Harry v Inner West Council (No 2)

[2024] NSWSC 1026

Supreme Court

New South Wales

Medium Neutral Citation:

Harry v Inner West Council (No 2) [2024] NSWSC 1026

Hearing dates:

14 August 2024

Date of orders:

14 August 2024

Decision date:

14 August 2024

Jurisdiction:

Common Law

Before:

Basten AJ

Decision:

(1)   Terminate the referral under the pro bono advice and assistance scheme.

(2)   Refuse to make a further referral.

(3)   Refuse the plaintiff’s application to vacate the hearing.

Catchwords:

CIVIL PROCEDURE – application for pro bono assistance – whether referral for representation lapsed when not fulfilled by hearing date – referral terminated – whether further referral available – two prior referrals within preceding three years – further referral precluded absent special reasons – no special reasons established

CIVIL PROCEDURE – application to vacate hearing date – stay sought pending resolution of criminal appeal in District Court – whether offence committed immaterial to making of declaration the subject of the judicial review proceeding – unrepresented plaintiff seeking legal representation – no expectation of obtaining representation if hearing delayed

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Companion Animals Act 1998 (NSW), s 16

Cases Cited:

Harry v Inner West Council [2024] NSWSC 770

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
M Harker (Defendant)

Solicitors:
Lindsay Taylor Lawyers (Defendant)

File Number(s):

2023/00285324

JUDGMENT

1. BASTEN AJ: At the commencement of the hearing on Wednesday, 14 August 2024, the plaintiff, Tertia Harry, sought to reactivate an order referring her to the Legal Assistance Referral Scheme for legal assistance and representation in the present proceedings, and sought to vacate the hearing of the matter until representation had been obtained, or the plaintiff acquired funds to pay for private representation. Those orders were refused at the hearing, with reasons reserved. These are my reasons for refusing the orders.

Referral for pro bono assistance

2. An order for referral to a barrister or solicitor may be made under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). On 27 October 2023 the plaintiff obtained a referral from Ierace J for the purpose of advice and settling the terms of the summons. The amended summons was filed on 27 March 2024, at which time the matter was fixed for hearing on 14 August 2024.

3. On 12 June 2024, the plaintiff filed a further notice of motion seeking assistance “to advise her and appear for her on an application to stay the present proceedings” until her District Court appeal against her conviction with respect to the same incident was heard and determined. On 21 June 2024, Davies J made an order referring the plaintiff to the Registrar for referral to a barrister or solicitor “for the purpose of advising her and conducting the present proceedings to their conclusion”. ^[1] Only if assistance was not available for that purpose but would be available in seeking a stay, did his Honour then recommend that the referral be so confined: [14].

   1. Harry v Inner West Council [2024] NSWSC 770 at [13].

4. The rules expect that legal assistance will be arranged within 28 days after a referral and, if that is not the case, the Registrar may make an order terminating the referral: r 7.36(4A). It appears that the plaintiff’s application for assistance was unsuccessful, and she was advised of that by email from the Bar Association Legal Assistance Referral Scheme on Friday, 9 August 2024. She submitted that the orders were nevertheless on foot and the referral should be reactivated.

5. The order of Davies J was fully executed when the referral was made by the Registrar. A referral does not guarantee receipt of advice, nor representation. I do not understand that the officers of the Bar Association consider the referral to be still active, if for no other reason than that the date of the hearing has arrived. Nevertheless, to resolve any uncertainty, the Court terminated the referral pursuant to r 7.36(4A).

6. If the plaintiff were seeking a new referral, to give effect to the intention of Davies J’s orders, as she put it, that order should not be made. Importantly, for present purposes, r 7.36 contains a qualified limitation on a referral in subr (2A):

(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.

7. The plaintiff has had the benefit of not one but two previous orders in the last 10 months. I am not satisfied that there are special reasons which would justify a further referral, rather the contrary.

8. I accept that the plaintiff lacks the financial means to obtain representation on commercial terms, assuming that counsel could identify a reasonably arguable case. I also accept that regular legal aid schemes will probably not cover this case. Although she has stated that her dog-walking business was in jeopardy, there was no apparent basis for that conclusion. The effect of the order was to prevent her walking a menacing dog with more than one other dog, but it did not prevent her walking other dogs. Accordingly, it was not apparent that her means of livelihood were put at risk by the declaration, which, had it been the case, may possibly have provided a basis to seek legal aid.

9. Although Davies J noted that the first limited referral had resulted in an amended summons which “complied with the rules of court”, that was a generous assessment. The grounds in the amended summons contained material which was unlikely to have been included by a barrister with a rudimentary knowledge of judicial review principles. Although the formal parts undoubtedly reflected professional assistance, it is more likely than not that the plaintiff maintained control over the substance of the grounds.

10. The fact that assistance was not obtained following the referral by Davies J indicates that no greater success is likely if a further referral were now made.

11. Finally, this was not a matter in which it could be said that there was a reasonably arguable ground which risked being overlooked or inadequately presented absent legal representation. Rather, the proceedings gave the prima facie impression of being misconceived.

12. The application at the hearing may not have been entirely the plaintiff’s fault. It was only foreshadowed after she had received advice from a community legal centre. She claimed the advice treated the earlier referral as still on foot. While that is not so, taking all these matters into account, there are no special reasons why a further referral should be made: the prohibition in subr (2A) is therefore engaged.

Vacating the hearing

13. There remained the application to vacate the present hearing. Two reasons were put forward in support of that step. The first was to allow the plaintiff to obtain legal representation. Three factors militated against vacating the hearing on that basis. First, it is now two years from the making of the menacing dog declaration: the plaintiff has had ample opportunities to take steps to obtain legal representation but has not managed to do so. Secondly, her inability to obtain legal representation under the pro bona scheme provided by the profession destroys any realistic prospect that she would obtain legal representation if the hearing were now vacated. Indeed, were she to obtain pro bona counsel who managed to construct a reasonably arguable case, there would need to be further amendment to the summons. This would have required an extension of time within which to file a summons raising new grounds. It is unlikely that such an extension would be granted.

14. The second basis of the application was that the same incident which led to the menacing dog declaration had been the subject of a charge for an offence under s 16 of the Companion Animals Act 1998 (NSW). That charge had been resolved, apparently favourably to the plaintiff, in the Local Court; nevertheless, there has been an appeal to the District Court which is listed for hearing in December 2024. The plaintiff submitted that the hearing in this Court should be relisted to a date after the summary offence appeal had been determined in the District Court.

15. This ground was based upon a misapprehension that is dealt with more fully in the substantive judgment to be delivered contemporaneously with these reasons. The misapprehension is that a finding in the summary offence proceeding inconsistent with the factual basis upon which the menacing dog declaration was made would in some way vitiate the declaration. That is not so: the authorised officer who made the declaration was entitled to form her own view of the circumstances on the material before her. Her finding was not dependent upon a conviction for an offence, nor, indeed, would she be required to adopt any finding of fact made by the Local Court or the District Court in criminal proceedings. Accordingly, it was neither necessary nor appropriate to vacate the hearing to allow the criminal proceeding to be completed.

16. For these reasons, the Court refused the orders sought informally, without notice of motion, at the commencement of the hearing. No further orders are required.

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Endnote

Decision last updated: 16 August 2024