Sassoon v Rose

[2013] NSWCA 222

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sassoon v Rose [2013] NSWCA 222

Hearing dates:

8 July 2013

Decision date:

08 July 2013

Before:

Barrett JA

Decision:

The application for pro bono legal assistance is refused.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - application for referral for pro bono assistance - where no prospects of successful appeal shown - application refused

Legislation Cited:

Succession Act 2006, ss 57(d), 59
Uniform Civil Procedure Rules 2005, Part 7 Division 9

Cases Cited:

Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602
Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257
House v The King [1936] HCA 40; (1936) 55 CLR 499

Category:

Interlocutory applications

Parties:

Aliza Alice Sassoon - Applicant
Adrian Rose - Respondent

Representation:

Applicant in person
Applicant in person

File Number(s):

2013/7578

 Decision under appeal 

Citation:

[2012] NSWSC 1554

Date of Decision:

2012-11-15 00:00:00

Before:

White J

File Number(s):

2011/82496

Judgment

1. Ms Sassoon seeks referral for pro bono assistance pursuant to Part 7 Division 9 of the Uniform Civil Procedure Rules 2005 in respect of her proposed appeal against a costs order made by White J on 15 November 2012 and orders of Macready AsJ of 14 December 2012 dismissing her claim for provision out of the estate of Isaac Joseph Beder, her former husband.

1. The rules require, upon an application of this kind, that the court take into account the means of the litigant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and any other matter the court considers appropriate. In addition and as Basten JA pointed out in Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 approving observations of Brereton J in Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602, while the referral does not indicate that the court has formed an opinion on the merits of the litigant's case, the court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit.

1. In this case both the decisions that Ms Sassoon seeks to challenge involved the exercise of judicial discretion. Any appeal would fall to be decided according to the well known principles in House v The King [1936] HCA 40; (1936) 55 CLR 499. I am bound to say that I see no real basis at all on which Ms Sassoon might succeed in that task. The costs decision of White J reflected a perfectly orthodox application of the principle that costs follow the event. The decision of Macready AsJ also proceeded on orthodox lines. I should say a little about those proceedings.

1. On 14 March 2011, Ms Sassoon filed out of time a summons which, "generously construed" (to use the words of Macready AsJ), made an application under the Succession Act 2006 for provision out of the estate of the late Mr Beder by way of a family provision order. Ms Sassoon, as former wife of the deceased, was an eligible person under ss 57(d) and 59 of the Succession Act.

1. On 5 December 2012 Macready AsJ heard Ms Sassoon's application. He gave judgment on 14 December 2012. Ms Sassoon was granted an extension of time to file the application but Macready AsJ dismissed the proceedings and ordered Ms Sassoon to pay the defendant's costs.

1. Macready AsJ noted that, before making a family provision order, he had to be satisfied that there were factors warranting the making of the application. He referred to s 59(1)(b) of the Act. He referred to Ms Sassoon's receipt of a financial settlement from her husband in the context of their divorce some thirty years ago and noted that her claims under the Act stemmed from her dissatisfaction with the amount of that settlement and her subsequent quality of housing. He said that these were not factors that warranted the making of the application. He therefore found that there were no factors warranting the making of the application and dismissed the proceedings.

1. However, Macready AsJ went on to make further findings in case his view on the threshold issue was incorrect. He referred to the financial needs of the three beneficiaries under the will, the relationship between the deceased and the beneficiaries, Ms Sassoon's total lack of contact with the deceased over some thirty years and Ms Sassoon's failure to provide any evidence of her present financial circumstances or to refer in her affidavit to particular matters in respect of which she needed assistance which could be described as matters for her maintenance, education or advancement in life. He noted that Ms Sassoon would receive approximately $270,000 from the distribution of her recently deceased mother's estate. In these circumstances, his Honour found no basis for making provision for Ms Sassoon out of the estate of the late Mr Beder and dismissed the proceedings on that basis as well.

1. There is no apparent basis at all on which a challenge to either the decision of White J or the decision of Macready AsJ would be found to involve error in the sense relevant to the principles enunciated in House v The King (above).

1. It is also relevant to note that Ms Sassoon had two referrals for pro bono assistance in relation to the Equity Division proceedings. On the first occasion, no lawyer could be found who was willing to take the assignment. On the second occasion, a member of the inner bar accepted a retainer but Ms Sassoon later terminated it.

1. Ms Sassoon has this morning referred to approaches to Legal Aid and to three solicitors thereafter for the purposes of the Equity Division proceedings, yet no one appeared for her in those proceedings.

1. Ms Sassoon has also referred at length to various matters of family relationships, family problems, personal difficulties and health issues over a considerable period, but these are of no relevance to the application before me, apart from serving to confirm a lack of means.

1. In all of the circumstances there is no sound basis for any further referral for pro bono legal assistance.

1. The application for referral for pro bono legal assistance is therefore refused.

**********

Decision last updated: 16 July 2013