329

Supreme Court

New South Wales

Medium Neutral Citation: Foundas v Arambatzis (No 2) [2023] NSWSC 1329
Hearing dates: 26 October 2023
Date of orders: 26 October 2023
Decision date: 26 October 2023
Jurisdiction: Equity - Real Property List
Before: Rees J
Decision:
Dismiss application for referral, with costs.

Catchwords:
CIVIL PROCEDURE — referral for pro bono assistance — applicant previously referred for pro bono assistance — principles at [4]-[10] — no evidence as to why earlier referral came to an end — application brought six months later and shortly before trial — no ‘special reasons’ justifying further referral.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) rr 7.36, 7.38, 7.39, 7.40

Cases Cited:
Arambatzis v Foundas (No 2) [2021] NSWCA 125
Arambatzis v Foundas (No 3) [2021] NSWCA 189
Arambatzis v Foundas [2021] NSWCA 728
Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602
Maxwell-Smith v S & Hall Pty Ltd [2013] NSWCA 397
Serobian v Commonwealth Bank of Australia [2010] NSWSC 1165

Category: Procedural rulings
Parties: Ms C Foundas (Plaintiff)
Peter Arambatzis (First Defendant)
Sean Wengel (Second Defendant)
Robert Whitton (Third Defendant)
Representation:
Counsel:
Ms T Harris-Roxas (First Defendant)
Solicitors:
Cassiani Foundas (Plaintiff) (In person)
Cutri & Associates (First Defendant)
William Robert Lawyers (Second and Third Defendants)

File Number(s): 2021/297960

EX TEMPORE JUDGMENT

HER HONOUR: This is an application by the plaintiff, Cassiani Foundas, for referral to a barrister or solicitor under rule 7.36 of the Uniform Civil Procedure Rules 2005 (NSW). According to her affidavit, Ms Foundas seeks a referral on the grounds of having a lack of understanding and expertise which would allow the trial to flow in good stead. Ms Foundas said she has no experience, is not privileged and is in hardship on a pension. Further, “I understand I have had some help in the past and very grateful for that but if I never had such help I would be prejudiced and subjected to unfair and barbaric bias. I have a right to fight and save my home.”
The first defendant, Peter Arambatzis, neither consents nor opposes the application but relies on an affidavit of his solicitor, Frank Cutri, detailing of previous referrals. The second and third defendants, Sean Wengel and Robert Whitton, and neither consent nor oppose and called no evidence.

Principles

Rule 7.36 of the Uniform Civil Procedure Rules 2005 relevantly provides: (emphasis added)

(1)    If satisfied that it is in the interests of the administration of justice, the court may, by order, 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, and
(b)     the capacity of the litigant to obtain legal assistance outside the scheme, and
(c)     the nature and complexity of the proceedings, and
(d)     any other matter that the court considers appropriate.
(2A)    The court may not refer a litigant for assistance under this rule if the litigant…

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 Foundas v Arambatzis (No 2)

Details

AGLC: Foundas v Arambatzis (No 2) [2023] NSWSC 1329
Case: [2023] NSWSC 1329
Decision Date: 26 October 2023

CaseChat Overview and Summary

The case of Foundas v Arambatzis (No 2) involved the applicant, Foundas, who sought a referral for pro bono assistance from the respondent, Arambatzis. The matter was before the court on the basis of the applicant's previous referral for pro bono assistance, which had ended for unknown reasons. The applicant's application for further assistance was brought six months after the previous referral ended, and just before the scheduled trial. The court was required to determine whether the applicant had established special reasons justifying a further referral for pro bono assistance.

The primary legal issue before the court was whether there were special reasons to justify the referral for pro bono assistance in light of the previous referral's conclusion and the timing of the current application. The court noted that the applicant had not provided any evidence as to why the earlier referral had come to an end. The applicant's application was brought shortly before the trial, which the court considered to be an insufficient justification for a further referral. The court also noted that the applicant had not demonstrated any special circumstances that warranted a referral for pro bono assistance.

The court concluded that there were no special reasons justifying a further referral for pro bono assistance. The applicant had not provided any evidence as to why the earlier referral had ended, and the application was brought just before the trial, which the court considered insufficient justification. The court emphasised the principles at [4]-[10], which require special reasons to justify a referral for pro bono assistance. The court found that the applicant had not demonstrated any special circumstances that warranted a referral for pro bono assistance.

The court dismissed the application for a referral for pro bono assistance. The court noted that the matter was proceeding to trial and that the applicant would have to proceed with the available resources. The court emphasised the importance of providing reasons for the dismissal of an application for pro bono assistance, particularly in cases where the applicant has previously been referred for such assistance.

Orders