How can a party apply for a NSW Court appointed referral for Pro Bono [Free] Legal Assistance?

Application for a NSW Court appointed Referral for Pro Bono [Free] Legal Assistance

Procedure

1️⃣ An application for a Court appointed Referral for Legal Assistance must be made by a Notice of Motion setting out the order sought from the Court that assistance be granted: Uniform Civil Procedure Rules 2005 (NSW) rr 18.1, 18.3(1)(f) (‘UCPR’).

A blank [Form 20] Notice of Motion can be downloaded here.

2️⃣ Approval depends on whether the Court is satisfied that referral for legal assistance is in the interests of the administration of justice and whether the applicant is otherwise unable to obtain assistance: UCPR r 7.33(2).

3️⃣ The matters the Court may take into account for this purpose include:

⚖️ The means of the applicant;

⚖️ The applicant’s capacity to obtain legal assistance on his/her own;

⚖️ The nature and complexity of the proceedings: UCPR r 7.36(2); and

⚖️ Any other matter that the court considers appropriate.

UCPR r 7.36 is annexed in its entirety to this FAQ (refer below).

4️⃣ There must be evidence that the application has merit, best in the form of an affidavit in support of the application: Bodenstein v Voukelatos [2010] NSWSC 249, [2].

5️⃣ Should the application be successful, the referral will be made to the Pro Bono Panel of solicitors and barristers maintained by the Registrar of the Supreme Court for the very purpose of the legal assistance scheme: UCPR r 7.35; MM International (Australia) Pty Ltd v Workers Compensation Nominal Insurer [2015] NSWSC 1846, [9] (‘MM International’).

Overarching Principles to be met by the Application

6️⃣ The  application would be drafted most effectively following the matters set out in r 7.36(2): MM International, [11].

7️⃣ The interests of the administration of justice demand that complex matters be disposed of efficiently, which is best achieved through legal assistance: MM International, [17].

8️⃣ The  interests  of  the  administration  of  justice  also  demand that  the scheme  not  be exploited,  and  so  the  applicant  must  show  that  there  is  a  real  basis for  the  scheme  being productive of benefit to the applicant: MM International, [18].

9️⃣ However, the application will still be successful even if the prospects of obtaining relief from the court are slim: MM International, [19].

Grounds for Application

🔟 Pursuant to r  7.36(2)(a), if the applicant can show limited means, for example:

✅ Rented accommodation;

✅ No other assets; and

✅ An unprofitable  business;

This first matter will be satisfied: MM International, [12].

1️⃣1️⃣ Pursuant to r 7.36(2)(b), the applicant must show an inability to obtain legal assistance, whether or not due to an inability to afford to pay a solicitor: MM International, [13].

1️⃣2️⃣ Even if an applicant has previously been able to obtain legal assistance for a different matter, that fact will not prejudice the application: MM International, [14].

1️⃣3️⃣ It should also be noted that previous representation for a different matter is not the same as assistance under a previous Court referral, the latter being a bar to an application: UCPR r 7.36(2A); MM International, [16]; Clemett v NSW Lotteries Corporation Pty Ltd (No 2) [2013] NSWSC 2037, [16]-[17](‘Clemett’).

1️⃣4️⃣ Pursuant to r 7.36(2)(c), the matter for which the applicant is seeking assistance must have a degree of complexity, namely an identified question of law, for example:

➲ An issue with respect to a statute, noting that without legal assistance, identifying such a question in itself would pose difficulties to an applicant: MM International, [15]; c.f. Clemett, [14].

UCPR r 7.36
7.36 Referral to a barrister or solicitor (cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)
(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.
(4) If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.
(4A) If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant’s referral, the registrar may make an order terminating the litigant’s referral.
(5) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.
(6) A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

Credits:

The above summary of the procedure to apply for a Court appointed Referral for Legal Assistance was prepared by Shakvaan Wijetunga | Virtual Intern, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.