Harry v Inner West Council

[2024] NSWSC 770

Supreme Court

New South Wales

Medium Neutral Citation:

Harry v Inner West Council [2024] NSWSC 770

Hearing dates:

21 June 2024

Date of orders:

21 June 2024

Decision date:

21 June 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Pursuant to rr 7.36 and 7.41 of the Uniform Civil Procedure Rules 2005 (NSW) the plaintiff is referred to the Registrar who is to refer the plaintiff to a barrister or a solicitor for the purpose of advising her and conducting the present proceedings to their conclusion.

(2) If for some reason pro bono assistance would only be available to assist the plaintiff in seeking a stay of the present proceedings rather than conducting the proceedings to an end, then the Court recommends the plaintiff’s referral be so confined.

Catchwords:

LEGAL AID – pro bono assistance – pro bono assistance previously provided for advice and the drafting of pleadings – further referral for continuing assistance – special reasons demonstrated – pro bono referral made

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) r 7.36

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Tertia Lavinia Carmen Harry (Plaintiff)
Inner West Council (Defendant)

Representation:

Counsel:
In person (Plaintiff – ex parte)

File Number(s):

2023/285324

Publication restriction:

Nil

EX TEMPORE JUDGMENT

1. These proceedings commenced on 5 September 2023 by the filing of a summons seeking administrative review of a decision of the Inner West Council, the defendant, which had declared one of the plaintiff's dogs to be a menacing dog pursuant to s 34 of the Companion Animals Act 1998 (NSW). A further summons was filed on 18 October 2023 seeking much the same relief.

2. The plaintiff, by notice of motion in October 2023, sought a referral for pro bono assistance in relation to the proceedings. On 27 October 2023, Ierace J ordered that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for the purpose of advice and settling the summons.

3. The plaintiff was ultimately provided with pro bono assistance and that resulted in an amended summons which, more particularly, complied with the rules of Court. That summons was filed on 27 March 2024. On 27 March 2024, the Registrar also fixed the proceedings for hearing on 14 August 2024.

4. In the meantime, it appears, although the evidence is somewhat sketchy about the matter, that the plaintiff has been prosecuted and convicted in the Local Court in relation to the same dog that is the subject of the present proceedings. The plaintiff informs me that she has lodged an appeal to the District Court from that conviction, and she is seeking to lead fresh evidence at the hearing of the appeal to counter what she alleges was false evidence that was given and resulted in her convictions.

5. The District Court will be hearing the plaintiff's application to rely on fresh evidence on 15 July 2024.

6. In those circumstances, the plaintiff, by notice of motion filed 12 June 2024, seeks a further referral for pro bono assistance to advise her and appear for her on an application to stay the present proceedings until the District Court appeal is heard and determined.

7. The plaintiff has provided as evidence in support of this application various banking and financial records which tend to show that her financial position is such that she does not have the means of engaging a lawyer herself. She is largely dependent only on a Centrelink pension and the balance shown in her bank accounts can be described as minimal.

8. Rule 7.36 of the Uniform Civil Procedural Rules 2005 (NSW) sets out the matters that a Court may take into account when considering whether to make such a referral. One of those matters is the means of the litigant; another, is the nature and complexity of the proceedings.

9. I am satisfied that the plaintiff demonstrates that her means are such that she is not able to retain lawyers from her own resources. I am also satisfied that what is sought to be done, both at the final hearing of the present proceedings and on any application for a stay of these proceedings, is sufficiently complex and beyond the ability of a lay person to adequately represent themselves.

10. Sub-rule (2A) provides that 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 three years, unless the Court is satisfied that there are special reasons to justify a further referral. One important reason for that sub-rule is that very high demands are made upon the pro bono schemes operated both by the Law Society and the Bar Association whether, on referral from the Registrar of this Court, or by reason of their direct engagement.

11. I am satisfied, nevertheless, given that Ierace J only made a referral for a very confined purpose, that special reasons are shown to justify making a further referral. I also consider that it is unsatisfactory now that referrals should be made for short and discrete reasons, rather than to assist the plaintiff to conclude the present proceedings. One particular reason for that is that the final hearing is relatively imminent, and even if it is vacated for some reason referable to the District Court appeal, a further date is likely to be appointed during the course of this year.

12. What the plaintiff is intending to demonstrate in the present proceedings is that the decision made by the council is an unreasonable one or was not properly made by the council. These matters involve difficult legal issues relating to administrative law relief. I consider that these are special reasons why a further referral should be made and that the referral should be to provide pro bono assistance for the plaintiff for the whole conduct of the present proceedings.

13. Accordingly, I make an order that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for the purpose of advising her and conducting the present proceedings to their conclusion.

14. If for some reason pro bono assistance would only be available to assist the plaintiff in seeking a stay of the present proceedings, rather than conducting the proceedings to an end, then I recommend that the plaintiff's referral be so confined.

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Decision last updated: 21 June 2024