Margan v Manias
[2014] NSWSC 889
•02 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: Margan v Manias [2014] NSWSC 889 Hearing dates: 2 July 2014 Decision date: 02 July 2014 Jurisdiction: Common Law Before: Davies J Decision: The Plaintiff is referred to the Registrar of the Court for a referral to a barrister or solicitor on the pro bono panel for legal assistance to advise and appear at the hearing.
Catchwords: LEGAL AID - pro bono assistance - judicial review of decision of Civil and Administrative Decisions Tribunal - prior referral for assistance - limited referral - related proceedings arising from same incidents and part of the same claim - special reasons Legislation Cited: Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Maxwell-Smith v Hall [2012] NSWCA 205 Category: Interlocutory applications Parties: Simon Margan (Plaintiff)
Danny Manias (Defendant)Representation: Counsel:
In person (Plaintiff)
No appearance (Defendant)
Solicitors:
Self represented (Plaintiff)
Self represented (Defendant)
File Number(s): 2014/170411
Judgment
This is an application for pro bono assistance by the Plaintiff. The Plaintiff has commenced proceedings under s 69 of the Supreme Court Act 1970 (NSW) for a judicial review of the decision of the Civil and Administrative Decisions Tribunal (Margan v Manias [2014] NSWCATAP 16) which dismissed an appeal from the Administrative Decisions Tribunal (Margan v Manias [2013] NSWADT 177). The proceedings in that Tribunal concerned a complaint by the Plaintiff that the Defendant engaged in conduct amounting to unlawful vilification on the ground of homosexuality. There were two incidents; one involving verbal vilification and a second incident involving a serious assault on the Plaintiff.
Ultimately, the decision of both the ADT and the Civil and Administrative Decisions Tribunal was that vilification was not involved in the physical assault. The physical assault has resulted in permanent, physical and psychological injuries to the Plaintiff, and it is in respect of that assault that he wishes to pursue the claim that it involves vilification.
The summons seeking the judicial review clearly identifies two grounds where it is said the Tribunal erred in the approach that it took to the issue. The Plaintiff is a law student,and has just completed the last two exams at the College of Law, although with some difficulty reason of the injuries that he sustained. The result is that he is on a Centrelink Disability Support program for those unable to work for the foreseeable future as a result of his injuries.
Rule 7.36 UCPR deals with applications for pro bono assistance. Sub-rule (2) provides a list of non-exhaustive matters that the Court may take into account being 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. Sub-rule (2A) provides:
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.
I am satisfied that the means of the Plaintiff are such that a referral is appropriate. The Applicant has made some attempts to obtain legal assistance by approaches to The Law Society for pro bono assistance but has been unsuccessful. Although he has not, in respect of these proceedings, sought Legal Aid, he had made an application for Legal Aid for earlier related proceedings arising out of the same incidents. That application was refused.
I am satisfied on the evidence that by reason of his financial position and by reason of the attempts he has made outside the pro bono scheme established under Pt 7 of the Rules, the Applicant has no capacity to obtain legal assistance outside this scheme. I am satisfied that the issues that are raised by the summons are not only sufficiently complex to justify assistance being given, but that they raise serious questions of law that need to be determined. It cannot be said by any means that the Plaintiff is without some likelihood of establishing the grounds that he has set out in the summons.
The previous assistance that the Applicant obtained under the scheme for pro bono assistance concerned earlier proceedings arising out of the same incidents and the same claim that was made before the Tribunal. It appears, from what I have been informed by the Applicant, that that pro bono assistance was of a limited nature.
In Maxwell-Smith v Hall [2012] NSWCA 205 Campbell JA said at [23] that special reasons might be able to be shown if the second or subsequent application was in respect of an appeal where pro-bono assistance had been provided for the hearing at first instance. In the present case limited assistance was provided in relation to related proceedings arising out of the same incidents and the same claim. It seems to me that the present application is sufficiently related to the previous grant of pro bono assistance to justify a finding of special reasons for a further referral.
For all of those reasons, I consider that a referral should be made under r 7.36.
The order I make is the Plaintiff be referred to the Registrar of the Court for a referral to a barrister or solicitor on the pro bono panel for legal assistance to advise and appear at the hearing.
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Decision last updated: 02 July 2014
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