Westpac Banking Corporation v Channel 8 Holdings Pty Ltd (No. 2)

Judgment

1. [1]

   On 28 March 2014 I made a reference to the Registrar to enable the Defendant to obtain pro bono assistance, limited to the lawyer advising in relation to the Defendant's existing Defence and whether it had any other defence to the claim. As a result of that reference Mr McQuillen of counsel accepted a reference from the Registrar. Mr McQuillen has now provided advice and drafted an Amended Defence on behalf of the Defendant.

2. [2]

   I said at the time I made the reference that if the result of the lawyer's advice the Defendant was permitted to file a further defence identifying any other defence to the claim I would be prepared to entertain a further application at that time in respect of pro bono assistance. Mr McQuillen has indicated that he is prepared to continue to act for the Defendant on the same basis if the pro bono reference was extended.

3. [3]

   A similar issue arose in Aboriginal Housing Company Ltd v Kaye-Engel (No. 2) [2014] NSWSC 717 by reason of the provisions of r 7.36(2A) Uniform Civil Procedure Rules 2005 (NSW). I concluded in that case that where there had been a limited reference to see if a defendant had a defence to a claim, where it was found that there was an arguable defence and where the defendant was not capable of conducting the proceedings themselves, those matters constituted the special reasons for the purpose of the sub-rule.

4. [4]

   I consider that the same position obtains in the present case. Mr McQuillen has identified two arguable defences. Those defences involve some degree of technicality and require legal knowledge. I am satisfied that the Defendant is not in a position to conduct that defence in a way that will advance the interests of justice. Accordingly, the earlier limited reference is extended for the provision of assistance for the preparation and conduct of the hearing of the matter.