Phu v NSW Department of Education and Training [2011] NSWCA 119 (9 May 2011)

Last Updated: 25 May 2011

Court of Appeal New South Wales

Case Title:	Phu v NSW Department of Education and Training
Medium Neutral Citation:	[2011] NSWCA 119
Hearing Date(s):	9 May 2011
Decision Date:	09 May 2011
Jurisdiction:
Before:	Young JA
Decision:	Application for pro bono assistance dismissed. [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- Pro bono application- application for pro bono legal assistance for appeal from Administrative Decisions Tribunal Appeal Panel- assistance from Legal Aid refused on the merits- no solicitor on Law Society's panel willing to assist- Court required to consider the interests of justice- the interests of justice usually require a person with an arguable case to have the opportunity to put the matter before the Court- this has less weight in Court of Appeal than at first instance- case already heard before two administrative tribunals- Court takes into account whether there is a real chance of success but does not fully consider the merits- although applicant was in person, there was no sufficiently arguable case to support the grant of an order for pro bono assistance.
Legislation Cited:	Uniform Civil Procedure Rules, r 7.36
Cases Cited:	Chand v Railcorp (Young JA, 9 August 2010, unreported) Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602
Texts Cited:
Category:	Principal judgment
Parties:	Chi Chau Phu on behalf of Helen Phu (Applicant) NSW Department of Education and Training (Respondent)
Representation
- Counsel:	Counsel: Applicant in person C S Samuels (S) (Respondent)
- Solicitors:	Solicitors: Applicant self represented I V Knight, Crown Solicitor (Respondent)
File number(s):	CA 2010/423468
Decision Under Appeal
- Court / Tribunal:
- Before:
- Date of Decision:
- Citation:
- Court File Number(s)
Publication Restriction:

Judgment

1. YOUNG JA: This is an application for pro bono legal assistance in respect of an appeal from the Administrative Decisions Tribunal Appeal Panel. The applicant, on behalf of his daughter who is significantly disabled, alleged that there was wrongful discrimination against her by the Department of Education failing to provide her with a one on one teacher's aide at the special school which she was attending. The applicant appears in person. Ms Samuels of the Crown Solicitor's Office appeared for the Department.
   
2. The initial hearing in the Administrative Decisions Tribunal went against the applicant. He exercised his right of appeal and was represented before the Appeal Panel who affirmed the decision. The Appeal Panel said that the question before them was whether it was or was not reasonable in all the circumstances of the case to require the applicant's daughter to undertake her education in the absence of a one to one supporter and carer. The Appeal Panel was a little undecided as to whether that was a question of fact or a question of law. There was a suggestion before it that the original tribunal had asked the wrong question, but they did not accept that and they affirmed the decision below.
   
3. Mr Phu wishes to appeal to this Court; he needs leave to do so and he has an application for leave to appeal. He asks for pro bono legal assistance. He has endeavoured to get legal assistance through Legal Aid. Legal Aid has refused on the merits and the appeal was dismissed. The Law Society has indicated that there is no solicitor on its panel willing to assist.
   
4. Accordingly, even if this Court did order under Part 7 r 36 that the Registrar seek to find pro bono legal assistance, it is more likely than not that what would happen in this case is what happens in most cases, and that is that no lawyer is willing to take the case on virtually a no win no pay basis. In any event, it does not seem to me that the material in this case meets the requirements.
   
5. The rule requires this Court to consider the interests of justice. The interests of justice mean that a person with an arguable case usually should have the opportunity of putting the matter before the Court. However, that consideration has less weight in the Court of Appeal than at first instance because a person has already had the advantage of a hearing, in this case by two Administrative Tribunals.
   
6. The Court on an application for pro bono assistance does not consider whether it would or would not grant leave to appeal or allow the appeal so it does not deal fully with the merits of the application. It does, however, take into account whether there is a real chance of success: see Dafaalla v Concord Repatriation General Hospital [2007] NSWSC 602 and my decision in Chand v Railcorp (9 August 2010). [As Chand v Railcorp was not previously published electronically, it is appended hereto for information].
   
7. There is not sufficient material before me to enable me to say that the applicant has an arguable case and so grant the order. Accordingly, even though the applicant has shown lack of means, I must dismiss the application for pro bono assistance and I will return the papers.
   

[Ms Samuels has kindly offered to give Mr Phu the names of some people who might help him, but unfortunately the Court cannot]

***************************
APPENDIX

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

2009/298394

2010/79611

YOUNG JA

Monday 9 August 2010

CHAND v RAILCORP

Judgment

1 . YOUNG JA: The plaintiff has filed a notice of motion the order sought being "The Court of Appeal Registrar refers a pro bono barrister under Division 9 of Part 7 of the Uniform Civil Procedure Rules (UCPR) in the administration of justice. See attached affidavit for reasons."

