Marino (a pseudonym) v Bello (a pseudonym)

[2022] NSWCA 50

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Marino (a pseudonym) v Bello (a pseudonym) [2022] NSWCA 50

Hearing dates:

28 March 2022

Date of orders:

28 March 2022

Decision date:

28 March 2022

Before:

Basten JA

Decision:

(1)   Dismiss the notice of motion of 5 November 2021 in respect of the application for pro bono assistance.

(2)   Dismiss the notice of motion of 25 March 2022.

(3)   The applicant to pay the costs of the 3-5th respondents on the motion.

Catchwords:

PRACTICE AND PROCEDURE – application for referral for pro bono assistance – previous applications – one in unrelated matter – one where assistance not obtained – lack of obvious merit – nature of discretion

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 7.36

Category:

Procedural rulings

Parties:

Marino (a pseudonym) (Applicant)
Bello (a pseudonym) (First Respondent)
Bello (a pseudonym) (Second Respondent)
Mark Rowlandson (Third Respondent)
Colin Rowlandson (Fourth Respondent)
Victoria Rowlandson (Fifth Respondent)
State of New South Wales (Sixth Respondent)

Representation:

Counsel:
Applicant self-represented
Mr B McManus (Third to Fifth Respondents)
Mr R Coffey (Sixth Respondent)

Solicitors:
Applicant self-represented
Colin Biggers & Paisley (Third to Fifth Respondents)
Sparke Helmore (Sixth Respondent)

File Number(s):

2021/175377

Judgment

1. BASTEN JA: In this matter there is a non‑publication order in relation to the names of the parties and it will be a matter which is continued by this judgment. The applicant will be referred to as Marino and the respondent as Bello.

2. On 11 March 2021 Gibson DCJ gave a decision which dismissed summarily proceedings brought by the applicant in the District Court. The proceedings had been commenced in the Supreme Court but were transferred to the District Court. The proceedings involved claims for malicious prosecution and abuse of process. They were originally brought against two parties being the applicant's sister and her husband. The applicant sought to join to those proceedings (i) the lawyers who were involved in the defence of other proceedings by the first and second defendants in the District Court and (ii) the State of New South Wales.

3. The proceedings involved, amongst other matters, an application for an apprehended domestic violence order. It is not clear from the material available to this Court whether (i) that was a criminal proceeding which would support a claim in malicious prosecution and (ii) whether the proceeding terminated in favour of the applicant in circumstances where initially orders had been made against him. Those considerations may be put to one side. On 18 June 2021 the applicant filed an application for leave to appeal to this Court from the judgment of Gibson DCJ. On various dates following that application written submissions were filed in support of the application. The application for leave to appeal has still not been heard.

4. On 5 November 2021 the applicant filed a notice of motion seeking, amongst other orders, an order addressed to the Registrar to organise pro bono assistance for the applicant in the proceedings in this Court. That is the matter which comes before the Court today for determination. It comes before the Court following a series of earlier orders. On 21 March 2022 the Registrar had listed for hearing on 27 April 2022 the application for leave to appeal. He stood over the application for pro bono assistance to be heard with the leave application. He also stood over an application to review certain costs orders he had made against the applicant which the applicant sought to challenge. That review was listed to be heard on the same date as the application for leave to appeal. On 23 March 2022 the Registrar declined to vacate the hearing date which had been fixed, but he did list the pro bono motion for hearing on 28 March before a judge, as the Registrar does not have authority to grant such a motion. That is the matter the subject of these reasons.

5. The applicant was given leave to file submissions by 25 March 2022. In fact he filed submissions by way of an affidavit which included both factual information and submissions and, by agreement, the affidavit has been treated in that way. On 25 March 2022 the applicant also filed a notice of motion seeking review of the orders of the Registrar made on 23 March and a stay of the orders made on both 21 and 23 March. As the matter has proceeded it became clear that the applicant was seeking to have the application for pro bono assistance determined. If that application is granted, it is clear that the listing of the application for leave to appeal will need to be vacated and the matter returned to the Registrar's list in due course. If the application for pro bono assistance is not granted, there is no alternative basis upon which to vacate the hearing of the application for leave to appeal. Given that the application for leave to appeal has now been outstanding for over ten months, it is appropriate that it be heard expeditiously and the parties have proceeded on that basis.

6. So far as the motion seeking a review of the costs orders is concerned, the applicant is content that they should be dealt with at the same time as the application for leave to appeal.

7. Turning then to the question whether an order should be made for referral of the applicant to obtain legal assistance by a barrister or solicitor, it is necessary to have regard to both the history of the matter and the requirements of the rules.

8. Under the Uniform Civil Procedure Rules 2005 (NSW), r 7.36, the Court has a power to refer a matter to the Registrar, for the Registrar to seek a referral to a barrister or solicitor on the pro bono panel. In considering such a referral, the court should take into account (i) the means of the applicant, (ii) the capacity of the applicant to obtain legal assistance otherwise then by a referral, (iii) the nature and complexity of the proceedings and (iv) any other matter the Court considers appropriate.

