Longin v Tomordi; Longin v Department of Communities and Justice

[2024] NSWSC 1248

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Longin v Tomordi; Longin v Department of Communities and Justice [2024] NSWSC 1248
Hearing dates:	3 October 2024
Date of orders:	3 October 2024
Decision date:	03 October 2024
Jurisdiction:	Common Law
Before:	Hamill J (as Duty Judge)
Decision:	Pursuant to rr 7.36 and 7.41 of the Uniform Civil Procedure Rules 2005 (NSW) the plaintiff to be referred to the Registrar for referral to a barrister or solicitor in the Pro Bono Panel for legal assistance.
Catchwords:	CIVIL LAW – application by plaintiff for referral for pro bono legal representation – where defendant opposes application – relevant considerations – where plaintiff a barrister with a practising certificate – assertion of impecuniosity – Italian proverb – Lincoln – lawyer appearing for themself has a fool for a client – where proceedings languished for some years – sensitive allegations of sexual assault – “brilliant legal mind” – submission tinged with hyperbole or irony – desirability of detached and objective legal representation – referral made.
Category:	Procedural rulings
Parties:	K Longin (Self-represented) I Tomordi (Defendant) Department of Communities and Justice (Defendant)
Representation:	Counsel: J Shaw (Tomordi) Solicitors: Crown Solicitor’s Office (Department of Communities and Justice)
File Number(s):	2020/7374; 2020/269392
Publication restriction:	Nil

EX TEMPORE JUDGMENT (REVISED)

1. Katica Longin is the plaintiff in two sets of proceedings pending before the Court. The first, which has a case number of 2020/7374, was commenced by statement of claim filed on 8 January 2020 and the named defendant is Istvan Tomordi. The second, proceedings 2020/269392, is brought together with a second plaintiff, a child, for whom Ms Longin is tutor. That suit was brought by statement of claim filed on 14 September 2020 and the named defendant is the Department of Communities and Justice. There may have to be an amendment to that with Mr McCarthy, who appears today for the Department, suggesting the defendant should be identified as the “State of New South Wales”. I will leave that issue for later consideration by others.

2. The statement of claim in the proceedings against Mr Tomordi makes a series of accusations which can generically be described as domestic violence and serious sexual assault, and claims damages for the psychological injury occasioned as a result of those things. The incidents giving rise to that claim, based on the assertions made in the statement of claim, go back to 2014. The statement of claim against the Department seeks damages based on a cause of action which might generally be described as a breach of statutory duty or a claim in general negligence. It is asserted that the Department failed in its duties or duty to protect the child who is named, as I said, as the second plaintiff.

3. On the face of the statement of claim, it is not clear when this breach of duty or negligence occurred. However, as I indicated this morning in discussing the matter with the plaintiff in particular, I inferred the alleged breach of duty arose out of the danger in which the child and Ms Longin were as a result of the incidents referred to in the first statement of claim. Ms Longin did not precisely confirm that but generally, I think, she accepted that that is the nature of the assertion. So, I am proceeding on the basis that the causes of action are related, that is to say the two sets of proceedings are related in the sense that the danger from which the Department failed to protect the child in proceedings 2020/269392 is the same or similar conduct to that alleged against Mr Tomordi in proceedings 2020/7374.

4. Whatever be the case, the proceedings have travelled together, although they haven’t travelled very far.

5. A brief perusal of the record of proceedings on file demonstrates that the cases have a chequered procedural history and seem to have languished somewhat in the system. For present purposes, it is unproductive to attempt to attribute blame for this. At some stage earlier this year, the matters came to the attention of Chen J as part of his Honour’s review, I think generally and broadly, of older cases that had yet to be listed for hearing. The matter came before his Honour in June, July, August and September.

6. On 22 July 2024, proceedings 2020/7374 were before Sweeney J, it seems for the Court to consider whether the plaintiff should be referred to a barrister and/or solicitor for pro bono legal assistance pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) r 7.36. There was some debate that day about certain proceedings in the Federal Circuit Court and Family Court relating to transactions and litigation around certain real estate, about the value of that real estate, about a mortgage to the Commonwealth Bank and a dispute which continues to this moment as to precisely what equity Ms Longin has in the said real estate.

