Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lane v Northern NSW Local Health District (No 2) [2014] NSWCA 32
• Hearing dates: 24 February 2014
• Decision date: 24 February 2014
• Before: Basten JA

Decision

(1) Both the motions for pro bono assistance and vacation of the hearing date refused.

(2) The costs of the motions are to be the respondent's costs in 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: PRACTICE AND PROCEDURE - interlocutory application - vacation of hearing date - whether need to amend notice of appeal - unavailability of applicants' support person - whether need to take further steps to establish the competency of the appeal - consequence of late application; PRACTICE AND PROCEDURE - interlocutory application - application for referral for pro bono legal assistance - applicants lacking means to obtain legal assistance - attempts to obtain legal aid - proceedings largely turning on factual issues - consequence of late application - Uniform Civil Procedure Rules 2005 (NSW), r 7.36
• Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.36
• Category: Interlocutory applications
• Parties: Deirdre May Lane (First Applicant); Elizabeth Helen Lane (Second Applicant); Northern NSW Local Health District (Respondent)
• Representation: Counsel: Applicants self-represented; Mr R Sergi (Respondent); Solicitors: Applicants self-represented; Curwoods Legal Services Pty Ltd (Respondent)
• File Number(s): CA 2013/54612

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2013-02-15 00:00:00
• Before: Williams DCJ
• File Number(s): DC 2010/99555; DC 2010/99556

Judgment

1 BASTEN JA: This hearing involves further interlocutory motions in a matter which is listed for hearing on 28 February 2014 before this Court. The appeal relates to a judgment delivered in the District Court on 15 February 2013. The notice of appeal was filed in a timely fashion in May 2013. There have been minor amendments to it thereafter but none of present concern. The appellants seek to vacate the hearing on three main bases. One is that following the last directions hearing they are concerned that they may need to amend the notice of appeal (and in particular ground 11) in order to provide more specificity. That primarily relates to the remarks that I made in the course of the last hearing to the effect that in challenging the unavailability of certain documents they were, in effect, seeking to challenge an order of Blanch J setting aside a subpoena which they had sought to have issued.

2 That issue is now understood by both parties and the only material which will need to be put before the Court will be the subpoena and any reasons that Chief Judge Blanch gave, if that material is not already in the appeal papers. I do not think that it is necessary that there be an amended notice of appeal to deal with that point. Mr Sergi, who appears for the respondent, says that he is confident that he will be able to deal with the arguments that may be raised in that respect at the hearing of the appeal.

3 The second matter on which reliance is placed is that at trial the appellants had available to them the support and assistance of a general practitioner, and I am told obstetrician, Dr Deirdre Little, who also assisted them with preparing aspects of their case, I infer relating to the medical matters which are relevant to the claims made. She, I am advised, will not be available to assist the applicants on the date of the hearing or the day before due to a commitment of some long standing. Much as it is valuable for people who need assistance to run their cases in this Court to have support available to them in the Court, the Court will not at a late date vacate a hearing because it has become known to a party that a person who was to be relied upon is not going to be available. That is a matter which has apparently been known, at least to Dr Little, for several months.

4 The third matter is one in respect of which the appellants seek to place evidence before the Court. It relates to the amount in issue in the proceedings and whether or not the notice of appeal is competent. This was a matter which Mr Sergi raised on the last occasion while accepting that he had made no objection to the competency of the appeal. I advised the appellants of the nature of the issues which arise in respect of appeals and cases requiring leave to appeal to this Court. I noted that they had two courses available to them. One was to file an affidavit which indicated that the amount in issue was, on the face of it, able to be assessed at an amount in excess of the floor, which is $100,000.

5 In the alternative they would be entitled to file an application seeking leave to appeal which could be dealt with on the day when the appeal was heard. It is not necessary for them to take either of those steps. The Court will deal with the matter on the materials before it as it thinks fit and in the light of submissions which it hears. Accordingly, I do not propose to vacate the hearing to allow further steps to be taken in that regard.

6 There is a separate notice of motion asking the Court to refer the matter and the appellants to the Registrar in order to obtain pro bono assistance under Uniform Civil Procedure Rules 2005 (NSW), r 7.36. In particular, I am told that they seek help with the formulation of appropriate appeal grounds. There are a number of matters which need to be addressed for the purposes of a referral under r 7.36. One is that the appellants have no means to obtain legal assistance. I am satisfied that that is the case. They so state in their affidavit and there is no material before me which would cause me to doubt that.

7 They also say that they have sought assistance via the normal channels of application to the Legal Aid Commission and by seeking assistance from the Law Society and the Bar Association. Matters involving personal injury and in particular medical negligence do not have a high priority, I appreciate, with respect to legal aid, in part because where there is a meritorious claim there are usually practitioners who are willing to undertake the matter on a speculative basis, that is relying on success in the proceedings for recovery of their fees. Nevertheless, I accept that for the purposes of the rule, attempts have been made to obtain legal assistance outside the scheme and they have failed.

8 The Court is also required to take into account the nature and complexity of the proceedings together with any other matter that the Court thinks appropriate. This matter, as I presently understand it, is one which turns almost entirely upon an assessment of the factual situation, the matters of fact being well understood to the appellants. In my view this is not an appropriate case to be referred for pro bono assistance. It is true that in every case this Court benefits from the availability of professional legal assistance, however it is not always available and there are limits to the cases in which this Court can impose upon members of the Bar to provide assistance without return by way of fee.

9 A further factor which is influential in this case is twofold. First, I infer from the application to vacate so that Dr Little can be present that the appellants do not wish to have counsel represent them. Rather they are seeking assistance to make sure that all matters are properly in order, including necessary amendments to the notice of appeal, before the appeal is heard. For that more limited purpose, the application for assistance is extremely late in the day and involves matters which should have been foreseen at an earlier stage. Secondly, as already explained, to the extent they arose during the last hearing, they do not require further formal steps to be taken.

10 In any event, the whole application is belated. The processes of this Court are not assisted by having hearings vacated at short notice. The result is that no other litigants can have their cases heard in the available time and that the case from the vacated hearing will need to be placed in a list to be heard at a later date. That has two consequences; one is that some other litigants will have their matters removed from the list or heard later than they would otherwise have expected. The second is that the other party to the proceedings (the respondent in this case), will incur significant costs as a result of having, one expects, fully prepared the matter which is to be heard later this week. These are costs of preparation which would need to be repeated were the matter to be listed for hearing in what would undoubtedly be several months time.

11 Because referral for pro bono assistance would inevitably lead to vacation of the hearing date, because I would not be minded to make such a referral in any event, and because the other reasons for vacating the hearing date are not sufficient to take that course without reference to the pro bono application, both the application for pro bono referral and for the vacation of the hearing date will be refused.

12 As to costs, I will make the same order that I made on the last occasion which means that the costs of the motions are to be the respondent's costs in the appeal. The matter remains in the list for Friday 28 February and it will go ahead on that day.

13 The Court orders:

(1) Both the motions for pro bono assistance and vacation of the hearing date refused.

(2) The costs of the motions are to be the respondent's costs in the appeal.

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Decision last updated: 26 February 2014