9. Further, subr (2A) states that the Court may not refer a litigant for assistance if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of three years, unless the Court is satisfied there are special reasons to justify a further referral. There are two circumstances which might be thought to invoke that rule. The first is that, in a different set of proceedings in the Supreme Court, the applicant did seek and obtain a referral for pro bono assistance. However, that matter is unrelated to the present matter; it apparently involved an application by the applicant (a former solicitor who is no longer entitled to practise) for renewal of his practising certificate. Whatever the strict or literal meaning of r 7.36(2A), I do not take it to encompass an attempt to obtain assistance, or the obtaining of assistance, by a previous referral in an unrelated proceeding. Accordingly, I do not think that the requirement that there be special reasons as required by that subrule is engaged as a result of that earlier referral.

10. The second circumstance is that an application was made to the District Court judge for a referral when the present matter was before her. She made an order for referral, which was not productive of assistance because the Registrar was unable to locate a pro bono lawyer to assist the plaintiff in his District Court proceeding. That order in itself would not engage subr (2A) because the rule is dependent upon the applicant having obtained assistance under a previous referral and no assistance was obtained under the proposed referral in the District Court.

11. Accordingly, I do not think that the requirement for special reasons is engaged in this case. However, the circumstances in which an application has been made for referral and no lawyer has been found who has been willing to take the matter on, in relation to the same proceeding, is a matter of some concern.

12. Returning to the relevant criteria, the applicant says, first, that he has no funds to pay for legal assistance. He has tendered a notice from Centrelink indicating that he is in receipt of assistance; he also says he is a student. Secondly, although he has experience as a trained and formerly admitted solicitor, he says his expertise does not extend to pleading matters of this kind. He said he had a similar problem in the District Court which gave rise to the need to seek leave to appeal.

13. As to the first criterion, I am satisfied that he does not have the funds to obtain legal assistance.

14. As to the second criterion, I am satisfied that the nature of the matter is one in which he would not expect to obtain Legal Aid from the Legal Aid Commission.

15. However, other considerations militate against a referral. First, there was a problem in the Court below as to whether the criminal proceedings which might give rise to a claim in malicious prosecution had been terminated favourably to the applicant. At that time it was said they had not. There is also a question as to whether there were any criminal proceedings on foot.

16. As to the third criterion (the nature and complexity of the proceeding), regard should be had to the manner in which they have come to this Court. The Court is not required to determine whether there is merit in the proposed appeal; that is something which must be considered by two judges of the Court who will determine in due course the application for leave to appeal. However, a reading of the judgment of the District Court, raises various concerns as to whether it would be of any assistance to the applicant to obtain legal advice at this stage.

17. The matter has a history which is not conducive to an attempt to provide further assistance.  The claims against his sister and brother‑in‑law apparently relate to his access to their children. Such a claim is unusual and is a matter to be dealt with in the Family Court or the Federal Circuit Court where the proceedings were brought. The fact that the plaintiff then claimed damages for malicious prosecution, abuse of process and other matters in the Supreme Court suggests that there is an ongoing inclination to seek to resolve family differences by way of Supreme Court and now District Court proceedings. Whether the claim for malicious prosecution has any basis in law is not something that I am able to determine. There may be a claim for abuse of process but that is not a matter about which this Court has any information.

18. Having commenced the proceedings against the two primary parties, the applicant sought to enlarge the number of defendants by adding their solicitors, based on complaints about their conduct of proceedings in Court. It is not self-evident that such a claim is tenable. The fact that the applicant has experience as a solicitor, albeit he says not in a way which assists him to draft pleadings in a case like this, is also a matter to be taken into account. It is pointed out that he has filed written submissions in this Court, that he has conducted proceedings in other places and, although as yet unsuccessful, it does not follow that the lack of success is due to his lack of ability to present a matter if such a matter is tenable and arguable.

19. The District Court judge described the pleading as hopeless: judgment at [29]. She also referred to the fact that there had been repeated unsatisfactory attempts at amendment. There had in fact been four proposed sets of amendments and the judge was not inclined, on the basis of that experience, to grant a further adjournment to allow further amendments. The manner in which the District Court conducts its own proceedings in civil cases is a matter with which this Court is unwilling to interfere unless there are clear cases of miscarriage of justice or there has been some breach of procedural fairness of a kind which does not appear on the face of these proceedings.

20. The fact that there has been a referral for pro bono assistance in the District Court proceedings, that is in the same proceedings that are now before this Court, and that it was not possible to obtain assistance, suggests that the matter is not one in which it is easy to see merit. In these circumstances I needed to be persuaded that there is a likely benefit to be gained from obtaining pro bono legal assistance. The scheme is one which not only should not be abused, and I am not suggesting the present application is one which seeks to abuse the scheme, but is one in which the Court has a lively discretion because it requires that a barrister or a solicitor (or both) be requested to provide time without remuneration, in order to assist the Court and the litigant.

21. I am not persuaded in the present case that this is one in which that discretion should be exercised in favour of the applicant. I, therefore, decline to make the referral for pro bono assistance sought by the applicant. In those circumstances, there being no other order which need be addressed, and the matter having been listed for hearing of the leave application, I make the following orders:

1. Dismiss the notice of motion of 5 November 2021 in respect of the application for pro bono assistance.

2. Dismiss the notice of motion of 25 March 2022.

3. Order the applicant to pay the costs of the 3-5^th respondents on the motion.

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Decision last updated: 05 April 2022