[2013] NSWCA 260

Stankovic v Namul Pty Ltd (No 2)

The Applicant's Notice of Motion filed on 22 July 2013 is dismissed with costs. [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

APPEAL - application for stay and referral for pro bono assistance - no issue of principle

Cases cited

Hetherington-Gregory v All Vehicle Services (No 2)[2012] NSWCA 257
Stankovic v Namul Pty Ltd[2013] NSWCA 41
M v Director-General, Department of Family and Community Services[2013] NSWCA 118

Legislation cited

Uniform Civil Procedure Rules 2005

Judgment

[1]
HIS HONOUR: I will not repeat the background to this matter which is set out in my judgment of 25 February 2013 (Stankovic v Namul Pty Ltd [2013] NSWCA 41). By that judgment I dismissed a Notice of Motion filed by Mr Stankovic seeking a stay of orders made by Rein J on 14 February 2013. I held that Mr Stankovic had not established that his appeal had sufficient prospects of success to warrant the granting of any interlocutory relief.
[2]
On 22 July 2013 Mr Stankovic filed a further Notice of Motion, which sought a stay of Rein J's orders and an order under r 7.36(1) of the Uniform Civil Procedure Rules 2005 referring him to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. That Motion is before me for hearing today. Mr Stankovic's appeal has been fixed for hearing by 3 judges of this Court on 27 August 2013.
[3]
As to the stay application, Mr Stankovic has not provided any further material which causes me to depart from the views expressed in my previous judgment. The position continues to be that he has not established that his appeal has sufficient prospects of success to warrant the granting of any interlocutory relief or any other circumstance that would justify the grant of a stay.
[4]
In relation to his application for referral for pro bono assistance, Mr Stankovic faces the difficulty that it is well-established that the Court "should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit" (Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 at [3] - [5]; M v Director-General, Department of Family and Community Services [2013] NSWCA 118 at [21]). The lack of apparent merit in Mr Stankovic's appeal therefore weighs heavily against the making of the order he seeks. As well, the fact that his application is made at such a late stage and that the making of the order he seeks might give rise to doubt as to whether the appeal can proceed on the date fixed favours refusal of the order. As in my view there are no significant countervailing factors, the Court should refuse to make the order sought.
[5]
For these reasons, Mr Stankovic's Notice of Motion filed on 22 July 2013 is dismissed with costs.