He v Yeung

[2015] NSWCA 86

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

He v Yeung [2015] NSWCA 86

Hearing dates:

2 March 2015

Date of orders:

02 March 2015

Decision date:

02 March 2015

Before:

Emmett JA

Decision:

(1) The applicant on the motion filed on 18 February 2015 be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance consisting of representation generally in the future conduct of the proceedings.

(2) The notice of motion for summary dismissal filed by the respondent on 6 February 2015 be stood over to 13 April 2015.

(3) Any future listing of this matter be vacated pending the listing of the respondent’s notice of motion on 13 April 2015.

(4) No order as to the costs of today’s hearing or of the motion filed on 18 February 2015.

Catchwords:

PROCEDURE – request for referral to solicitor or barrister on the Pro Bono Panel – Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 7.37

Category:

Procedural and other rulings

Parties:

Qin He (Applicant)
Simon Yeung (Respondent)

Representation:

Counsel:
Self-represented (Applicant)
D Bowles (Respondent)

Solicitors:
Self-represented (Applicant)
Bowles Lawyers (Respondent)

File Number(s):

2014/296848

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity Division

Date of Decision:

18 September 2014

Before:

Young AJ

File Number(s):

2013/355288

Judgment

1. EMMETT JA: On 18 September 2014, Young AJ, for reasons that his Honour gave on that day, directed the entry of verdict and judgment for the plaintiff, Mr Simon Yeung, against the defendant, Ms Qin He. His Honour was satisfied that the sum of $248,279.45 was owing by Ms He to Mr Yeung. His Honour also ordered Ms Yeung to pay costs to date.

2. The proceedings before Young AJ were commenced by statement of claim filed on 25 November 2013. The statement of claim sought, in addition to judgment for debt, orders relating to a caveat lodged by Mr Yeung in respect of a property owned by Ms He. At present, I am not certain whether all of those matters have been resolved but that is not necessarily relevant for present purposes. On 10 October 2014, Ms He filed notice of intention to appeal from the orders made by Young AJ and filed a notice of appeal on 17 December 2014.

3. The grounds of appeal are quite voluminous and take the form of submissions rather than grounds of appeal. A notice of appearance was filed by Mr Yeung on 27 January 2015 and, on 6 February 2015, Mr Yeung filed a notice of motion seeking summary dismissal of the proceedings as incompetent, or alternatively that the notice of appeal be struck out. I assume that the incompetency is based on the fact that the proceedings at first instance may not have yet been finally resolved. That may relate to the caveat. At this stage, as I say, I am not certain.

4. On 18 February 2015, Ms He filed a notice of motion seeking relief that is not entirely clear from the document itself. It is probably clear, however, that Ms He is seeking an order under Pt 7 Div 9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), in particular under r 7.36(1), which provides that, 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 her notice of motion, Ms He also seeks an order that Mr Yeung’s notice of motion be adjourned until after she has received advice from the Pro Bono Panel (assuming that an order under r 7.36 is granted).

5. In the defence filed in the proceedings, Ms He appears to join issue with Mr Yeung in relation to transactions for a loan entered into in 2006. In his reasons for judgment, Young AJ refers to an agreement signed by the parties in August 2005. Not having had the opportunity of reading the transcript or considering the whole of the file at first instance, it is not clear to me at present as to whether or not there was confusion about the basis upon which Mr Yeung was suing Ms He. That appears to be one of the complaints in the notice of appeal. There may however be some perfectly clear explanation for the apparent lack of correspondence between the issues thrown up by the pleadings and the reasons of Young AJ.

6. Rule 7.36(2) provides that, for the purposes of considering making an order for referral, the court may take into account the means of the litigant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and any other matter that the court considers appropriate.

7. Ms He has filed a brief affidavit in support of her motion, making assertions which are substantially inadmissible if objection were taken as to her means. One course would be to adjourn the hearing of the motion to enable her to put on proper evidence. That would involve further delay and possibly further cost.

8. In the circumstances, it seems to me that the interests of justice may well be served by referring Ms He to a solicitor or barrister on the Pro Bono Panel. While a referral was formally objected to by Mr Yeung, his solicitor adopted a pragmatic and commercial approach to the matter. It is sometimes preferable, even in a case where there are no merits or prospects of success, for advice to be taken that may well bring matters to a head and avoid further litigation. In saying that, I have formed no view whatsoever as to the prospects of success of the appeal. In reading the reasons of Young AJ, there is nothing obvious in his Honour’s reasoning that would suggest that there is a ground of appeal; however, for the reasons I have already indicated, there may be some basis for suggesting that there was some confusion. That confusion may well be removed by the considering of the material by a member of the Pro Bono Panel.

9. The solicitor for Mr Yeung accepts, sensibly, that it would be desirable for advice to be received and, if need be, an amended notice of appeal formulated before proceeding with his application for summary dismissal.

10. Under r 7.37 of the UCPR, there are various kinds of assistance that may be the subject of referral. The referral might be limited to advice in relation to the proceedings or representation at a particular hearing, or the drafting or settling of documents to be filed that are used in the proceedings. Finally, the referral might relate to representation generally in the conduct of the proceedings or of part of the proceedings.

11. In the circumstances, I consider that the appropriate order is to refer Ms He to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for representation generally in the conduct of the proceedings. I propose to stand over Mr Yeung’s motion for summary dismissal to 13 April 2015 to enable advice to be given in the first instance, depending upon what the state of the file is at that stage. The judge who deals with the summary dismissal motion will at least have the advantage of legal assistance for Ms He.

12. I therefore propose to make the following orders:

1. The applicant on the motion filed on 18 February 2015 be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance consisting of representation generally in the future conduct of the proceedings.

2. The notice of motion for summary dismissal filed by the respondent on 6 February 2015 be stood over to 13 April 2015.

3. Any future listing of this matter be vacated pending the listing of the respondent’s notice of motion on 13 April 2015.

4. No order as to the costs of today’s hearing or of the motion filed on 18 February 2015.

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Decision last updated: 02 April 2015