Haragli v Tan

[2018] NSWSC 1792

Supreme Court

New South Wales

Medium Neutral Citation:	Haragli v Tan [2018] NSWSC 1792
Hearing dates:	On the papers
Date of orders:	21 November 2018
Decision date:	21 November 2018
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Order that Ms Haragli 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, representation generally in the conduct of the proceedings.
Catchwords:	CIVIL PROCEDURE – referral to a barrister or solicitor on the Pro Bono Panel for legal assistance
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Category:	Procedural and other rulings
Parties:	Ophelia Fatima Haragli (Plaintiff) Clifford Tan (Defendant)
Representation:	Solicitors: HWL Ebsworth Lawyers (Defendant)
File Number(s):	2017/187977
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Ophelia Haragli was a patient of Dr Clifford Tan between 2008 and 2011. She consulted him concerning the condition of her left breast. Ms Haragli commenced these proceedings by statement of claim filed on 23 June 2017. She alleges that Dr Tan failed to examine her appropriately or to diagnose in a timely manner that she was suffering from cancer or that her presenting condition justified or warranted referral for further investigation. In the events that occurred, Ms Haragli was later diagnosed with cancer and appropriately treated, including undergoing a bilateral mastectomy, chemotherapy and radiotherapy.

2. When the proceedings were commenced, Ms Haragli was represented by a firm of solicitors. She is no longer legally represented. This has led the solicitors for Dr Tan to seek orders for the dismissal of the proceedings for want of due despatch.

3. A report dated 1 April 2017 from Dr Dianne Chambers was filed and served with the pleadings. Dr Chambers has offered an opinion that is supportive of Ms Haragli on the question of whether or not Dr Tan followed standard guidelines for the investigation of a breast lump. Dr Chambers is of the opinion that the delay in diagnosis and referral has had a detrimental effect upon her prospects of survival.

4. Despite that opinion, Ms Haragli has neither been able to secure alternative legal representation on a contingency basis nor afford to retain a lawyer to represent her unconditionally. There may be particular reasons for the former, which have not been explored before me.

5. In these circumstances, Ms Haragli seeks a referral for pro bono legal assistance. That course is not opposed by Dr Tan.

6. UCPR 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.”

7. I am satisfied, having regard to the circumstances described above, including both the fact that Ms Haragli cannot afford to pay a lawyer to assist her, as well as the matters referred to in the report of Dr Chambers, that it is in the interests of justice to make an order referring Ms Haragli for pro bono legal assistance in accordance with this rule.

8. I therefore make the following orders:

1. Order that Ms Haragli 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, representation generally in the conduct of the proceedings.

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Decision last updated: 21 November 2018