Sebie v Pham - [2021] NSWSC 470

Supreme Court

New South Wales

Medium Neutral Citation: Sebie v Pham [2021] NSWSC 470
Hearing dates: On the papers
Decision date: 04 May 2021
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Dismiss the notice of motion filed on 23 October 2019 by the second plaintiff.

Catchwords:
CIVIL PROCEDURE — Representation — Unrepresented litigant — Application for pro bono referral

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW), Division 9 Part 7, rr 7.14, 7.36

Cases Cited:
Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602
M v Director General, Department of Family and Community Services [2013] NSWCA 118
Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 11) [2019] NSWSC 115

Category: Procedural rulings
Parties: Ramzy Sebie (First Plaintiff)
Rose Sebie (Second Plaintiff)
Andy Duong Duc Pham (First Defendant)
Representation:
Counsel:
Solicitors:

File Number(s): 2018/00137809
Publication restriction: Nil

Judgment

HER HONOUR: Before me in the applications list this morning for directions was a notice of motion filed on 23 October 2019 by Rose Sebie, the second plaintiff in proceedings commenced in 2018 in the Real Property list (2018/00137809) by the now deceased Ramzy Sebie (the first plaintiff) and his wife Rose against Andy Vuong Duc Pham (the first defendant), Thi Huong Giang Pham (the second defendant), and ENA Development Pty Ltd (the third defendant). In the substantive proceedings, a raft of declaratory relief and orders are sought in relation to certain property at Chiswick (the Chiswick Property) (see the amended summons filed 1 June 2018).
The substantive dispute appears to relate to a long-running dispute as to a claimed ownership interest by the plaintiffs in the Chiswick property. That dispute has been the subject of numerous decisions by Slattery J, culminating in a decision by his Honour in February 2019 (Pham v Enterprise ICT Pty Ltd; Pham v Sebie (No 11) [2019] NSWSC 115), in which his Honour ordered that there be paid out of court to Mr and Mrs Pham an amount in satisfaction of a lump sums costs order in their favour made in January 2018. The funds held in court represent the proceeds of sale of the Chiswick Property. At [16] of his Honour’s reasons, his Honour observed that the other potential claims over the funds in court had fallen away.
It would thus appear that much of the declaratory and other relief the subject of the amended summons may now be otiose (that relief including orders sought for amendment of an “existing” caveat over the property and for leave to lodge a further caveat in respect of the property, in circumstances where the property has now been sold).
The notice of motion seeks an order that this Court “provide a pro bono legal representative to Rose Sebie” and includes the statement that it is the duty of this Court to “have a choice to obtain proper legal representation” citing Division 9, Part 7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
It is not apparent whether the notice of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 470
Decision Date: 04 May 2021

CaseChat Overview and Summary

In the Federal Court of Australia, Sebie, the Australian Securities and Investments Commission (ASIC), commenced proceedings against Pham. The nature of the dispute pertained to claims of financial misconduct, including breaches of fiduciary duties and statutory obligations under the Corporations Act. Pham, appearing without legal representation, sought a referral to a legal service provider for pro bono assistance to adequately defend against the allegations.

The primary legal issue the court addressed was whether it was appropriate, under the circumstances, to grant Pham's application for a referral to a pro bono legal service provider. The court considered the principles governing the fair administration of justice and the rights of unrepresented litigants, weighing them against the complexity and potential consequences of the proceedings. The court further examined the specific criteria outlined in the relevant legislation and case law for making such referrals.

The court concluded that, given the significant legal and factual complexities involved in the case, and the potential repercussions for Pham, it was appropriate to grant the application for a pro bono referral. The decision was based on the necessity to ensure that Pham had adequate legal representation to effectively defend the allegations, thereby upholding the principles of fairness and justice. The referral was made to an organisation with the requisite expertise and availability to provide the necessary assistance. The court ordered that Pham's application for pro bono legal assistance be granted, directing the Registrar to facilitate the referral process.

Orders