Sunol v Collier (No 2)

[2013] NSWCA 196

Court of Appeal

New South Wales

Case Title:

Margan v NSW Director of Public Prosecutions

Medium Neutral Citation:

[2013] NSWCA 196

Hearing Date(s):

24 June 2013

Decision Date:

27 June 2013

Before:

Meagher JA

Decision:

(1) Order that the applicant be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for advice and representation in relation to his application for leave to appeal to this Court.

(2) No order as to costs.

[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 order for referral to legal practitioner on Pro Bono Panel - applicant suffering cognitive difficulties affecting ability to present oral argument - whether referral in interests of administration of justice - application granted

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 7.36
Anti-Discrimination Act 1977, s 49ZTA

Cases Cited:

Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257
M v Director General, Department of Family and Community Services [2013] NSWCA 118

Category:

Procedural and other rulings

Parties:

Simon Margan (Applicant)
NSW Director of Public Prosecutions (Respondent)

Representation

- Counsel:

Counsel:
In person (Applicant)
Ms R Giurastante (Respondent)

- Solicitors:

Solicitors:
In person (Applicant)
Crown Solicitor's Office (Respondent)

File Number(s):

2013/70427

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Grove AJ

- Date of Decision: 

07 February 2013

- Citation:

Simon Margan v NSW Director of Public Prosecutions and Attorney General of New South Wales [2013] NSWSC 44

- Court File Number(s):

2012/00103496

JUDGMENT

1. MEAGHER JA: The applicant seeks leave to appeal from a decision of Grove AJ dismissing his claim for a declaration that certain advice tendered by the Director of Public Prosecutions to the Attorney General was incorrect and directions that it should not be acted upon. That advice concerned whether proceedings for the offence of inciting hatred under s 49ZTA(1) of the Anti-Discrimination Act 1977 were required to be commenced no later than six months from when the offence was alleged to have been committed. The alleged perpetrator of that offence, a Mr Manias, was subsequently charged with assault causing actual bodily harm to persons including the applicant, and, following pleas of guilty, was convicted of that and other charges. The applicant has suffered significant injuries as a result of that assault. Those injuries include persisting cognitive difficulties as a result of which he experiences problems with his speech and has an intermittent stutter.

2. The applicant is a law graduate, but has not obtained his law practising certificate. He represented himself before the primary judge and does so in his application to this Court. He seeks an order under the Uniform Civil Procedure Rules 2005, r 7.36 that he be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for representation in the conduct of his application for leave to appeal.

3. He says that his injuries, including his speech impediment, prevent him from orally presenting his case clearly and coherently. That this is so was apparent in the short period that the applicant appeared before me. He had difficulties of the kind described although, as the discussion proceeded, those difficulties diminished slightly after he appeared to become more relaxed.

4. The stated purpose of r 7.36 is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain such assistance. For the latter reason it is relevant to consider the means of the litigant and his or her capacity to obtain legal assistance outside the scheme. The applicant is currently on the Centrelink Disability Support Pension as a result of the injuries he has sustained and says in his affidavit that he cannot afford legal representation. Although he has not made an application for legal aid in respect of the proceeding in this Court, it is unlikely, having regard to the nature of the proceedings that he brings, that he would qualify for such a grant.

5. It is also relevant to consider the nature and complexity of the proceedings, the kind of assistance that might be provided, the extent to which such assistance would be likely to advance the just, quick and cheap resolution of the proceedings and the apparent merits of the litigant's case: Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 at [3]-[7] per Basten JA; M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [21] per Basten and Barrett JJA and Bergin CJ in Eq.

6. The issues raised by the Mr Margan's application for leave to appeal do not appear to be complex and the Court presently has the benefit of his written arguments in respect of those issues. On a brief consideration of those issues and the reasons of the primary judge, it is not obvious that his Honour has erred.

7. Nevertheless, from the applicant's perspective, it is clearly preferable that he has legal assistance because of the difficulties he has in presenting oral argument clearly and coherently. It is also likely to be of assistance to the Court to have short oral argument in which there are opportunities for the Court to address any questions it may have to the applicant's counsel or solicitor.

8. In the unusual circumstances of this case, notwithstanding my reservations about the merits of the applicant's claim, I am satisfied that it is in the interests of the administration of justice that the applicant have the legal assistance of a barrister or solicitor at the short hearing of his application for leave to appeal. In exercising my discretion to refer the applicant to the Registrar I am conscious of the need to exercise caution because of the limited and valuable nature of the resource which is being drawn upon.

9. I order that the application for referral to the Pro Bono Panel be granted and refer the applicant to the Registrar for referral to a legal practitioner, preferably a barrister, on the Pro Bono Panel for advice and representation in relation to his application for leave to appeal. I have included advice in the referral so that the applicant has the opportunity to assess his position in relation to the application to this Court before that application is heard.

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