Streator v Commissioner of Fines Administration

[2014] NSWSC 1866

Supreme Court

New South Wales

Medium Neutral Citation:	Streator v Commissioner of Fines Administration [2014] NSWSC 1866
Hearing dates:	18 December 2014
Decision date:	18 December 2014
Jurisdiction:	Common Law
Before:	Hamill J (as Duty Judge)
Decision:	I make an order referring the litigant to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance.
Catchwords:	CIVIL LAW - pro bono legal assistance - relevant considerations - means of plaintiff - availability of legal representation - complexity of the matter - competent and determined law firm representing defendant
Legislation Cited:	Fines Act 1996 (NSW) Uniform Civil Procedure Rules
Category:	Procedural and other rulings
Parties:	Dean Michael Streator (Plaintiff) Commissioner of Fines Administration (Defendant) (No appearance)
Representation:	Counsel: Plaintiff - not respresented Defendant - no appearance Solicitors: Plaintiff - not respresented Defendant - no appearance
File Number(s):	2014/196869
Publication restriction:	Nil

ex tempore Judgment

1. On 3 July 2014 Dean Michael Streator (the plaintiff) commenced proceedings in this Court by summons. He seeks to appeal against an order made in the Wollongong Local Court on 5 June 2014. The details of the proceedings before the Local Court do not need to be detailed but a short transcript shows some difficulties that the plaintiff had in being heard in the Local Court because he was unrepresented.

1. The case concerns five infringement notices for a variety of offences allegedly committed by the plaintiff. These offences were subject to various infringements and enforcement notices which culminated in the appearance on 5 June 2014.

1. The summons seeks orders that the appeal be allowed and that the judgment be set aside. It identifies appeal grounds involving asserted errors of law which might generally be described as natural justice or procedural fairness grounds and matters involving the interpretation of a statute and in particular the Fines Act 1996 (NSW).

1. The matter before me, however, arises from a Notice of Motion filed on 5 December 2014 wherein the plaintiff seeks orders pursuant to Part 7 Rule 36 of the Uniform Civil Procedure Rules (UCPR), that is, an order referring him for assistance under the pro bono panel scheme as identified in that part of the UCPR. Such a referral can be made by order if it is in the interests of the administration of justice for the Court to do so: r [7.36(1)] UCPR. Matters that can be taken into account are the means of the litigant, the capacity of the litigant to obtain legal assistance outside of the scheme, the nature and complexity of the proceedings and any other matter that the Court considers appropriate: see r [7.36(2)] UCPR.

1. The various factors that have been identified by the plaintiff in the course of discussions this afternoon satisfy me that it is appropriate to make an order for referral.

1. He has told me, and I accept from him, that he is a final-year law student. In fact, he graduated yesterday and is set to undertake a Practical Legal Training course. As such, he only receives $744.49 per fortnight by way of Austudy. His partner, who he says is suffering from Post-Traumatic Stress Disorder for reasons that I need not articulate, receives benefits as well but she cannot work. He has four children aged 10, 8, 6 and 2. One of those children has a chronic illness. The means of the litigant point towards the making of an order for referral: [7.36(2)(a)].

1. As to subparagraph (b) of subsection (2) - the capacity of the plaintiff to obtain legal assistance outside the scheme - he tells me (and I accept) that he has made application to the Legal Aid Commission which has indicated that the Commission does not fund this kind of litigation. My experience accords with that proposition.

1. He has also sought assistance through the Public Interest Legal Clearing House which initially offered him assistance but then, because of a change in their funding beyond his control, was unable to help him.

1. He tells me that he has made several 'phone calls to various law firms and that he has not been successful in obtaining representation. He estimates that the cost of retaining a junior barrister, at what I must say seems fairly modest fees, would be $3,000. I expect the expenses would be far more substantial than that from what I know of what competent barristers charge. I accept that his means and his commitments would make it impossible to fund this litigation privately.

1. On one view, the litigation is not particularly complex but it does, as he tells me, involve interpretation of statutes which are often difficult questions. The nature of the proceedings possibly militates against the making of an order for referral because ultimately the amount of the fines in question is not a particularly large amount. However, he is to be opposed in this litigation by a prominent firm of attorneys who appear for the Commissioner of Fines Administration (the defendant). They will no doubt conduct the litigation with their usual efficiency and determination and that is a matter that should be taken into account. That firm did not appear to assist me on this application even though, as I understand it, they had made an appearance before the Registrar earlier in the day. I take it that their position on this application is neutral.

1. Whilst the matter does not involve an enormous amount of money, it is certainly an important matter to this plaintiff and potentially raises important questions about procedural fairness to be afforded to unrepresented litigants and possibly important questions of interpretation of the Fines Act. I simply do not know at this stage of the proceedings whether such considerations genuinely arise. However, I am accepting that these things arise based on what the plaintiff has told me and because he appears to speak in earnest and is aware of the importance of speaking frankly to the Court as a person who seeks to practice law.

1. For those reasons I am satisfied that is appropriate to make the order and accordingly I make an order referring the litigant to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance.

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Decision last updated: 23 December 2014