Maureen Mary Young v Road and Maritime Services

[2019] NSWCA 255

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Maureen Mary Young v Road & Maritime Services [2019] NSWCA 255
Hearing dates:	14 October 2019
Date of orders:	14 October 2019
Decision date:	14 October 2019
Before:	Brereton JA
Decision:	(1) Leave be granted to the applicant to amend the Summons to add an Application for Leave to Appeal from the orders made on 30 September 2019. (2) Direct that any additional documents proposed to be relied on in connection with the Application for Leave to Appeal be included by the applicant in a supplementary white book to be served by 21 October 2019. (3) The Notice of Motion is otherwise dismissed with costs.
Catchwords:	CIVIL PROCEDURE – application for pro bono assistance – where pro bono assistance granted in immediately preceding three years
Legislation Cited:	Uniform Civil Procedures Rules 2005 (NSW) r 7.36(2A)
Category:	Procedural and other rulings
Parties:	Maureen Mary Young (appellant) Roads and Maritime Services (first respondent) State of New South Wales (second respondent)
Representation:	Counsel: M Young (self-represented) P Lane (respondents)   Solicitors: Appellant self-represented Crown Solicitor’s Office (respondents)
File Number(s):	2019/290549
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2019] NSWSC 1014 Date of Decision: 13 August 2019 Before: Fagan J File Number(s): 2018/83808

EX Tempore Judgment

1. On 13 August 2019 Fagan J, sitting in the Common Law Division, gave summary judgment for the plaintiff Roads and Maritime Services, the present respondent, against the defendant Ms Young, the present applicant, for possession of certain land and premises at Pearl Bay, Beauty Point, and leave to issue a writ of possession; and pursuant to a further judgment given on 30 September 2019, for unpaid rent up to the date of termination of the lease, for an occupation fee for the period thereafter, and for costs. The applicant seeks leave to appeal from those judgments to this Court. Pursuant to directions previously made by McCallum JA on 23 September 2019, the application has been set down for hearing on a “leave only” basis on 24 October 2019, and execution of the writ of possession and enforcement proceedings otherwise under the judgment of 13 August 2019 was stayed up to and including 29 October 2019, being five days after the hearing of the leave application. By notice of motion, which was amended by leave in court today, the applicant seeks, in substance, a referral for legal assistance under the pro bono scheme; leave to amend the summons to include the supplementary judgment given by Fagan J on 30 September 2019; and, essentially in aid of the pro bono referral, vacation of the hearing date and an extension of the stay.

2. Leave to amend the application to include the supplementary judgment given on 30 September 2019 was not opposed and will be granted, and I will make a direction for any further relevant documents to be included in a supplementary white book.

3. So far as the application for referral for pro bono assistance is concerned, Uniform Civil Procedures Rules 2005 (NSW) r 7.36(2A) provides that the Court may not refer a litigant for assistance under the rule 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 that there are special reasons that justify a further referral.

4. Ms Young had the benefit of a referral in or about November 2016, which is within that period of three years. Generally speaking, referrals for pro bono assistance are made where other applications for assistance, such as for legal aid, have been made but are unsuccessful and where it appears to the Court that there is some merit in the applicant’s case, and a risk that it will be insufficiently articulated without the benefit of legal assistance.

5. At first sight – and I hasten to say that it is only at first sight – merit in the application for leave to appeal is not self-evident here. However, it is possible that on the more mature reflection that a leave application would receive upon hearing by a bench of two judges, the Court might then come to the conclusion that there is sufficient merit to warrant a grant of leave, and if it were to come to that conclusion, there might then be sufficient special reasons to justify a further referral. But on this application, I am not satisfied that there are special reasons that justify a further referral for the purposes of r 7.36(2A).

6. In those circumstances there is no warrant for vacating the hearing date, which was fixed on the basis that the applicant would have the benefit of a stay of execution while there was an early hearing date available. In those circumstances it is also not necessary to vary the terms of the stay presently granted, because the Court hearing the application for leave will be able to do so if it is minded to grant leave, or if it is minded to the view that a further period of time should be allowed for Ms Young to vacate.

7. The Court orders that:

1. Leave be granted to the applicant to amend the Summons to add an Application for Leave to Appeal from the orders made on 30 September 2019.

2. Any additional documents proposed to be relied on in connection with the Application for Leave to Appeal be included by the applicant in a supplementary white book to be served by 21 October 2019.

3. The Notice of Motion is otherwise dismissed with costs.

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Decision last updated: 18 October 2019