2. Although the motion is only filed in 2010/79611, Ms Chand insists that her application is for matters 2009/298394 and 2010/79611 and is seeking pro bono assistance for her whole dispute with RailCorp. I will thus treat the motion as referring to both appeals.

3. The lead rule in Division 9 of Part 7 of the UCPR, rule 7.33 provides that legal assistance under this Division is not to be intended to be a substitute for legal aid, but its purpose 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 assistance. Rule 7.36 provides that if the Court is satisfied it is in the interests of the administration of justice it may refer a litigant to the Registrar for referral to a barrister or solicitor for legal assistance.

4. The cases that have fleshed out the meaning of the words "in the interests of the administration of justice" show that it is insufficient that the litigant shows that she cannot otherwise obtain legal assistance, ordinarily she must also show that the merits of her claim are such that it would be appropriate to make the order; see the cases referred to in Ritchie's Supreme Court Practice [7.36.5].

5. In my view, it is necessary to look at the merits of the application because the keystone of Division 9 of Part 7 of the Rules, is the administration of justice will be assisted by referring the litigant to a barrister or solicitor on the pro bono basis. Whilst it is not fatal to the application that legal aid may have been refused, see 7.33(3), the judge considering the order must be satisfied that it would further justice generally to make the order.

6. Unfortunately, experience shows that there are many litigants in person who cannot obtain legal assistance because when experienced lawyers look at their case the chances of success are remote. However, the litigant in person so firmly believes in the righteousness of his or her cause that they keep going. It is not in the interests of justice generally, that such litigation should continue because, not only does it waste valuable public resources in court time in rejecting a hopeless case, but great expense is also caused to other litigants who may have virtually no chance of recovering that expense from the litigant in person.

7. In saying what I have just said I do not mean for a moment that the applicant for pro bono assistance must prove his or her case before the judge considering that application or even that it has more than a 50% chance of success. In many situations, what might be presented may be a complex question of law from which the community would benefit from having a judicial determination after proper argument. Even in cases which might be described as cases on the facts, the judge considering the pro bono application does not look to see any more than if the facts as presented by the applicant were shown to be correct at the hearing the applicant would have at least a real chance of succeeding in the litigation.

8. I thus must turn to the facts and circumstances of Ms Chand's case.

9. Although the documents in the Court of Appeal files do not give a full picture, it would seem that Ms Chand complained of harassment by three employees of RailCorp. The Tribunal at first instance dismissed these claims. It held that it did not have jurisdiction to deal with some aspects of the claim. I further held that other matters put forward by Ms Chand were trivial, or alternatively, at least in one case, there may have been an accidental brushing against her back by a work colleague or his shopping bag.

10. Ms Chand appealed to the Appeal Panel which upheld the decision below, though it did not adopt all its reasoning. That is the matter which is the subject of the appeal in 2009/298394.

11. Many months later, RailCorp asked the Appeal Panel for an order for costs. Ms Chand challenged the jurisdiction of the Appeal Panel to make the order and she also challenged Railcorp's application for an extension of time to make its application for costs. Ms Chand had some small proportion of success, but the Appeal Panel made an order for costs against her which may mean that she may have to pay a significant sum of money.

12. This is the matter involved in 2010/79611.

13. Section 119 of the Administrative Decisions Tribunal Act 1997 provides:

119 Right of appeal to Supreme Court

(1) A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court, on a question of law, against any decision of the Appeal Panel in those proceedings.

(1A) Despite subsection (1), an appeal does not lie to the Supreme Court against any of the following decisions of the Appeal Panel except by leave of the Supreme Court:

(a) an interlocutory decision,

(b) a decision made with the consent of the parties,

(c) a decision as to costs.

14. The appeal in 2010/79611 thus requires leave and Ms Chand has sought such leave.

15. If the only matter with which I was concerned was the lastmentioned, I would be tempted to make the order for pro bono assistance. It seems to me that there are grounds for arguing that the orders for costs were not strictly made in accordance with law and that to argue that question would not involve delving into a great amount of detail of the facts of the initial dispute.

16. I cannot see how the administration of justice would be assisted by granting pro bono assistance in respect of the first matter or a package containing both matters.

17. The first matter may involve a question of law, but it certainly involves questions of fact. The Tribunal and the Appeal Panel found against Ms Chand. There is restricted appeal to the Court of Appeal from the decision of the Appeal Panel. The questions of law and fact seem to be intertwined. At least without delving deeply into the transcript which would take hours of time, it is difficult to see grounds for a successful appeal in this Court. I do not consider that it is in the interests of justice to ask a willing barrister or solicitor to give up hours and hours of his or her time to review material given before this Tribunal without some indication that there might be a reasonable chance of success in the appeal.

18. Accordingly I decline to make the order sought by Ms Chand for pro bono legal assistance.

19. Thus the notice of motion of 26 July 2010 is dismissed.

**********