Greenfield v John Patrick Miskell trading as J.P. Miskell and Associates

[2019] NSWSC 1200

Supreme Court

New South Wales

Medium Neutral Citation:	Greenfield v John Patrick Miskell trading as J.P. Miskell & Associates [2019] NSWSC 1200
Hearing dates:	10 September 2019/On the papers
Date of orders:	10 September 2019
Decision date:	10 September 2019
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	The plaintiff be referred to the Registrar for referral to a solicitor or barrister on the pro bono panel for legal assistance including advice in relation to her prospects of success in the proceedings and subject to the terms of any such advice, assistance with drafting an amended statement of claim, if appropriate, and assistance with representation
Catchwords:	CIVIL PROCEDURE – referral to Pro Bono Panel for legal assistance
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Category:	Procedural and other rulings
Parties:	Susana Greenfield (Plaintiff) John Patrick Miskell trading as J.P. Miskell & Associates (Defendant)
Representation:	Solicitors: Self-represented (Plaintiff) Gilchrist Connell (Defendant)
File Number(s):	2019/127647
Publication restriction:	Nil

Judgment

1. Susana Greenfield commenced proceedings in the Common Law division of this Court by statement of claim signed 7 March 2019.

2. Mrs Greenfield in her statement of claim asserts that the defendant is a solicitor who had formerly been the Principal solicitor at DJ Fischer and Associates. The relevance of this is that in August 2018, 21 years after the death of her much beloved husband Peter, Mrs Greenfield found a letter from DJ Fisher and Associates dated 19 August 1997 that led her to believe that there may well be the proceeds of a workers compensation claim that was available to her as beneficiary of his estate.

3. Apparently Peter had died intestate. Mrs Greenfield pursued letters of administration that were granted in February 2019 which lists as property owned by him proceeds of the workers compensation case noted to be of estimated or known value of “79,303.86 (plus interest)”.

4. The defendant is represented by Gilchrist Connell. That firm have made efforts to investigate the claims in the statement of claim and on 1 August 2019 forwarded a letter to Mrs Greenfield setting out the results of their inquiries for her assistance, and drawing her attention, in a courteous and appropriate manner, to the relevant rules of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and requesting some particulars.

5. At the Registrar’s encouragement the plaintiff filed a notice of motion to seek pro bono assistance.

6. In her lengthy affidavit, it is evident from correspondence within it that Mrs Greenfield needs focused assistance from a legal practitioner to explain the complexities of the claim that she seeks to make, and to her assist her with that process. The affidavit indicates that Mrs Greenfield has been unable to obtain help from any community legal centres or law firms.

7. Mrs Greenfield also stated that she is a nurse, but has suffered a work related shoulder and back injury and so is unable to pay for lawyers and is on part workers compensation and a temporary sickness benefit allowance.

8. The course proposed by Mrs Greenfield to obtain such assistance is not opposed by the defendant.

9. UCPR r 7.36 provides as follows:

7.36   Referral to a barrister or solicitor

(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 has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.

(3)  The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.

(4)  If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.

(4A)  If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant’s referral, the registrar may make an order terminating the litigant’s referral.

(5)  The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.

(6)  A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

10. I am satisfied, having regard to the circumstances described above, including both the fact that Mrs Greenfield cannot afford to pay a lawyer to assist her as well as the complexity of the litigation she seeks to bring, that it is in the interests of justice to make an order referring Mrs Greenfield for pro bono legal assistance in accordance with this rule.

11. I therefore make the following order:

1. The plaintiff be referred to the Registrar for referral to a solicitor or barrister on the pro bono panel for legal assistance including advice in relation to her prospects of success in the proceedings and subject to the terms of any such advice, assistance with drafting an amended statement of claim, if appropriate, and assistance with representation.

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