Bodenstein v Voukelatos [2010] NSWSC 249 (31 March 2010)

Last Updated: 1 April 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
Bodenstein v Voukelatos [2010] NSWSC 249


JURISDICTION:


FILE NUMBER(S):
2004/181952

HEARING DATE(S):
15 January 2010

JUDGMENT DATE:
31 March 2010

PARTIES:
Amir Bodenstein (Plaintiff)
Zois Voukelatos (First Defendant)
Vessela Voukelatos (Second Defendant)


JUDGMENT OF:
Harrison J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:


SOLICITORS:



CATCHWORDS:
LEGAL ASSISTANCE – UCPR 7.36 – application for court appointed referral for legal assistance – application unsupported by evidence – plaintiff directed to provide affidavit in support of application – no affidavit provided – application refused.

LEGISLATION CITED:


CATEGORY:
Consequential orders

CASES CITED:


TEXTS CITED:


DECISION:
Plaintiff's application for referral for legal assistance pursuant to UCPR 7.36 refused.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

HARRISON J

31 March 2010

2004/181952 Amir Bodenstein v Zois and Vessela Voukelatos

JUDGMENT

- 3 -

1 HIS HONOUR: Mr Bodenstein applies by notice of motion for an order that he "be referred to the pro bono panel" pursuant to what is now UCPR 7.36. That rule is relevantly in these terms:

"Division 9 Court appointed referral for legal assistance

7.36 Referral to a barrister or solicitor

(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.

(2A) The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.

(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person."

2 The matter came before me as vacation judge on 15 January 2010. The application was unsupported by any evidence, either in the form of an affidavit or otherwise. Mr Bodenstein made some oral submissions but these were difficult to follow at the time. Accordingly, I directed him to provide an affidavit in support of his claim for referral for legal assistance by no later than 5 February 2010 and indicated that I would reserve my decision until after that date. Mr Bodenstein indicated that he would be able to comply with that timetable.

3 In the events that have occurred, no such affidavit was provided. I have delayed dealing with the matter against the contingency that the affidavit may have arrived, even if somewhat later than ordered. That has not occurred. The application is, therefore, wholly unsupported by any material upon the basis of which I could proceed to deal with it. I have in these circumstances no choice but to refuse it.

4 I should observe, however, that this matter has a very long history. The proceedings would appear to have been commenced in 2004. When they came before Price J on 16 February 2009, on which occasion Mr Bodenstein sought to vacate the hearing listed to commence on that day, his Honour described the proceedings in the judgment that he then delivered as having travelled an "arduous journey". This is clear from even a cursory inspection of the file.

5 The matter subsequently came before Nicholas J on 14 October 2009. On that occasion the defendants sought orders by notice of motion filed 9 October 2009 that the proceedings be dismissed pursuant to UCPR 12.7 and s 61(3)(a) of the Civil Procedure Act 2005. His Honour dismissed the plaintiff's proceedings. Mr Bodenstein was not present. His Honour also adjourned the hearing of the defendants' second cross claim to 2 November 2009 on which occasion Mr Bodenstein appeared and his Honour dismissed the cross claim by consent with no order as to costs.

6 There is nothing in the Court file, and nothing before me, that suggests that Mr Bodenstein's application has merit. There is no material that supports it in any way. I have assumed that Mr Bodenstein wishes to challenge the dismissal of the proceedings by Nicholas J. The transcript of what occurred before his Honour on 2 November 2009 suggests Mr Bodenstein had remained until then unaware that his case had been disposed of in that way by his Honour. He told the Court that he was mentally sick and living on the street. His Honour provided Mr Bodenstein with a copy of his reasons for earlier dismissing his claim and observed that he "may want to get some advice about it". His Honour said to Mr Bodenstein, "if you decide that you want to have the order that I made set aside, then it will be necessary for you to bring an application supported by evidence". The file contains no suggestion that Mr Bodenstein sought to follow that course, with the possible exception of the present application.

7 In the circumstances I consider that Mr Bodenstein's application should be refused. The purpose of Division 9 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: UCPR 7.33(2). Nothing in Division 9 requires the Court to make a referral, or to consider a litigant's case for referral, under the Division: UCPR 7.33(5). It is not possible to be satisfied, in the absence of evidence touching the issue, that it is in the interests of the administration of justice that Mr Bodenstein be referred to the registrar for pro bono legal assistance as requested by him. I am not aware of any impediment or restriction upon Mr Bodenstein making a further similar application if so advised.

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LAST UPDATED:
31 March 2010