Sassoon v Rose

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…