Norman v Wall
[2020] NSWSC 129
•21 February 2020
Supreme Court
New South Wales
Medium Neutral Citation: Norman v Wall [2020] NSWSC 129 Hearing dates: 21 February 2020 Date of orders: 21 February 2020 Decision date: 21 February 2020 Jurisdiction: Common Law Before: Lonergan J Decision: (1) Pursuant to Uniform Civil Procedure Rule 7.36, I refer Ms Norman, the first plaintiff, for Pro Bono Assistance for advice and preparation of a further Amended Statement of Claim.
I note that the referral is limited to advising the named plaintiffs on the viability of the cause of action in tort, breach of fiduciary duty and or breach of trust, and to assist with drafting any amended statement of claim.Catchwords: CIVIL PROCEDURE – Representation – Unrepresented litigants – Assistance of court – request for referral to solicitor or barrister on the Pro Bono scheme panel – not likely to obtain legal assistance outside the scheme – interests of administration of justice – Uniform Civil Procedure Rules 2005 (NSW) r 7.36 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.36 Category: Procedural and other rulings Parties: Gillian Norman (First Plaintiff)
Ron Berry (Second Plaintiff)
Wrothwell Wall (Defendant)Representation: Counsel:
Solicitors:
J Raftery (Defendant)
Gilchrist Connell Lawyers (Defendant)
Plaintiffs (self-represented)
File Number(s): 2019/196798 Publication restriction: Nil
EX TEMPORE JUDGMENT
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Listed before me today is an application by the plaintiffs to file a second amended statement of claim. Neither plaintiff has received the benefit of legal assistance. The second plaintiff, Mr Berry, has, I am informed, been approved for pro bono assistance but no barrister has yet taken up the case.
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The proceedings were commenced in the Equity Division (Property List) in June last year. The proceedings are complex. They arise out of assertions by the plaintiffs that a scheme some years ago, commenced by a combination of individuals involving the purchase of property and a kind of cooperative ownership of those properties, all fell apart and losses were incurred.
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Both plaintiffs say that they deposited into the trust account of a solicitor, the defendant Mr Wall, $120,000 and $80,000 respectively. They each say that money was never returned to them, never accounted for and that Mr Wall breached his fiduciary and other duties to them.
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There also seems to be, potentially, a professional negligence / Common law aspect to what the plaintiffs assert.
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Because they have not had the benefit of focussed legal assistance, they have in the most recent iteration of the statement of claim, included a lot of complex material, which is, no doubt, very relevant and important to the way they see how events played out, but is not at all relevant to the cause of action they may have available against Mr Wall.
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I should also add, as a matter of context, that proceedings were initially commenced against a number of other people but they were discontinued in September last year, leaving only Mr Wall as defendant.
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Justice Darke of the Equity Division twice encouraged the plaintiffs to seek legal help because of the complexity of their case. He also identified, potentially, that the plaintiffs had possible causes of action for breach of trust, breach of fiduciary duty and negligence. In saying so, he is, of course, in no way expressing an opinion on the prospects of success of such a case, and nor am I.
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Having said that, it is important that litigants before this court get the assistance they can to best put forward any case that they may have. To that end, I have today been asked to consider referral of Ms Norman also for assistance under the pro bono scheme.
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I have referred to r 7.36 of the Uniform Civil Procedure Rules (“UCPR’). I am satisfied that it is in the interests of the administration of justice to refer Ms Norman accordingly.
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I have taken into account under UCPR 7.36(2) the fact that Ms Norman has informed me that she is on an aged pension. It appears from things stated in Court today by Mr Berry, as well as Ms Norman, that there has been some reluctance for a private solicitor or legal adviser to take up the case. I am satisfied that there have been efforts to obtain legal assistance outside the Pro Bono Scheme.
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I am satisfied the proceedings are complex.
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I am satisfied that it is also in the interests of the administration of justice that Ms Norman have such an order because, at the moment, Mr Berry has been accepted by the Pro Bono Scheme. They are co-plaintiffs, and it makes sense for both of them to have the relevant referral.
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UCPR 7.36(2) provides that I 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 three years, unless I am satisfied that there are reasons that justify the further referral.
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I have been informed by Ms Norman today that she has, fairly recently, received assistance under the pro bono scheme in respect to defamation proceedings. I am of the view they are of a very different nature to the legal issues that arise in the current proceedings. I do note that the defamation proceedings relate to these proceedings but I am of the view that there are special reasons that justify further referral, namely, the complexity of the subject matter and the efforts made so far to obtain assistance that have not borne fruit yet, as evidenced by the prolix nature of the pleading efforts so far made by way of the various attempts at a statement of claim.
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I note that UCPR 7.36(4) provides that once I have referred a litigant for assistance under this rule, the Registrar must attempt to arrange for assistance to be provided by a solicitor or barrister on the pro bono panel. It seems to me that in this case it may well be justified to have a solicitor and barrister on the pro bono panel being engaged. It is not helpful to the interests of the administration of justice if an impediment is placed in the path of accessing a barrister by requiring persons who have been referred for this type of assistance to privately engage solicitors, where the solicitors are requesting large sums of money be paid up front before they will provide assistance.
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Accordingly, I request the Registrar consider referral to both a solicitor and barrister within the pro bono scheme to ensure that the referral is able to be effective.
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I note that the referral is limited to advising the named plaintiffs on the viability of the cause of action in tort, breach of fiduciary duty and or breach of trust, and to assist with drafting any amended statement of claim.
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Decision last updated: 25 February 2020
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