7. The issue before Sweeney J, which is to say the issue of whether the matter should be referred for pro bono legal assistance, did not reach resolution. The case was adjourned back to Chen J on 9 August 2024 for further case management. Sweeney J also made some orders about the filing of affidavits in the pro bono legal assistance part of the litigation.

8. The matter did come back before Chen J on 9 August 2024 but Ms Longin was unable to attend Court because she was unwell that day, and the matter was adjourned to 27 September 2024. On that date, after significant discussion that is recorded in the transcript, and which I perused for today’s hearing, his Honour made orders which were identical in each case. Those orders were:

1. The proceedings Katica Longin v Department of Communities and Justice (2020/269392) and proceedings Katica Longin v Istvan Tomordi (2020/7374) be case managed together and, subject to orders made by the trial judge to the contrary, be heard together or consecutively.

2. List the matters for hearing for 10 days commencing 3 November 2025.

3. Direct that the plaintiff file and serve any notice of motion upon which she seeks leave to amend the statement of claim in either proceeding as well as any affidavit in support by 8 November 2024.

4. Direct that any notices of motion filed pursuant to the above order be listed for directions only before Chen J on 15 November 2024.

5. List the matters for further status review on 15 November 2024.

6. Direct that the plaintiff’s application for pro bono assistance be listed before the Duty Judge on 3 October 2024.

7. Order that the plaintiff file and serve any further outline of submissions in respect of that application limited to no more than 3 pages by 1 October 2024, 10am.

8. Order the defendants to file and serve any outline of submissions opposing the referral, with such outline to be limited to no more than 3 pages, by 2 October 2024, 4pm.

9. All costs of and incidental to the Status Review in both matters are reserved.

9. It will be seen from the terms in which his Honour listed the matters for hearing that his Honour did not determine whether the cases should be heard jointly or consecutively. His Honour left that for the trial judge to determine down the track, noting that the hearing date is 3 November 2025.

10. The matter was then referred on to the Duty Judge today, and that happens to be me, essentially on the plaintiff’s notice of motion seeking referral for pro bono legal assistance. That notice of motion, and the orders therein sought, originally related only to the proceedings known as Longin v Tomordi (2020/7374) and this morning, without objection from anybody and really for the sake of completeness, Ms Longin filed in court a notice of motion seeking a similar order in respect of the proceedings against the Department (2020/269392). The Department, represented by Mr McCarthy, has indicated that the Department neither consents nor opposes the application for referral.

11. The decision which I am called upon to make will be made on the basis of the evidence provided by Ms Longin in five affidavits sworn or affirmed by herself, dated 1 July 2024, 26 September 2024, 27 September 2024, 1 October 2024 and 3 October 2024, as well as an affidavit from her mother, Maria, filed on 26 September 2024. So that is the evidence relied upon by the plaintiff on today’s application.

12. I should say, as I indicated during discussions or argument, I also take into account in coming to the conclusions that I do, the statements of claim and their terms as well as the history of the proceedings as reflected in the records of proceedings kept in the Court file and the transcripts of the appearances before Chen and Sweeney JJ. Those documents throw some light on the appropriate orders to make and I will come back to that.

13. The defendant, which is to say Mr Tomordi, also relies on an affidavit, and that is an affidavit by a real estate agent, Mr Feerick, which simply places a value on the property to which I made some passing reference earlier in discussing what happened before Sweeney J.

14. Mr Shaw of counsel appears for the defendant in proceedings 2020/7374. He opposes the referral. Essentially, without hopefully doing a disservice to his submissions, he submits that the plaintiff is not impecunious and indeed that she will come into a substantial amount of money as a result of unrelated proceedings I take to have been around the matrimonial home and in the Family Court or Federal Circuit Court. Mr Shaw submits that the plaintiff is a barrister and it has been confirmed indeed that she is admitted as a barrister with a current practising certificate, although she would say that she is not currently practising as a barrister, nor drawing any significant income from that vocation.

