Norman v Wall - [2020] NSWSC 129

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:
J Raftery (Defendant)
Solicitors:
Gilchrist Connell Lawyers (Defendant)
Plaintiffs (self-represented)

File Number(s): 2019/196798
Publication restriction: Nil

EX TEMPORE JUDGMENT

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.
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.
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.
There also seems to be, potentially, a professional negligence / Common law aspect to what the plaintiffs assert.
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.
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.
Justice Darke of the Equity Division twice encouraged the plaintiffs to seek legal help because of the complexity of their case.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Norman v Wall

Details

AGLC: Norman v Wall [2020] NSWSC 129
Case: [2020] NSWSC 129
Decision Date: 21 February 2020

CaseChat Overview and Summary

The case of Norman v Wall involved a dispute between two parties, Norman, the plaintiff, and Wall, the defendant, concerning an issue that was not explicitly stated in the provided text. The matter was heard in a court in New South Wales, Australia. Norman, appearing unrepresented, made a request to the court for assistance in obtaining legal representation, specifically seeking a referral to a solicitor or barrister on the Pro Bono scheme panel. Norman argued that it was unlikely they would obtain legal assistance outside the scheme and that facilitating such a referral would serve the interests of the administration of justice.

The central legal issue before the court was whether an unrepresented litigant could be granted a referral to a legal professional on the Pro Bono scheme panel, in accordance with the provisions of the Uniform Civil Procedure Rules 2005 (NSW) rule 7.36. This rule empowers the court to provide assistance to unrepresented litigants in matters where the court considers it appropriate. The court needed to determine whether Norman's circumstances met the criteria for such assistance and if granting the referral would indeed promote the administration of justice.

The court considered the criteria outlined in rule 7.36 and assessed whether Norman's case met the threshold for requiring legal assistance. It found that Norman's situation indicated a likelihood of not obtaining legal help outside the Pro Bono scheme and that facilitating a referral would indeed contribute to the administration of justice. Consequently, the court granted Norman's request for a referral to a legal professional on the Pro Bono scheme panel. The decision emphasised the importance of ensuring that unrepresented litigants have access to legal representation when necessary, in order to uphold the principles of fairness and justice within the legal system.

Orders