Rurik v State of New South Wales

[2023] NSWSC 674

Supreme Court

New South Wales

Medium Neutral Citation:

Rurik v State of New South Wales [2023] NSWSC 674

Hearing dates:

9 June 2023

Date of orders:

9 June 2023

Decision date:

09 June 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

1) Pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff is referred to a barrister or solicitor on the Pro Bono Panel for legal assistance.

2) Pursuant to r 7.37 of the Uniform Civil Procedure Rules 2005 (NSW, the referral in order 1. is made for the following kinds of assistance:

a) advice in relation to the proceedings,

b) drafting or settling of documents to be filed or used in the proceedings,

c) representation generally in the conduct of the proceedings or of part of the proceedings if advice is given the pleadings should be redrawn and the plaintiff could prosecute the claim in an amended form.

3) Plaintiff’s Notice of Motion filed 10 May 2023 is otherwise dismissed.

4) No order as to costs.

5) Vacate the directions hearing before the Registrar on 22 June 2023.

6) List the matter for directions hearing before the Registrar on 21 July 2023.

7) Grant liberty to the parties to apply to relist the matter on 24 hours’ notice.

Catchwords:

CIVIL PROCEDURE – application for pro bono assistance under r 7.36 of the UCPR – application granted

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Principal judgment

Parties:

Cian Xander Rurik (Plaintiff)
State of New South Wales (Defendant)

Representation:

Solicitors:
The Crown Solicitor of NSW (Defendant)

File Number(s):

2022/314873

JUDGMENT

1. By Statement of Claim filed on 14 October 2022, Cian Xander Rurik (“the plaintiff”), commenced proceedings against the State of New South Wales and the New South Wales Police Force. In that Statement of Claim, the plaintiff refers to a personal injury and indicates that attached to that claim, are what are described as pleadings and particulars seeking compensation in the form of damages.

2. The document which appears to be attached, relevant to the Statement of Claim, is an affidavit of the plaintiff. The affidavit attends to many considerations, but for present purposes I will only mention two of them. Firstly, the plaintiff refers to him suffering autism and a traumatic brain injury. Secondly, on a page approximately midway through the affidavit, the plaintiff provides what he describes as pleadings and particulars following a section of the affidavit referring to the relief claimed.

3. The plaintiff in these proceedings is self-represented and I am prepared to proceed on the basis that the matters attested to in the affidavit also incorporate, for all relevant purposes, a statement of pleadings and particulars as well as a reference to the relief claimed.

4. Be that as it may, no doubt in part because of communications by the then first defendant, the State of New South Wales, the plaintiff amended the statement of claim by the filing of an amended statement of claim dated 10 May 2023. That Statement of Claim reduces the defendants to one, namely the State of New South Wales, and deals with a series of pleadings and particulars albeit in circumstances where the defendant contends that the pleadings are deficient.

5. There appears then to have been an intervening period where the plaintiff’s mother contacted the defendant’s solicitor indicating that Mr Rurik’s health was poor, and that Mr Rurik and his mother intended to discontinue the proceedings. Communications ensued between the plaintiff’s mother and the defendant’s solicitor, Ms Edenberg, with the final contact occurring a few weeks ago where Ms Edenberg advised that the Crown could not consent to a notice of discontinuance due to the plaintiff’s poor health.

6. The concern of the defendant needs to be explained in a particular way. While there was a potential desire to discontinue the proceedings by the plaintiff’s mother, the State understandably expressed some reluctance in acquiescing to the discontinuance due to the physical and psychological state of the plaintiff.

7. I note that in the amended Statement of Claim there is a further reference to the difficulties experienced by the plaintiff, including a reference specifically to cognitive impairment in the form of a neurocognitive dementia and a mental health impairment which is exacerbated or aggravated by autism spectrum disorder.

8. The matter comes before me in the Court's duty list today because of a notice of motion filed by the plaintiff on 10 May 2023. By that notice of motion, the plaintiff seeks two forms of relief. Firstly, he seeks an order for a referral for legal assistance under Division 9 Part 7 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and secondly, he seeks an order to stay the proceedings either permanently or until a specified day. The second order may be immediately put aside as the plaintiff today indicated that he did not wish to proceed today with the prosecution of that prayer for relief.

9. Accordingly, the Court has before it an application for referral under r 7.36 of the UCPR. The plaintiff assures me that he has sufficiently recovered from the state of health that were referred to by his mother in communications with the Crown Solicitors Office to proceed with the Notice of Motion, but, because of the vulnerabilities that he suffers, legal assistance is sought.

10. The defendant, for its part, and commendably, supports that application because of the plaintiff's physical and psychological conditions, but also because some assistance would be required in order to properly formulate any claim in the proceedings if, after legal advice, the plaintiff decides to proceed with the claims which he has formulated most recently in the amended Statement of Claim.

11. That is a background which brings to attention the consideration of the provisions of Rule 7.36 of the UCPR. In reaching a conclusion in that respect, I have had regard to the various materials filed by the plaintiff in the proceedings to date, including two affidavits made on 2 May 2023 and filed later in time. I have also had regard to the variation pleadings, such as they are, as I have earlier described them.

12. Based on that background, some conclusions may be reached, having regard to the provisions of r 7.36(2) as follows:

1. The plaintiff is a person of limited means.

2. The plaintiff has made a number of attempts to obtain legal assistance without success to date. I have serious concerns as to the capacity of the plaintiff to obtain legal assistance outside the provisions of the scheme itself.

3. I am reluctant to embark upon a discussion in any detail as to the nature and complexity of the proceedings based on the matters presently before the Court. However, it would appear that the causes of action sought to be agitated by the plaintiff relate to actions in tort for assault and battery, negligence and perhaps wrongful imprisonment. It is reasonably clear at least some of those claims arise from interactions between the plaintiff and New South Wales Police. It is not beyond wit to reach a conclusion that based at least upon the terms of the amended statement of claim, any proceedings brought by the plaintiff in this respect may be possessed of some complexity, and certainly would be of a nature whereby it would be expected the plaintiff would have difficulty in formulating his claims, even apart from the particular vulnerabilities experienced by the plaintiff.

4. The plaintiff's physical and psychological difficulties, in my view, make him a vulnerable person in the bringing of proceedings of the kind that he wishes to bring. More importantly, on the face of the record before the Court at this stage, the nature of those difficulties are such as would impede his capacity to formulate a claim on his own behalf and to make assessments about the appropriateness of pursuing those claims.

13. All of those circumstances provide a powerful combination of factors which point to the grant of a referral to a barrister or solicitor on the pro bono panel for legal assistance pursuant to r 7.36 of the UCPR in the interests of the proper administration of justice. There remains a question as to what should be the nature of the conferral in that respect.

14. I do not propose to delineate between whether the referral may be made to a barrister or solicitor. It appears to me that either might be appropriate in the present circumstances. The related question, however, is what should be the extent of the referral in the present circumstances.

15. In all the circumstances, it is appropriate that the referral be a comprehensive one for the purposes of advice, pleadings, and the conduct of the proceedings on behalf of the plaintiff by a solicitor or barrister on the pro bono panel if advice in favour of a prosecution of the claims is sought to be advanced by the plaintiff in this amended statement of claim (if advanced in the proper form).

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Decision last updated: 20 June 2023