Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Carnemolla v Adelaide Bank Ltd [2012] NSWCA 152
• Hearing dates: 14 May 2012
• Decision date: 14 May 2012
• Before: Whealy JA

Decision

1. The matter is adjourned to 28 May at 2.15pm, as are the outstanding motions.

2. Costs reserved.

[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: PRACTICE AND PROCEDURE - interlocutory application - Uniform Civil Procedure Rules 2005 (NSW) r 7.36 - self-represented applicants - applicants of limited means - complex proceedings - application for referral to the Pro Bono Panel - order granted in the interests of the administration of justice.
• Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) - r 7.36
• Category: Interlocutory applications
• Parties: Lucia Carnemolla (Applicant in 12/022709 and 12/081298); Sebastian Carnemolla (Applicant in 12/081298); Adelaide Bank Limited (Respondent in 12/022709 and 12/081298)
• Representation: Counsel: In person (Applicants); G.A. Sirtes SC (Respondent); Solicitors: In person (Applicants); MacGillivrays Solicitors (Respondent)
• File Number(s): 2012/022709, 2012/081298

Decision under appeal

• Jurisdiction: 9111
• Citation: Bendigo and Adelaide Bank Ltd v Carnemolla
• Date of Decision: 2011-05-26 00:00:00
• Before: Hislop J
• File Number(s): 2007/263386

Judgment

Ex tempore judgment

1 WHEALY JA: In this matter there are three motions before the Court, and a further motion has been foreshadowed. The proceedings arise out of a decision given by his Honour Justice Hislop in the Common Law Division of the Supreme Court.

2 From what I can gather from the material that has been placed before me, it seems that his Honour gave a decision on 26 May 2011 in which he made orders for the recovery of possession of land which was described as Lot 1 Strata Plan 63720, the property being known as xxxxx xxxxxx xxxxxx Smithfield. Mr and Mrs Carnemolla are the owners of that land.

3 His Honour granted leave for the issue of a writ of possession in respect of that land but stayed the execution of the writ of possession until 30 January 2012. His Honour made other orders and entered other verdicts of judgments, which it is not necessary for me to detail in these brief reasons.

4 Since that time there have been a number of applications before judges of this Court, but the present position is, as I understand it, Mr and Mrs Carnemolla (who are representing themselves) have lodged an appeal to this Court. Again it is not necessary for me to detail the complexity of procedural matters that are the background to this appeal. It is sufficient to mention that there was originally filed a summons seeking leave to appeal, although it appears that leave was not required.

5 The draft notice of appeal itself is very long and complex and not easy to understand. It is not surprising, in those circumstances, that the successful plaintiff in the proceedings before Hislop J has brought a motion seeking in effect to strike out the appeal as an abuse of process of the Court. However, for the reasons I will give, it is not appropriate to deal with that motion today. Rather, I have determined that it should be stood over to await the future conduct of this appeal. In so doing I recognise the obvious prejudice to the plaintiff, and the fact that there has been a significant passage of time that has passed since the judgment was entered. It is clear that the bank has legitimate financial concerns arising out of the delay.

6 The second motion before me is dated 3 April 2012. Mr and Mrs Carnemolla, acting for themselves, have sought the production of an original application and a mortgage document. I have not examined the motion in a detailed manner at this stage, and it may be that it is dealing with the same subject as a further proposed motion mentioned today in which Mr and Mrs Carnemolla are seeking to obtain mortgage documents in respect of a property other than the property the subject of the writ of possession on the basis that they will ultimately claim that this document was a forgery, and they wish the opportunity to have a forensic examiner look at it so that evidence could be obtained, presumably relevant in some way to the appeal. Again, once more, I do not think it is appropriate to deal with that proposed motion today. I propose to stand it over with the other motions that I have mentioned.

7 That leaves me with the application by Mr and Mrs Carnemolla in the final motion. This is an application for a referral to the Pro Bono Panel. Rule 7.36 UCPR makes provision for referral of a matter to a barrister or solicitor if the Court is satisfied that it is in the interests of the administration of justice to so refer the litigants for that purpose. The rules provide that the Court may take into account the means of a litigant, the capacity of a litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings, and any other matter that the Court considers appropriate.

8 In my view, there is sufficient material before me to satisfy me that it is in the interests of the administration of justice to refer the litigants here to the Pro Bono Panel. It must be presumed I think that their means are extremely limited and there is evidence before me to that effect in an affidavit sworn by Mr Carnemolla.

9 Secondly, in the material I have examined, it appears that Legal Aid has been refused. Thirdly, it is apparent that these proceedings justify referral in terms of their complexity and of the need to simplify the proceedings so that what appears to be an inordinate complexity, may be made simpler.

10 I can see no reason to refuse the application and accordingly I order that Sebastian and Lucia Carnemolla, as the appellants in the present proceedings in this Court, be referred to the Registrar for referral to a barrister on the Pro Bono Panel for legal assistance in the conduct of this appeal. That legal assistance is confined in the first instance to an examination of the Notice of Appeal, to the taking of instructions from Mr and Mrs Carnemolla, and to counsel's attendance before this Court with a view to informing the Court whether it is possible to prepare an amended Notice of Appeal and to provide the Court with details as to how quickly that can be done. Whether the pro bono assistance is to be taken any further than that is something that must await the outcome of the initial referral which is the subject of this order.

11 In those circumstances I direct that a copy of these reasons be given forthwith to the Registrar and the Registrar be asked to exercise expedition in contacting the Pro Bono Panel and obtaining assistance for Mr and Mrs Carnemolla.

12 The matter is adjourned to 28 May at 2.15pm, as are the outstanding motions. Costs reserved.

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Decision last updated: 24 May 2012