Guha v Guha - [2021] NSWCA 245

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Guha v Guha [2021] NSWCA 245
Hearing dates: 11 October 2021
Date of orders: 11 October 2021
Decision date: 11 October 2021
Before: Basten JA
Decision:
Dismiss the appellant’s notice of motion of 20 September 2021.

Catchwords:
PRACTICE AND PROCEDURE – appeal – application for referral for pro bono assistance – second application in 3 year period – special reasons – attempt to rely on mediation agreement – advice from previous lawyers – mediation agreement not raised in court below – prospects of success

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), r 7.36; Pt 6, Div 9

Category: Procedural rulings
Parties: Samadrita Guha (Applicant)
Sreyashi Guha by her tutor Debadrita Guha (Respondent)
Representation:
Counsel:
Applicant self-represented
Solicitors:
King Legal (Respondent)

File Number(s): 2021/234807
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Equity

Citation:

[2021] NSWSC 757

Date of Decision:

28 June 2021

Before:

Parker J

File Number(s):

2019/358479

Judgment

BASTEN JA: On 28 June 2021 Parker J delivered a judgment in the Equity Division dealing with a claim to ownership of a property the subject of a intra-family dispute: Guha v Guha (No 2) [2021] NSWSC 757. On 16 August 2021 the defendant in those proceedings, Samadrita Guha, filed a notice of appeal in this Court.
On 20 September 2021 the appellant filed a notice of motion seeking a referral for legal assistance under Pt 7, Div 9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). That is the motion before the Court for determination.
The appellant also filed an affidavit executed on 15 September 2021. It will be appropriate to refer to certain matters by way of background to the proceedings, some of which may be gleaned from the affidavit, and some from the red appeal book, which includes the judgment of Parker J. Most of the matters were addressed by the appellant in oral submissions. I also note that the appellant advised that she was under a “mental health order”. However, in representing herself she was articulate and spoke in a clear manner. While there was no apparent need for the appointment of a tutor, the court should have a record of any order under the Mental Health Act2007 (NSW), presently in effect.
UCPR r 7.36 provides that the Court may make an order referring a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. The rule provides that 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: r 7.36(2). It will usually not be appropriate to make such a referral unless the court is satisfied that the litigant does not have the means to obtain and pay for the services of appropriate legal…

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 Guha v Guha

Details

AGLC: Guha v Guha [2021] NSWCA 245
Case: [2021] NSWCA 245
Decision Date: 11 October 2021

CaseChat Overview and Summary

The appeal concerned an application by the appellant, Mr Guha, for referral to a pro bono service for assistance with his appeal. This was the second such application made by Mr Guha within a three-year period. The appeal itself related to a dispute between Mr Guha and his brother, Mr Guha, concerning property. The application for pro bono assistance was heard by Basten JA in the Court of Appeal of New South Wales.

The primary legal issue before the Court was whether there were special reasons to grant a second application for pro bono assistance, given the appellant's previous unsuccessful application. The Court also considered whether an attempt by the appellant to rely on a mediation agreement, which had not been raised in the court below, constituted a relevant factor in assessing the prospects of success on appeal.

Basten JA noted that the appellant had not demonstrated any change in circumstances since his previous application for pro bono assistance. The mediation agreement, even if it had been properly before the Court, did not establish special reasons for granting the application. Furthermore, the Court found that the appellant had not shown any reasonable prospects of success on the substantive appeal, a critical factor in determining whether to grant pro bono assistance. The appellant's reliance on advice from previous lawyers was also insufficient to establish special reasons.

Consequently, the appellant’s notice of motion dated 20 September 2021 was dismissed.

Orders

Orders of the court

Dismiss the appellant’s notice of motion of 20 September 2021.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Guha v Guha [2021] NSWCA 245
Hearing dates:	11 October 2021
Date of orders:	11 October 2021
Decision date:	11 October 2021
Before:	Basten JA
Decision:	Dismiss the appellant’s notice of motion of 20 September 2021.
Catchwords:	PRACTICE AND PROCEDURE – appeal – application for referral for pro bono assistance – second application in 3 year period – special reasons – attempt to rely on mediation agreement – advice from previous lawyers – mediation agreement not raised in court below – prospects of success
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 7.36; Pt 6, Div 9
Category:	Procedural rulings
Parties:	Samadrita Guha (Applicant) Sreyashi Guha by her tutor Debadrita Guha (Respondent)
Representation:	Counsel: Applicant self-represented Solicitors: King Legal (Respondent)
File Number(s):	2021/234807
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2021] NSWSC 757 Date of Decision: 28 June 2021 Before: Parker J File Number(s): 2019/358479