15. Mr Shaw goes on to say that Ms Longin is perfectly capable of representing herself. He refers to a number of occasions where Ms Longin has appeared for herself, including in those unrelated Family Law proceedings which included appearances in the appellate division, if I can call it that, of that esteemed tribunal.

16. Moreover, it was suggested Ms Longin could fund her own defence out of an income as a practising barrister. So, for example, in written submissions of 2 October 2024, Mr Shaw “conceded” that Ms Longin has a “brilliant legal mind”, and that “now that she is in private practice will undoubtedly be able to generate sufficient income over the next 12 to 18 months, sufficient to meet any costs payable by her to another solicitor and counsel.” I have to say I have a sense that those submissions are tinged with either hyperbole or irony but, in any event, I get the thrust of them.

17. Mr Shaw goes on to submit that Mr Tomordi is funding his own lawyers and has carried the cost burden of the proceedings since their commencement. Mr Shaw submits, at least by inference, that there is an element of unfairness in the Court assisting Ms Longin to obtain free legal assistance while the defendant is left to fund his case himself. Mr Shaw submits persuasively that his client “has been engaged in 10 years of litigation, substantially prosecuted and prolonged by Ms Longin”, and has incurred “unpaid legal expenses of $200,000, perhaps more”. That is an overview of the submissions made by Mr Shaw in opposing any order for referral pursuant to UCPR r 7.36.

18. As I have said, Ms Longin relies on a series of affidavits by herself and her mother. In those affidavits, she disputes that she is in a position financially to fund this litigation. She notes also that her mother is not in a position to assist her to pay for lawyers and she says on oath or affirmation that she has had no income apart from Centrelink payments, and in particular that she is not currently, despite being admitted and carrying a practising certificate, earning an income as a barrister.

19. In submissions dated 1 October 2024, which have been marked for identification MFI 2, Ms Longin makes grave allegations against both counsel for Mr Tomordi and his instructing solicitor. For example, she accused Mr Ewart, the solicitor, of not being frank with the Court and misleading the Court. She says he “knowingly misled the Court” about the extent to which she has equity in the property to which I have referred a couple of times.

20. If those accusations are not true or if they are not founded in the evidence, the making of them is inconsistent with the ethical duties of a member of the legal profession. I do not need to resolve the issue but my instinct on reading the papers is that those submissions ought not to have been made and I certainly make no finding against either counsel or the solicitor acting for Mr Tomordi.

21. The relevant provision is in, as I have said, r 7.36 of the Uniform Civil Procedure Rules:

7.36 Referral to a barrister or solicitor (cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)

(1) 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.

(2) For the purposes of subrule (1), the court may take into account—

(a) the means of the litigant, and

(b) the capacity of the litigant to obtain legal assistance outside the scheme, and

(c) the nature and complexity of the proceedings, and

(d) any other matter that the court considers appropriate.

(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.

(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.

(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.

(4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant’s referral, the registrar may make an order terminating the litigant’s referral.

(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.

(6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

22. The first thing I would note is that the means of the litigant is but one matter to be taken into account under r 7.36(2). I have to say on my review of the evidence and reading of the transcripts I do have doubts about the extent of Ms Longin’s impecuniosity. However I really do, I think, have to accept her evidence at face value for the purpose of this application.

23. Again, if those affidavits upon which she places such reliance are not true, her conduct plainly falls well short of the conduct expected of a lawyer. But I do say that I am constrained to accept generally that she cannot presently fund her case; and that while she may have – in the longer term – access to a property worth some one or two millions of dollars I cannot say that she has access to those funds now.

24. Further, her affidavit set out the attempts that she has made to engage lawyers on a speculative basis, and she has had no success in doing that. That does not come as a shock to me having read the material. Again, I feel bound to proceed at least generally on the accuracy of her assertion that she has made some attempts to obtain lawyers on a speculative basis without success.

