Klewer v Sydney Children's Hospital Specialty Network
[2013] NSWSC 1126
•16 August 2013
Supreme Court
New South Wales
Medium Neutral Citation: Klewer v Sydney Children's Hospital Specialty Network [2013] NSWSC 1126 Hearing dates: 16 August 2013 Decision date: 16 August 2013 Before: Adamson J Decision: (1) Order that Mr Robert Klewer, by his tutor Mr Ryan Klewer, be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
(2) Stand the matter over to the Registrar for further directions to 13 September 2013 at 9.00 am.
Catchwords: PRACTICE AND PROCEDURE- application for pro bono legal assistance Legislation Cited: - Uniform Civil Procedure Rules, r 7.36, r 7.36(2), r 7.36(2)(a), r 7.36(2)(b), r 7.36(2)(c), r 7.37 Category: Interlocutory applications Parties: Robert Carl Klewer (Plaintiff)
Sydney Children's Hospital Specialty Network (Defendant)Representation: Counsel: RC Klewer (tutor to Plaintiff) (Plaintiff)
SA Wallace (solicitor) (Defendant)
Solicitors:
Curwoods Legal Services (Defendant)
File Number(s): 2009/297327 Publication restriction: Nil
Judgment
The application for referral for Pro Bono assistance
The plaintiff, Robert Carl Klewer, by his tutor, Ryan Conrad Klewer, seeks an order by notice of motion filed on 31 July 2013 for a referral to a Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to UCPR 7.36 and 7.37. The basis on which the application is made is that the solicitor who has formerly acted for the plaintiff has recently ceased to act and Ryan Klewer does not have sufficient means to engage further legal advisers.
The principal proceedings
The plaintiff claims damages against the Sydney Children's Hospital Specialty Network for alleged negligence for treatment administered to him in 1992 when he was admitted, at the age of four, to the Coffs Harbour District Hospital with a diagnosis of left thalamic tumour and a right upper limb paralysis. The plaintiff underwent various operative procedures in hospital, including a left pterional craniotomy and subtotal excision of the glioma. He also underwent a right frontal craniotomy with resection, although the tumour was not removed. He had further surgery for the removal of an infected bone flap.
Mr Klewer suffers from foot drop, a right-sided deficiency which causes him to have very limited mobility and very poor vision on the right side. He also has some mental impairment. Although he can hold a conversation, and is basically articulate, his capacity to understand more sophisticated concepts is diminished, which is why Robert Carl Klewer, his brother, has been appointed as his tutor. Whether these matters arise from his underlying condition or from any aggravation or exacerbation for which the defendant is responsible is one of the matters to be determined in the proceedings.
Whether the matter should be referred
The power conferred on me by UCPR 7.36 to refer the matter to the Registrar for a referral to a barrister or solicitor for legal assistance arises if I am satisfied that it is in the interests of the administration of justice to do so.
The matters which I may take into account are listed in UCPR 7.36(2). I propose to address these in turn.
The first relevant matter is the means of the litigant: UCPR 7.36(2)(a). Ryan Klewer is currently in receipt of disability benefits from Centrelink. His brother, Robert, who is also his tutor, cares for him during the week. He lives with his mother. His income is self-evidently insufficient to pay for legal services.
The second relevant matter is the capacity of the litigant to obtain legal assistance outside the scheme: UCPR 7.35(2)(b). I note that it is not uncommon for proceedings such as medical negligence proceedings to be funded on a speculative basis by certain firms of solicitors and barristers who are prepared to take that work on the basis that they will be paid only if the plaintiff is successful and awarded damages. The plaintiff's tutor has endeavoured to obtain legal assistance by contacting the New South Wales Law Society. Assistance has not been forthcoming. I note that medical negligence claims tend to be somewhat more complicated than other cases which are commonly taken on a speculative basis and this may, at least in part, explain why the tutor's endeavours to obtain legal representation have been unsuccessful.
The third relevant matter is the nature and complexity of the proceedings: UCPR 7.36(2)(c). I do not have sufficient material to determine with any degree of precision the nature and complexity of the proceedings. Matters concerning the negligence of hospitals often give rise to difficult questions concerning the nature of the duty, the alleged breach as well as difficult issues of causation. This case would appear, at least from the limited material on the file, to raise such issues.
The other matter which I consider ought be taken into account in the exercise of my discretion is that the defendant, who is represented by Ms Wallace today, is ready to take a hearing date. Several procedural steps have already been taken and, as far as the defendant is concerned, the evidence has been finalised and served. This would mean that whichever legal practitioner is the subject of the referral may well be able to bring the matter to final hearing relatively quickly and will have the benefit of the preparation and the investigation that has already been undertaken by the solicitors who were formerly on the record for the plaintiff.
There is no evidence that the litigant has obtained assistance under any previous referral at any time and, indeed, the circumstances of this case suggest that that has not occurred.
Accordingly, for these reasons, I am satisfied that it is in the interests of justice that Robert Carl Klewer by his tutor Ryan Conrad Klewer be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono panel for legal assistance.
Orders
I make the following orders:
(1) Order that Mr Robert Klewer, by his tutor Mr Ryan Klewer, be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
(2) Stand the matter over to the Registrar for further directions to 13 September 2013 at 9.00 am.
Decision last updated: 19 August 2013
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