Introduction
The Supreme Court of New South Wales in IMBK Pty Ltd v Zheng Tan [2016] NSWSC 1175 (“IMBK”) has refused to refer a litigant to the registrar for referral to a lawyer on the Pro Bono Panel for legal assistance under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Although the Court found that, having regard to the nature and complexity of the proceedings, it was in the interests of the administration of justice that the litigant have legal assistance, the Court refused to make the order because the evidence of the defendant’s means and his capacity to obtain legal assistance outside the statutory scheme was inadequate.
Rule 7.36
Rule 7.36 of the UCPR relevantly provides:
“(1) If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
(2) For the purposes of subrule (1), the court may take into account:
(a) the means of the litigant, and
(b) the capacity of the litigant to obtain legal assistance outside the scheme, and
(c) the nature and complexity of the proceedings, and
(d) any other matter that the court considers appropriate.”
Rule 7.36 is contained in Div 9 of Pt 7 of the UCPR which establishes a scheme for court appointed pro bono legal assistance. The purpose of Div 9 is to facilitate the provision of legal assistance to litigants who are otherwise unable to obtain assistance, where it is in the interests of the administration of justice (r 7.33(2)). However, the provision of such legal assistance is not intended to be a substitute for legal aid (r 7.33(3)).
Nothing in Div 9 requires the court to make a referral, or to consider a litigant’s case for referral, under Div 9 (r 7.33(5)) and, if a referral is made, it does not mean that the court has formed an opinion on the merits of a litigant’s case (r 7.33(4)).
IMBK
The substantive proceedings in IMBK related to an agreement between the plaintiff and the defendant whereby the plaintiff was to transfer a sum of money in Australian currency to the defendant in Australia in exchange for the defendant paying a sum of money in Chinese currency, the Renminbi (RMB), to the plaintiff in China. The precise terms of the agreement and whether it had been performed were in dispute. The plaintiff claimed that it had paid to the defendant the agreed amount of Australian currency in accordance with the agreement alleged by it to have been made between the parties but that the defendant had not paid the agreed amount of RMB. The defendant, on the other hand, claimed that his father-in-law in China, on his behalf, had paid the amount of RMB which was required to be paid in accordance with the agreement alleged by him to have been made but that he had not received payment of the full amount of the Australian currency to which he was entitled.
Initially, the defendant had had legal representation in the proceedings but had ceased to be legally represented. He made an application for an order under r 7.36 of the UCPR referring him to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.
White J heard the application in the Equity Duty List.
His Honour was satisfied that it would be desirable for the defendant to have legal assistance in the proceedings, but was not satisfied that the defendant’s affidavit in support of his application was sufficient to justify making an order. This was because the affidavit did not describe all of the defendant’s assets or liabilities and did not address the question as to whether the defendant could be funded by third parties, such as his father-in-law. His Honour directed the defendant to provide a further affidavit.
Further evidence was provided by the defendant who claimed, amongst other things, that:
- he owned no property or a motor vehicle “under my name”;
- he and his wife and children lived in an apartment which his father-in-law had purchased for his wife and which was subject to a mortgage; and
- he and his family were being supported by his family in China and by his father-in-law who were wiring them money from China.
No details of the value of the wife’s apartment or the extent of the mortgage were given. There was no evidence of any attempt to obtain legal representation otherwise than through the Law Society or Legal Aid.
White J considered that the further evidence was also inadequate, stating at [17]:
“I am satisfied having regard to the nature and complexity of the proceedings that it is in the interests of the administration of justice that the defendant have legal assistance. But the evidence of the defendant’s means and his capacity to obtain legal assistance outside the scheme is inadequate. He has not given adequate evidence of his assets and liabilities, including whether any assets are held for him in someone else’s names. He has not given evidence of his wife’s assets or whether she is prepared to make them available for his use. He has not given evidence of his income. He has not explained how the moneys received from his father-in-law have been applied. He has not shown that he cannot obtain legal representation otherwise than through Legal Aid or the Law Society’s ‘service scheme’.”
Accordingly, his Honour concluded that he was not satisfied that it was in the interests of the administration of justice that the defendant be referred to the registrar for referral to a lawyer on the Pro Bono Panel for legal assistance and dismissed the application.
