Streater v Commissioner of Fines Administration

[2016] NSWSC 229

Supreme Court

New South Wales

Medium Neutral Citation:	Streater v Commissioner of Fines Administration [2016] NSWSC 229
Hearing dates:	11 March 2016
Date of orders:	11 March 2016
Decision date:	11 March 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	Application for referral of the matter for pro bono assistance refused
Catchwords:	LEGAL AID – pro bono assistance – second application within three years – law graduate seeking to challenge a magistrate’s refusal to waive a $99 parking fine – special reasons – errors of fact or law not sufficient to constitute special reasons – limited resources of pro bono schemes – interests of justice
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Aboriginal Housing Company Limited v Kaye-Engle (No. 2) [2014] NSWSC 717 Jess v Scott [1986] 12 FCR187 Kelly v Mosman Municipal Council [2010] NSWCA 370 Neale v Commonwealth Bank of Australia Limited [2015] NSWCA 136 Serobian v Commonwealth Bank of Australia [2010] NSWSC 1165
Category:	Procedural and other rulings
Parties:	Dean Michael Streater (Plaintiff) Commissioner of Fines Administration (Defendant)
Representation:	Counsel: In person (Plaintiff) No appearance (Defendant)   Solicitors: Unrepresented (Plaintiff) Hunt & Hunt (Defendant)
File Number(s):	2015/316808

Judgment

1. The Applicant applies for pro bono assistance in relation to proceedings commenced by him in this Court in relation to an appeal from the Albion Park Local Court and a decision made there on 17 September 2015. The proceedings concern a parking fine of $99.

2. Rule 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) provides that if the Court is satisfied it is in the interests of the administration of justice the Court may refer a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. Subsection (2) sets out four requirements that may be taken into account. They are 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 matters that the Court considers appropriate. Subsection (2A) provides:

The Court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the Court is satisfied that there are special reasons to justify a further referral.

3. The Applicant has recently completed a law degree. His affidavit that was read in support of the motion indicates, however, that he has not managed to obtain employment and appears to be living off what is now called an NEIS benefit providing funds of $523.40 per month. He is in a new relationship with his current partner and between them they have the full-time care of four children aged between three and eleven years. His partner has suffered certain matters which have led to post traumatic stress disorder and she has been unable to return to full-time work.

4. I am satisfied that the Applicant shows that his means are such that, if all other things were equal, he would be likely to be referred to a barrister or solicitor on the pro bono scheme.

5. I am prepared to accept that by the nature of the proceedings and particularly the amount involved that he is not able to obtain legal assistance outside the scheme.

6. The Applicant submits that the legal principles involved in the appeal are of sufficient complexity to justify why he should be given pro bono referral.

7. On 18 December 2014 he was referred to the Pro Bono Panel by Hamill J in relation to a challenge made to a Magistrate's decision in relation to this parking fine and also a fine for the offence of driving whilst using a hand-held mobile phone, the penalty for which was $258.

8. That appeal from the Magistrate came before Bellew J. Justice Bellew gave judgment in the matter on 16 October 2015 and remitted the proceedings in relation to the penalty for the use of a mobile phone to the Local Court. Shortly before that judgment I am told that the jurisdictional issue in relation to the parking fine was resolved between the Applicant and the Commissioner of Fines Administration so that the parking matter returned to the Local Court. It was the judgment of the Local Court after its return that is the subject of the present summons.

9. Because of that prior referral within three years, the Applicant must show that there are special reasons to justify further referral. He says that the errors made by the Magistrate and the principle that is involved is a matter of significance to satisfy the requirement of special reasons.

10. I had reason to consider the issue of special reasons in Aboriginal Housing Company Limited v Kaye-Engle (No. 2) [2014] NSWSC 717. I there accepted what Hallen AsJ, as His Honour then was, had agreed in Serobian v Commonwealth Bank of Australia [2010] NSWSC 1165 was the appropriate test as to what constituted "special reasons". His Honour quoted from the Full Court of the Federal Court in Jess v Scott [1986] 12 FCR187 at 195. There the Full Court of the Federal Court said that something must be a case out of the ordinary to satisfy it being a special reason or coming within the category of "special reasons".

11. The Applicant has taken me to some portions of the transcript before the Magistrate to demonstrate why the errors made by the Magistrate were of significance.

12. I am not at all satisfied that the errors that are said to be made, accepting that they were made, take this case out of the ordinary to justify a finding of special reasons. All that is pointed to are errors made by the Magistrate in the matter. That is a necessary requirement for an appeal to this Court in any event. Merely to show errors of fact or law will not of itself amount to special reasons.

13. Quite apart from the fact that I do not consider there are any special reasons to justify a further referral, I do not consider that it is in the interests of justice for this Applicant to be referred to the Pro Bono Panel.

14. In Neale v Commonwealth Bank of Australia Limited [2015] NSWCA 136 Leeming JA in the Court of Appeal discussed referrals to the Pro Bono Panel in terms of the demands that are made upon that Panel for legal assistance. He made reference, for example, to what was said in Kelly v Mosman Municipal Council [2010] NSWCA 370 at 19 where Campbell JA said that:

Any orders for pro bono legal assistance need to be made bearing in mind that the resources of the Pro Bono Panel are limited, that the lawyers whose names appear on the Pro Bono Panel provide their services voluntarily, and that the court should ask them to give up their time and exercise their skill only in circumstances where there is an appropriate reason, for the overall administration of justice, to make that request.

15. In his Summons and affidavits the Applicant demonstrates some sophistication in his understanding of legal principles associated with administrative appeals. The proceedings are in this Court, not because he was named as a defendant, but because he considers it appropriate to challenge a $99 fine, effectively, for the second time.

16. I see in my position as Possession List Judge the demand and need for Pro Bono assistance for persons against whom orders are sought for possession of their homes and for large sums of money. Where resources are limited, I can see no justification for concluding that it is in the interests of justice generally for a referral to be made to assist a law graduate who wishes to dispute a $99 parking fine.

17. The application is refused.

**********

Decision last updated: 14 March 2016