QVB Pharmacy Pty Ltd v Le

[2022] NSWSC 1250

Supreme Court

New South Wales

Medium Neutral Citation:

QVB Pharmacy Pty Ltd v Le [2022] NSWSC 1250

Hearing dates:

15 September 2022

Date of orders:

15 September 2022

Decision date:

15 September 2022

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) I refer the first defendant, David Le, to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to r 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW).

(2) I direct that the following documents be provided to the panel at the time of the referral:

(a) a copy of these reasons;

(b) the statement of claim, the defence of Mr Le and the affidavits filed by the parties contained on the file; and

(c) the affidavit of David Le of 9 September 2022 (being the affidavit in support of this application).

Catchwords:

CIVIL PROCEDURE — representation — application for pro bono referral — whether referral in interests of administration justice

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law)

Cases Cited:

Ibrahim Dafaala v Concord Repatriation General Hospital [2007] NSWSC 602

Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257

Category:

Procedural rulings

Parties:

QVB Pharmacy Pty Ltd (First Plaintiff)
Peter Galettis (Second Plaintiff)
David Le (First Defendant)

Representation:

Counsel:
S Philips (Plaintiffs)

Solicitors:
Matthews Dalton Lawyers (Plaintiffs)
D Lee (Self-Represented)

File Number(s):

2020/143930

Publication restriction:

None

REVISED EX TEMPORE Judgment

1. This matter comes before me as Duty Judge by way of an urgent application which the first defendant, David Le, pursues for referral for pro bono assistance pursuant to Part 7, Division 9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

2. Mr Le appears in person on the application. He is currently unrepresented. Mr Simon Philips of counsel appears on behalf of the plaintiffs. Mr Philips tells me that the proceedings have settled between the plaintiffs and the second defendant. Mr Le has been previously represented by a solicitor but he informs me that the solicitor has ceased to act based on Mr Le’s inability to pay legal fees.

3. Mr Le relies on his affidavit of 9 September 2022. He says that:

1. He has undergone severe financial distress for over four years and has exhausted all available funds to fund his case;

2. His financial stress arises from both a failed business and a marriage breakdown. This has resulted in the deterioration of his mental and physical wellbeing;

3. As a result of this he is unable to earn any income himself; and

4. He has three children under the age of four and his former partner is terminally ill with stage four cancer.

4. He is thus seeking referral for pro bono assistance.

5. Before any referral can be made, I must be satisfied that it is in the interests of the administration of justice that the litigant be referred to the Registrar for the purposes of obtaining assistance from the Pro Bono Panel (rule 7.36(1) of the UCPR).

6. There is no challenge to anything said by Mr Le about his financial incapacity and I accept what he has said to me both in submissions and in his affidavit.

7. The proceedings were commenced in 2020. The plaintiffs seek damages from Mr Le on the basis that he engaged in misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law ^[1] in respect of the sale of a pharmacy in the QVB Building.

   1. Competition and Consumer Act 2010 (Cth), Sch 2.

8. At least having regard to the pleadings, the matter is of some complexity. I note that Mr Le has already filed an affidavit dated 16 April 2021 responding to the plaintiffs’ evidence in which he sets out his version of a number of conversations and makes reference and offers explanations to some of the matters raised by the plaintiffs which seemingly give rise to the claim against him.

9. Mr Le’s position in the proceedings appears to be that he did not mislead and deceive, that he provided all information and was honest about it, but that he relied on a broker to assist him in the sale.

10. Whilst it is not necessary that I form an opinion as to the strength of Mr Le’s position in the case before making a referral, I should at least be satisfied that it is reasonably arguable or, put another way, I should be satisfied that the case is not a case which is completely without merit. ^[2] I note that Mr Le has served evidence. There appears to be some contest on the facts and I note Mr Le’s description of the nature of his defence.

    2. Ibrahim Dafaala v Concord Repatriation General Hospital [2007] NSWSC 602 at [9] (Brereton J); cited with approval in Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 at [4] (Basten JA).

11. As I have said, I am unable to form an opinion as to the real merits of the plaintiffs’ case against him, but, similarly, there is nothing that I have seen that suggests to me that I should not accept what Mr Le says for the purposes at least of the application.

12. The matter is listed for hearing for two days in this Court on 4 and 5 October 2022.

13. My impression of Mr Le is that it would be difficult for him to properly present the case without legal representation. Further, I am satisfied, having regard to his affidavit, that he is struggling with some health issues in any event.

14. I note that Mr Philips of counsel neither consents nor opposes the referral, but observes that the matter has been listed for hearing for some considerable time and his client would certainly be opposing any application for an adjournment should one be made.

15. Nothing I have said today should indicate that there would be any proper basis for an adjournment. All I am doing is referring Mr Le to the Pro Bono Panel so that he may obtain some legal assistance. It will be a matter for those who might assist him going forward to determine what should happen with the matter and to make any application that they would wish to make.

16. In all the circumstances, I am satisfied that it is appropriate that Mr Le be referred for pro bono assistance. I am satisfied that it is in the interests of the proper administration of justice that that occur. In the circumstances, I make the following orders:

1. I refer the first defendant, David Le, to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance pursuant to r 7.36(1) of the UCPR.

2. I direct that the following documents be provided to the panel at the time of the referral:

1. a copy of these reasons;

2. the statement of claim, the defence of Mr Le and the affidavits filed by the parties contained on the file; and

3. the affidavit of David Le of 9 September 2022 (being the affidavit in support of this application).

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Endnotes

Decision last updated: 15 September 2022