Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Rouvinetis v Knoll [2012] NSWCA 125
• Hearing dates: 30 April 2012
• Decision date: 30 April 2012
• Before: Basten JA

Decision

Pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) I refer Mr Rouvinetis to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance with the appeal.

[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 - civil - parties - representation - application for referral to legal practitioner on Pro Bono Panel - appeal raises issues concerning the propriety of the manner of conduct of the trial - whether in the interests of administration of justice that applicant be referred for legal assistance - whether applicant's previous legal representative ceased to act because applicant would not accept his advice - whether applicant would accept advice of legal practitioner to whom he is referred - whether applicant has capacity to obtain other legal assistance - interest in open justice - Uniform Civil Procedure Rules 2005 (NSW), r 7.36
• Legislation Cited: Supreme Court Act 1970 (NSW), s 101; Uniform Procedure Rules 2005 (NSW), r 7.36; Pt 7
• Category: Procedural and other rulings
• Parties: Evangelos Rouvinetis - Applicant; David Knoll - First Respondent; Paliguard Pty Ltd - Second Respondent
• Representation: Counsel: Applicant in person; Solicitors; Applicant self-represented; Holman Webb Lawyers First Respondent; Lee & Lyons Lawyers - Second Respondent
• File Number(s): CA 2012/25352; CA 2008/288048

Decision under appeal

• Jurisdiction: 9111
• Citation: Rouvinetis v Knoll & Ors [2011] NSWSC 1352
• Date of Decision: 2011-11-10 00:00:00
• Before: Fullerton J
• File Number(s): SC 2008/288048

Judgment

1 BASTEN JA: On 9 April 2008, Mr Rouvinetis was allegedly assaulted and falsely imprisoned in the grounds of Sydney Girls High School in the course of a function held by the Jewish Board of Deputies at that location. He brought a claim against the present respondents and others in negligence, assault and false imprisonment. That claim was heard by Fullerton J in the Common Law Division in September 2011. On 10 November 2011 her Honour gave judgment rejecting the claims and in favour of the various defendants.

2 The appellant, Mr Rouvinetis, filed a notice of appeal on 23 November 2011. It was purportedly filed as of right although it was not accompanied by an affidavit demonstrating that it satisfied the threshold of a claim worth $100,000 or more as provided in s 101(2)(r) of the Supreme Court Act 1970 (NSW). Mr Rouvinetis also filed an application for leave to appeal which may have resulted from the filing by the respondents of a notice of objection to the competency of the appeal.

3 Mr Rouvinetis came before Giles JA in this Court on 12 December 2011 seeking appointment of a lawyer to provide pro bono assistance to him as an unrepresented litigant. Justice Giles declined to make such an appointment. He gave brief reasons in which he indicated that he was not satisfied that Mr Rouvinetis would take the advice of the person so appointed. In other words, if advised that his appeal had no prospects of success, he would not take the advice that he should abandon the appeal. Justice Giles thought that in the circumstances the appointment would be a futility and he should not make such an appointment.

4 On 23 April 2012, Beazley and Barrett JJA heard a summons seeking leave to appeal and various related matters. To the extent that leave was sought, that leave was refused. However, the objection to the competency of the original appeal was not determined on that occasion. I understand that it is the respondent's view that it should be dealt with at the hearing of the appeal which I am told is listed for 30 May 2012. On that basis, Mr Rouvinetis still has before the Court an appeal brought as of right. Whether he is entitled to maintain it and whether, if he is, he would succeed in it are not matters for consideration today. Given that there will be a hearing of the appeal, there is something to be said for the proposition that it would be in the interests of the administration of justice for Mr Rouvinetis to be provided with a referral for legal assistance.

5 There are two other matters which must be taken into account. The first is that at some stage prior to the trial he sought and obtained legal assistance from Mr Gormly SC. The circumstances in which that occurred were not known to Beazley JA when she gave judgment on 23 April and they are not known to me. Mr Rouvinetis appeared unrepresented at the trial. He informed me that there were reasons why Mr Gormly could not continue to act for him; he says it was because Mr Gormly was an associate of Rothman J, who was a defendant in the proceedings. It is sufficient that I accept that Mr Gormly did not cease acting because Mr Rouvinetis would not accept his advice.

6 The second matter is that Mr Rouvinetis takes exception before me to the reason given by Giles JA for refusing to provide a referral last December. He says that if he were advised that he had no case he would, as he put it, put his papers in his briefcase and go home. I take that to mean that he would accept the advice.

7 In the circumstances, it seems to me that it is in the interests of the administration of justice that, if possible, legal assistance be obtained for Mr Rouvinetis for the purposes of the appeal listed later this month. I am satisfied that he does not have the means to obtain paid assistance. I am also satisfied that he does not have the capacity to obtain assistance outside the scheme provided for in Pt 7, Div 9 of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR").

8 The nature and the complexity of the proceedings may be a matter in question. It appears to be largely a matter of factual dispute as to what happened on the evening in question. However, the notice of appeal appears to raise other issues concerning the propriety of the manner in which the trial was conducted. It is always a matter of concern if allegations are made as to such matters. It is therefore desirable that in the interests of open justice, such matters be dealt with as amply as they can be and with the assistance of legal representation if at all possible. I am therefore satisfied that the nature of the proceedings, if not their complexity, is a factor to be taken into account.

9 Mr Rouvinetis is fluent in English but he is not legally trained. He will obviously have difficulty in presenting his case to the Court. On the basis that he has a case to present, and I am not persuaded at the moment that such a case is completely unarguable, he should be given the opportunity for further assistance. Accordingly I propose to make an order pursuant to UCPR r 7.36 referring Mr Rouvinetis to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance in respect of his appeal, purportedly brought as of right. I make that order.

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Decision last updated: 04 May 2012