Robinson v The State of New South Wales

[2021] NSWSC 219

Supreme Court

New South Wales

Medium Neutral Citation:

Robinson v The State of New South Wales [2021] NSWSC 219

Hearing dates:

10 March 2021

Date of orders:

10 March 2021

Decision date:

10 March 2021

Jurisdiction:

Common Law

Before:

Lonergan J

Decision:

I order that the plaintiff be referred to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance.

Catchwords:

CIVIL PROCEDURE – referral to Registrar for Pro Bono Panel for legal assistance – financial hardship – prior referrals for Pro Bono assistance in preceding two years – special reasons for further referral for Pro Bono assistance – complex pleadings requiring assistance and/or advice as to whether there are valid causes of action available to plaintiff

Legislation Cited:

Family Provisions Act 1982 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural rulings

Parties:

Sarah Robinson v The State of New South Wales

Representation:

Jessica Robinson (Daughter of Plaintiff)
B Cantrill (Defendant)

File Number(s):

2020/249662

Publication restriction:

Nil

REVISED EX TEMPORE Judgment

1. Proceedings were commenced by Sarah Jane Robinson on 27 August 2020 by Statement of Claim in the Common Law Division of this Court. The Statement of Claim named a number of defendants: The State of New South Wales; Pembroke J, a former judge of the Equity Division of this court; the Attorney General of New South Wales; the Chief Justice of New South Wales; “judges in the Court of Appeal” and what is termed to be “the High Court judges”.

2. The Statement of Claim has apparently been prepared without the assistance of legal advice and so I am not being critical when I observe that the relief sought and its bases is a little difficult to follow. It seems, broadly speaking, to be a claim for compensation for mental harm arising out of the way in which previous litigation in which the plaintiff was involved was conducted and decided in the Equity Division of this Court. To the extent I can understand it, it seems those proceedings involved an estate matter under the Family Provisions Act 1982 (NSW) and the plaintiff is most aggrieved about the outcome and the way she feels that she was treated in the proceedings and how she perceives others behaved.

3. The part of the Statement of Claim that refers to pleadings and particulars asserts that “the government” has a role in this negative outcome due to their failures to enforce relevant laws and for allowing “mental and emotional abuse” to occur to the plaintiff. It is evident that the Statement of Claim, and whatever the causes of action the plaintiff may have, need careful, considered legal advice.

4. Today the plaintiff’s daughter, Jessica, appeared on behalf of her mother because, her mother, I am told in correspondence with the Court, is too unwell to appear today and remains stressed by the subject matter of the proceedings. I must say that leads me to question, and perhaps this is a matter that should be considered very early on by any legal representative, that the plaintiff may need a tutor to deal with the subject matter of the proceedings. I simply flag that for consideration.

5. What Jessica has told me today is that she and her mother live together, her mother is on part-time wages working weekends at Bunnings, and when she works a full weekend she receives a sum of $1,100 per fortnight and with rent and other family expenses that money is likely every week to be entirely expended on living expenses. The family, that is Jessica and her mother accordingly cannot afford to pay for legal representation. I accept what I have been told in that regard.

6. I also note that Jessica informed me candidly that her mother had legal assistance for other proceedings in the last few years, but I have formed the view that there are special reasons that justify a further referral in this particular case.

7. Mr Cantrill of the Crown Solicitor’s Office appeared today acting for the first to the fifth defendants. That office had, in their customary responsible fashion, attempted to assist the circumstances by consenting to the referral of the matter to the Pro Bono Scheme under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The matter had to come before the duty judge today as it is not an order that the Registrar could make by consent.

8. Rule 7.36 of the UCPR provides for the referral to a barrister or solicitor, where the Court is satisfied that it is in the interests of the administration of justice to refer a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. Rule 7.36(2) provides that I may take into account the means of the litigant, her capacity to obtain legal assistance outside the Scheme, the nature and complexity of the proceedings, and any other matter I consider appropriate.

9. Rule 7.36 (2)(a) 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 there are special reasons that justify a further referral.

10. I am satisfied the requirements of Rule 7.36 are met.

11. I am of the view that here there are special reasons that justify a further referral. The plaintiff has filed a Statement of Claim of some complexity. In my view she needs assistance in having explained to her the potential legal bases for the matters about which she is aggrieved, if there are any legal bases, and in particular to assist her with correspondence in the proceedings which it seems from the material on the file has been upsetting to her. She would be no doubt assisted by a legal representative to help her understand that correspondence. In particular, the plaintiff needs assistance to redraft the Statement of Claim and/or advice as to whether there are valid causes of action available to the plaintiff in the circumstances about which she complains.

12. At this stage, referral to a barrister is probably sufficient since the proceedings have been commenced, but it may be there also needs to be the assistance of a solicitor to file pleadings and help conduct litigation should the matter go further down that path. However, at this stage I confine the referral to a barrister for advice on the proceedings and the drafting of an amended statement of claim.

13. I consider it in the interests of the administration of justice for the referral to take place, not the least because of the range of defendants mentioned in the pleadings.

Orders

14. For the reasons I have set out in this judgment:

- I order that the plaintiff be referred to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance.

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Decision last updated: 11 March 2021