Rahman v Berwick
[2017] NSWSC 1497
•26 October 2017
Supreme Court
New South Wales
Medium Neutral Citation: Rahman v Berwick [2017] NSWSC 1497 Hearing dates: 26 October 2017 Date of orders: 26 October 2017 Decision date: 26 October 2017 Jurisdiction: Common Law Before: Campbell J Decision: I refer Mr Rahman to the Registrar for referral to a barrister for advice as to the merits of his present summons, and advice generally on his rights, if any, to seek redress or compensation from the barrister.
Catchwords: LEGAL PROFESSION – Pro-bono scheme – Application for referral – Where applicant complains of professional conduct of former barrister Legislation Cited: Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Procedural and other rulings Parties: Mr Fahmid Rahman (Plaintiff)
Mr John Patrick Berwick (Defendant)Representation: Counsel:
Solicitors: Gilchrist Connell (Defendant)
File Number(s): 2017/30230 Publication restriction: Nil
ex tempore Judgment (revised)
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Mr Rahman is seeking an order under r 7.36 Uniform Civil Procedure Rules 2005 (NSW) for referral to a barrister for legal advice in relation to proceedings he has commenced in this Court. The proceedings are somewhat unusual because they take the form of a summons commencing an appeal from the NSW Civil and Administrative Tribunal in its Occupational Division. The decision concerned the professional conduct of a barrister.
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Mr Rahman was the barrister's former client and he was seeking certain relief of an ancillary type from the Tribunal, including an order for compensation and a refund of the fees he paid to the barrister. Apparently the Tribunal has power to order compensation which it did in the maximum sum available to it of $25,000. I am unsure whether the Tribunal had power to make an order that the fees paid to the barrister be refunded, but Mr Rahman tells me that the Bar Association and the barrister agreed that that should be done but it has not happened.
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He says that when the matter came before the Tribunal, on his application an adjournment was refused, even though a solicitor previously appearing for him was sick, and he makes a complaint about how that was dealt with. It may well be that the summons is entirely misconceived at a legal and a practical level because at a legal level, appeals from NCAT in general terms concerned with the professional conduct of legal practitioners are assigned to the Court of Appeal by s 48 Supreme Court Act 1970 (NSW), and not the Common Law Division.
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As far as I can tell, and I have been assisted to some extent by Ms Turner, solicitor, who appears for the named defendant who is the barrister, the nature of the complaints that Mr Rahman is really making are possibly, and I say nothing about their merit, the type of claim one would expect to see made in an action for damages for professional negligence rather than by this avenue of appealing from NCAT's limited statutory jurisdiction. In any event, it may well be that he would benefit from some advice about whether the proceedings in this Court have any merit whatsoever, and whether there might be some more appropriate avenue of redress.
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Under r 7.36, I have power to refer him to a barrister for legal assistance. Relevant considerations, perhaps not of a mandatory type, are identified under subrule 2. It appears to me that Mr Rahman has lost his job, and he is in receipt of some kind of benefit at the moment. I think I can infer that he is unlikely to be able to afford legal assistance from his own means if that is his sole source of income.
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Looking at his capacity to get legal help outside the scheme, he has applied for Legal Aid, but this claim does not come within their guidelines, and the Law Society does not provide assistance in professional conduct matters. It does not look to me like he has necessarily applied to the Bar Association for assistance under its Pro Bono Scheme.
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These proceedings have a degree of complexity given the form in which Mr Rahman has attempted to ventilate them, and probably given the fact that he is currently unrepresented, the nature and complexity of them might be beyond his proper understanding.
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I am a little concerned about the fact that he has previously had legal assistance, and clearly was able to organise it for himself in as much as he had at one time a solicitor in relation to the proceedings in NCAT. Moreover, he has had the benefit of a referral out under the scheme conducted by the Federal Court of Australia in relation to wrongful dismissal proceedings he is apparently pursuing in that Court, and Mr Rogers, barrister, is appearing in that matter. Mr Rogers apparently is unable to help with this matter. It does not seem that he has been referred by this Court over the last three years for pro bono assistance.
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I could well be wrong but I have a strong intuition that these proceedings are misconceived and that probably Mr Rahman might be better advised to look for a remedy under the law of tort, but I do not know enough about the case to make a conclusion about that, even if that were appropriate.
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The consideration that the proceedings may be misconceived but that Mr Rahman may have a genuine grievance against the solicitor capable of being satisfied at law leads me to conclude that it is appropriate, despite some reservations I have, to refer him for assistance under the rule. I am satisfied that the interests of the administration of justice require such an order.
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I make the following order: I refer Mr Rahman to the Registrar for referral to a barrister for advice as to the merits of his present summons, and advice generally on his rights, if any, to seek redress or compensation from the barrister.
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Decision last updated: 02 November 2017
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