Soulis v R & a Henry Auto Repairs (No 2)

[2022] NSWSC 967

Supreme Court

New South Wales

Medium Neutral Citation:

Soulis v R & A Henry Auto Repairs & Ors (No 2) [2022] NSWSC 967

Hearing dates:

17 June 2022

Date of orders:

17 June 2022

Decision date:

17 June 2022

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) The hearing of the notices of motion presently listed before me on 30 June 2022 is vacated.

(2) Pursuant to r 7.36 of the Uniform Civil Procedure Rules2005 (NSW) and in circumstances where I am satisfied that it is in the interests of the administration of justice to do so, I order that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance, such legal assistance to be limited to obtaining preliminary advice in relation to the prospects of success in the proceedings brought by the plaintiff.

(3) I list the matter for further directions before me at 9.15am on 15 July 2022.

(4) I reserve the question of the costs.

Catchwords:

PRACTICE AND PROCEDURE – Pro bono referral – No point of principle

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Principal judgment

Parties:

Andrew Soulis – Applicant
R & A Henry Auto Repairs Pty Ltd – First Respondent
Mark Gary Henry t/as R & A Henry Auto Repairs Pty Ltd – Second Defendant
Brett Alan Henry t/as R & A Henry Auto Repairs Pty Ltd – Third respondent

Representation:

Counsel:
Self-represented – Plaintiff/Applicant
J Burke – Defendants/Respondents

Solicitors:
Self-represented – Plaintiff/Applicant
J Burke Law – Defendant/Respondents

File Number(s):

2021/365912

Publication restriction:

Nil

Judgment – EX tempore (REVISED)

1. Before the Court is a Notice of Motion filed by the plaintiff on 27 May 2022 seeking an order pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) (the rules) that this matter be referred to the Registrar, for a referral to a barrister or solicitor on the pro bono panel to provide legal assistance to the plaintiff. The Notice of Motion is supported by an affidavit of the plaintiff of 23 May 2022. The application has been opposed on behalf of the defendants.

2. It is not necessary for me to set out the history of the proceedings. It is sufficient to note that they emanate from a decision of the NSW Civil and Administrative Tribunal. The plaintiff requires leave to bring the proceedings. At the present time, there are two notices of motion listed before me for hearing on 30 June next which, depending on how they are resolved, could bring the proceedings to an end.

3. In opposing the order sought, the solicitor for the defendants submitted that the proceedings were “elective”, and that in circumstances where the plaintiff requires the Court’s leave to proceed, this was not an appropriate case for a referral. It was further submitted that this would necessarily further delay the proceedings and visit additional costs on the defendants, in circumstances where the amount in issue is said to be less than $10,000.

4. The matters raised by the solicitor for the defendants are not without merit, and I appreciate the defendants’ position. That said, as I pointed out to the defendants’ solicitor in the course of argument, what is in the interests of justice is, as it were, a two-way street. It is evident on the material before me that the plaintiff is a person of limited means. His previous application to the Legal Aid Commission for assistance was refused. A subsequent appeal against the Commission’s refusal to provide assistance was dismissed. The plaintiff has little capacity to obtain legal assistance outside the pro bono scheme. Whilst the issues in the proceedings could not be said to be particularly complex to a trained lawyer, they may well present as complex to a person such as the plaintiff who is not legally trained.

5. I have had regard to the fact that the making of the order sought by the plaintiff will delay the proceedings to some degree, in circumstances where there are already notices of motion fixed before me for hearing. The reality is that any referral to the pro bono panel will not be resolved by the hearing date. Accordingly, the making of the order sought will result in the hearing of those notices of motion being vacated.

6. I have taken into account the matters specifically set out in r 7.36(2) of the rules. Having regard to the matters which have been raised by the defendants, it seems to me to be appropriate that the referral be limited to the plaintiff obtaining advice in relation to the prospects of success of the proceedings. It will be evident from the transcript of the proceedings today that I have made it clear to the plaintiff that this case must proceed at the earliest possible opportunity. I am satisfied that he understands that the fact that I propose to make the order he seeks does not, in any way, guarantee that he will be provided with legal assistance. I reiterate that whatever the outcome of the referral might be, the case must go ahead at the first available opportunity thereafter.

ORDERS

7. Accordingly, for those reasons I make the following orders:

1. The hearing of the notices of motion presently listed before me on 30 June 2022 is vacated;

2. Pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) and in circumstances where I am satisfied that it is in the interests of the administration of justice to do so, I order that the plaintiff be referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance, such legal assistance to be limited to obtaining preliminary advice in relation to the prospects of success in the proceedings brought by the plaintiff;

3. I list the matter for further directions before me at 9.15am on 15 July 2022; and

4. I reserve the question of the costs.

Decision last updated: 21 July 2022