Hastwell v Harmers Workplace Lawyers; Hastwell v Dr Parmegiani

[2022] NSWSC 1620

Supreme Court

New South Wales

Medium Neutral Citation:

Hastwell v Harmers Workplace Lawyers; Hastwell v Dr Parmegiani [2022] NSWSC 1620

Hearing dates:

22 November 2022

Date of orders:

22 November 2022

Decision date:

22 November 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

My orders in each matter are:

(1) The notice of motion of 4 November 2022 is dismissed.

(2) Confirm the listing before the Registrar for directions on 29 November 2022.

Catchwords:

CIVIL PROCEDURE – representation – application for referral for pro bono legal assistance

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Texts Cited:

Ritchie’s Uniform Civil Procedure NSW (LexisNexis Butterworths)

Category:

Procedural rulings

Parties:

Haydyn Hastwell (Plaintiff)
Harmers Workplace Lawyers (Defendant)
Dr Julian Parmegiani (Defendant)

Representation:

Counsel:
H. Hastwell (Plaintiff in person)
N. Polorotoff (Solicitor, for Harmers Workplace Lawyers)

Solicitors:
K & L Gates, Lawyers (Harmers Workplace Laywers)
No appearance (Dr Parmegiani)

File Number(s):

2022/190615
2022/190697

Judgment

1. This judgment relates to both matters listed before me today of Haydyn Hastwell v Harmers Workplace Lawyers, 2022/00190615, and Haydyn Hastwell v Dr Julian Parmegiani 2022/00180697. Mr Hastwell has, in each matter, filed a notice of motion on 4 November seeking, principally, an order for referral for pro bono assistance under Uniform Civil Procedure Rules 2005 (NSW), r 7.36. The form of the order that Mr Haydyn Hastwell seeks in each case is as follows:

“The Court refers the plaintiff to a barrister and solicitor under rule 7.36 Uniform Civil Procedure Rules 2005 for the purpose of legal assistance including advice and representation, and to:

draft an Amended Statement of Claim,

review the witnesses,

arrange supporting evidence including potential medico-legal report and loss and damage report;

complete discovery;

prepare for and attend mediation,

provide further possible assistance after mediation and bring the matter to resolution."

In each matter, he moves on his affidavit of 31 October 2022.

2. By reference to that affidavit filed in each case, I am satisfied that Mr Hastwell has made significant efforts to at least attempt to engage a solicitor to act on his behalf, and that in each case, he has been unsuccessful.

3. He has annexed to his affidavit the form of letter written to each solicitor approached, and I think it worthwhile setting out the gravamen of his approach to the lawyers concerned:

“Whilst I am legally trained and prepared to do this myself, I would now sincerely like representation to take the stress out of the whole affair.

The first matter is a solicitor's indemnity. I don't believe there is any issue with liability. The main issue is the calculation of damages. The insurer is LawCover who have been instructed to accept service.

The second matter is a medical expert indemnity claim. Meridian Lawyers have indicated they will reject the matter based on witness immunity. As the matter never reached hearing and the expert opinion was never filed nor served (and has clearly been procured in breach of duty), I think this is a medical-legal expert breach of duty claim which is outside witness immunity. From a legal standpoint this is potentially, a very good legal precedent if the matter was to be heard. Again, it's not clear how damages would be calculated.

...

I have been screwed around by lawyers already and don't want to go there again, so I really need someone to believe in this, as I do (and of course have no connection with the above)."

4. It is also the case that Mr Hastwell has attempted to obtain Legal Aid but has been informed that the Legal Aid Commission do not provide assistance in relation to professional negligence claims, and I accept his evidence in that respect.

5. Under rule 7.36, the Court's discretion to refer a litigant for pro bono assistance is expressed or conferred in the following terms:

“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."

In considering whether to make an order, the Court may have regard to the matters listed in paragraphs (a) to (d) of sub-rule (2). However, those matters are not decisive of the exercise of the Court's power. It has been held that mere satisfaction that a litigant cannot otherwise obtain legal assistance is not a sufficient reason to refer a litigant under the rule. It is relevant to consider not only the person's means but also the nature of the proceedings and the likely availability and utility of legal assistance: See Ritchie's Uniform Civil Procedure New South Wales paragraph 7.36.5 and the authorities there referred to.

6. Mr Hastwell has in oral argument today invoked each of the considerations in sub-rule (2)(a)-(c). He has submitted strongly that each of those considerations, so far as they may be relevant, has been engaged. He has submitted that the interests of justice require that he be provided with legal assistance of the type that he seeks.

7. Despite the wording of the rule, the Court does not in fact have a panel of barristers and solicitors willing to accept referral. Rather, it relies upon the co-operation and goodwill of the organised legal profession through the Bar Association Legal Assistance Scheme and the Law Society's Referral Scheme. These resources are not unlimited. Moreover, it is necessary that the lawyer approached be prepared to accept the referral.

8. From my point of view, an appropriate matter for the Court to consider in accordance with paragraph (d) of sub-rule (2) is the limited capacity of the profession to provide pro bono assistance. A further relevant consideration, in my judgment, is that the Court ought only sparingly call upon the profession to provide that assistance in cases where, even if complex, the proceedings can be seen to have merit, if only as a diamond in the rough. For instance, I am not of the view that it is a proper exercise of the power for the Court to refer a case without that glimmer of merit to a lawyer for advice as to prospects as that puts: (a) a significant burden on the lawyer; and (b), the litigant in a perhaps invidious position if the lawyer's advice is negative.

9. Now it seems clear to me, from the form in which Mr Hastwell seeks relief, and from my discussion with him today during the hearing of his applications, that what he is seeking is a lawyer who is prepared to undertake the work of acting for him throughout to bring the proceedings to a successful resolution. It is asking too much of the profession to take on such a burden as the carriage of the whole proceedings by an order under rule 7.36. Naturally, when professional persons are being asked to provide their services free of charge, they need to have the option, as the rules reflect, of refusing the referral and of being able to cease to act, albeit with leave, if their professional judgment requires that step. The pro bono referral scheme is not, as Mr Hastwell certainly accepts, a form of civil conscription, and it is not to be treated as such.

10. Mr Hastwell also pointed out that Harmers Workplace Lawyers have an extant notice of motion for summary dismissal of at least aspects if not the whole of the causes of action he propounds in his statement of claim. As an alternative position he has asked me to consider whether I would refer that part of the matter out for legal representation. I have given consideration to that alternative order.

11. At the end of the day, from my discussion with Mr Hastwell and from the quote from his correspondence I have set out above, I am of the view that he has a strong sense of the justice of his own case. I do not criticise him for that, but that state of mind means, in my assessment, that it is unlikely that he would be prepared to accept negative advice, if such were forthcoming, from a lawyer to whom the matter is referred. And indeed, when I asked that question during the hearing, his response was to the effect that he would think about it. He said that if the lawyer could show him case law to convince him that his case did not have good prospects, he would, as I say, consider that advice.

12. In all of the circumstances, I am not of the view that it is in the interests of the administration of justice for the matter to be referred for pro bono assistance.

13. So far as the other relief sought in the notices of motion which relate to detailed timetabling for case management purposes, those matters ought to abide the outcome of at least Harmers Workplace Lawyers notice of motion when it is listed for hearing.

14. My orders in each matter are:

1. The notice of motion of 4 November 2022 is dismissed.

2. Confirm the listing before the Registrar for directions on 29 November 2022.

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Decision last updated: 28 November 2022