25. On my review of the material, including the pleadings drafted by Ms Longin (herself as I take it) and the interactions between her and Sweeney and Chen JJ that material suggests that the interests of justice would be advanced by having independent and detached legal representation in the case.

26. I mentioned in argument the old adage sometimes attributed to Abraham Lincoln, but that may go back a few centuries before Lincoln, that a lawyer who appears for themself has a fool for a client. [1] I think some of the interactions between Ms Longin and the Bench, and I mean no disrespect by saying it, might show the objective observer why that saying is so often true.

    1. The aetiology of the adage is examined in detail in C D Duffy and M Gray, “He Who Represents Himself has a Fool for a Client: The Right to Counsel and the Right to Self-representations in New York”, (2023) 85(4) Albany Law Review, see footnote 1. The internet suggests the expression may originate from an old Italian proverb “Che s’insegna, &c”: Quote Investigator, “A Man Who Is His Own Lawyer Has a Fool for a Client”

27. In accordance with the orders of Chen J, and some interactions that we have had here today, there is a need for the pleadings to be redrafted – at least those directed to the Department – so that the particulars of the claim are clear. There is a distinct absence of precision in the initiating process in proceedings 2020/269392 – that is, the proceedings against the Department – and again, having someone objective to be able to consider those pleadings, and whether the claim has merit would be desirable. Questions that also arise in respect of the Department’s duty should be considered by somebody who is not so intimately involved even if they are possessed, as it is put by Mr Shaw, of a brilliant legal mind.

28. The other matter which is important in considering the exercise of the discretion under r 7.36 is the nature of the allegations made in the proceedings against Mr Tomordi. Obviously, I am not in a position to make any assessment of the merit, truthfulness or accuracy of those assertions but the reality is they concern serious allegations of sexual assault. It will involve sensitive evidence. It will involve Ms Longin giving evidence of those accusations if they are to be sustained and being cross-examined about them. The sensitive nature of such allegations is such that it is desirable that Ms Longin have someone, again objective and detached, appearing for her.

29. I cannot find that the proceedings are so complex that Ms Longin would not be capable of appearing for herself. I accept she has the capacity to do so but for the reasons I have given it is highly desirable that she have independent legal representation.

30. As I have said, I am not overwhelmingly persuaded that she is incapable of funding that matter but I am inclined to, and think I must, proceed on an acceptance of her evidence noting as I do if it is a false assertion of impecuniosity then I suspect she will not be a lawyer for very long. And if that is too vague, I refer to my earlier comments that if that is false, Ms Longin’s behaviour falls very far short of the conduct expected of a legal representative, including the requirement that the person be a fit and proper person to conduct themselves as a lawyer.

31. As I have said, the means of the litigant is but one matter to be considered, but I have taken that into account, notwithstanding my misgivings about some of the evidence. I have also taken into account what appears to be the difficulty she has had in obtaining legal assistance, again accepting what she said on face value. Whilst the proceedings are not complex, their nature is such that an independent legal representative is highly desirable if not essential. I have generally taken into account the history of the matter and the fact that it has simply staggered along until Chen J took control of the proceedings earlier this year. Chen J has now set a timetable which really must be complied with lest there be an application by one or other or both of the defendants to bring the proceedings to an end for want of due dispatch and prosecution.

32. Accordingly, I propose to make an order pursuant to r 7.36 as requested by Ms Longin. I think it is in the interests of the administration of justice that I do so and I will refer Ms Longin to the Registrar for referral to a barrister and/or solicitor on the Pro Bono Panel for legal assistance.

Orders

33. I make an order under rr 7.36 and 7.41 of the Uniform Civil Procedure Rules 2005 (NSW) for the Plaintiff to be referred to the Registrar for referral to a barrister or solicitor in the Pro Bono Panel for legal assistance.

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Endnote

is an old law,a fool for his client

Amendments

10 October 2024 - URL added to endnote.

Decision last updated: 10 October 2024