Odlum v Friend

1. [1]

   By a notice of motion filed on 1 March 2022 the plaintiff seeks an order pursuant to r 7.36(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”) that she be referred to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance, and an order that the hearing date for a statement of claim that was filed by her on 4 December 2017 be vacated. The hearing is listed for four days, commencing on 28 March 2022. The application in respect of both orders is opposed by the defendants.

2. [2]

   The first defendant was retained by the plaintiff as her solicitor in proceedings in the Equity Division in 2011 and the second defendant was her counsel in those proceedings, which concerned a property dispute with her former de facto spouse. The nature of the plaintiff’s claim against the defendants is an allegation that they were negligent and provided her with misleading and deceptive advice, contrary to s 42(1) of the Fair Trading Act 1987 (NSW).

3. [3]

   Six months after filing her statement of claim, on 23 May 2018, the plaintiff’s solicitors filed a notice of intention of ceasing to act. On 7 September 2018, R A Hulme J heard an application by the plaintiff for pro bono assistance, pursuant to r 7.36 of the UCPR, which relevantly provides:

4. [4]

   His Honour approved a referral initially for advice as to the merits of the plaintiff’s claim and, if it had merit, to representation generally in the proceedings. Counsel was appointed and provided advice to the plaintiff. However, on 27 June 2019, she filed a notice of motion seeking a further referral for pro bono assistance. On 8 August 2019, Rothman J approved her application.

5. [5]

   In November 2019, a solicitor and counsel appeared for the plaintiff, seeking an extension of time to review documents. On 3 December 2019, the solicitor filed a notice advising that she had been appointed to act for the plaintiff in the proceedings. On 9 April 2020, she filed a notice of ceasing to act. On 15 March 2022, the matter was set down for hearing on 2 November 2021. In March 2021, mediation occurred and did not resolve the matter.

6. [6]

   On 19 April 2021, Bellew J heard a third application by the plaintiff for a referral for pro bono assistance: Odlum v Stephen Friend t/as Friend & Co Lawyers and anor [2021] NSWSC 577. The plaintiff advanced two bases for a finding that there were “special reasons” that justified a further referral, pursuant to r 7.36(2A) of the UCPR, which were that she is in receipt of a disability support pension and thus has no financial capacity to retain lawyers privately, and that she is not legally qualified and is unaware of the principles, practices and procedures of the Court which would be adopted at the hearing. His Honour found that the reasons did not constitute special reasons and refused the application, noting as follows:

7. [7]

   The day before the hearing date, the applicant filed a notice of motion in which, for the fourth time, she sought a referral for pro bono assistance, as well as an order that the hearing be vacated. It was heard before Schmidt AJ: Odlum v Stephen Friend t/as Friend & Co Lawyers and anor (No 2) [2021] NSWSC 1408. Her Honour outlined the plaintiff’s submissions as to “special reasons”, and declined the application for a referral for pro bono assistance:

8. [8]

   In support of her application for an adjournment, the plaintiff referred to her mental health, which Schmidt AJ noted, at [34]:

9. [9]

   The application for an adjournment was refused, however, in view of the plaintiff’s distress, ultimately a fresh hearing date was set.

10. [10]

    The present application, which is the plaintiff’s fifth application for a referral for pro bono assistance and a further adjournment, in the form of the notice of motion, was filed ten days prior to the hearing date which, as I have noted, is on 28 March 2022. Annexed to a supporting affidavit by the plaintiff are multiple brief psychological reports. The first in time is by Associate Professor Dr Scott Whyte, dated 26 July 2011. Dr Whyte noted that the plaintiff presented with “a history of impaired thinking, concentration, and memory impairment”, although had completed a teaching degree. He also noted that she had seen “a number of psychologists in the past”. He recommended that she engage in cognitive behavioural therapy.

11. [11]

    The next report was by Christine Kipps, clinical psychologist, and is dated February 2013. She had been consulting with the plaintiff since August 2011, “largely in connection with her anxiety and distress over the constant court appearances” concerning the proceedings in the Equity Division.

12. [12]

    Two reports by Anne Keniry, psychologist, are attached. In the first report, dated 14 March 2021, Ms Keniry stated that she had seen the plaintiff briefly in 2011 and then for counselling since December 2020. Ms Keniry stated:

13. [13]

    In her second report, dated 27 January 2022, Ms Keniry stated:

14. [14]

    Ms Keniry’s most recent report is the only psychologist’s report before me that has a diagnosis of the plaintiff being on the autism spectrum or suffering from a post-traumatic stress disorder (“PTSD”).

15. [15]

    In her affidavit, the plaintiff relies on that report as the basis of her submission that there are “special reasons” for the Court to make a further referral for pro bono assistance, stating:

16. [16]

    By letter dated 9 March 2022, the defendants informed the plaintiff:

Consideration

1. [17]

   For the purposes of the hearing of the motion, the defendants do not dispute the mental health diagnoses that are relied upon by the plaintiff. It is apparent from the judgments of Bellew J and Schmidt AJ that these conditions were not raised as a basis for warranting pro bono assistance or as constituting “special reasons” in those applications. Certainly, they are conditions that underscore the desirability for the plaintiff to be legally represented. However, the history of the matter strongly suggests that there is little point in making the order sought for a referral for pro bono assistance since on both past occasions that such orders were made, it would seem, the plaintiff had the benefit of legal advice as to the merits of her claim but legal representation for the hearing did not eventuate. It is inappropriate for the Court to inquire of the plaintiff why that was so, but the end result does not assist her in determining whether a third referral would likely result in a different outcome, if the hearing is vacated and a fresh date set.

2. [18]

   The defendants’ proposal for the hearing is, in my view, sensible. It is apparent to me from the plaintiff’s oral submissions on the hearing of the motion that she is intelligent, articulate and well-educated, as the conferring on her of a degree in education would suggest. It is equally clear to me that her vulnerability to anxiety has the potential to stymie her giving of evidence and oral delivery of submissions. The Court will, of course, be able to control questioning of the plaintiff, should she choose to give evidence, pursuant to the provisions of the Evidence Act 1995 (NSW), in particular, ss 26(1)(a), 29, 37, 41 and 42(1)(d).

3. [19]

   Accordingly, the Court is not satisfied that the plaintiff has established special reasons for a further referral for pro bono assistance.

4. [20]

   The only basis that has been advanced by the plaintiff for a vacating of the hearing date is so that she could receive pro bono assistance. Since that part of the application has been refused, this part must be refused as well. Accordingly, I dismiss the plaintiff’s motion.

5. [21]

   This being the fifth such application by the plaintiff and the third that is unsuccessful, it is appropriate in my view that there be a costs order in favour of the defendants.

Orders

1. [22]

   I make the following orders:

   1. (1)

      The plaintiff’s notice of motion is dismissed;

   2. (2)

      The plaintiff to pay the defendants’ costs of the notice of motion.