Legal aid and pro bono procedures
[1-0600] Pro bono schemes in NSW
Where a litigant appears unrepresented and indicates that he or she is unable to afford private representation, the litigant may be referred to any one of a number of bodies who provide legal advice or representation in appropriate circumstances, generally subject to a means test and an assessment of the merits of the applicant’s case. In other cases, it may be appropriate to gently identify the advantages of the litigant having professional assistance and indicate where such assistance may be obtained; but if the litigant indicates that he or she wishes to present the case in person, either through mistrust of the profession or for other reasons, the issues should not be pushed, lest it engender suspicion that the court is unwilling to hear the case impartially, a common problem in the case of the vexatious or querulous litigant.
Such bodies include:
NSW Legal Aid Commission
Central Sydney Legal Aid Office (Head Office)
323 Castlereagh Street, Haymarket 2000
Telephone: 9219 5000
Pursuant to the Legal Aid Commission Act 1979, a personal may apply to the Commission for legal aid. The application must be made in the manner and form approved by the Commission: s 31. Applicants must fill out a Legal Aid application form, which can be obtained from any Legal Aid office, from duty lawyers at local courts or by contacting LawAccess NSW on 1300 888 529 or accessing www.lawaccess.nsw.gov.au.
New South Wales Bar Association — Legal Assistance Referral Scheme (LARS)
174 Phillip Street, Sydney 2000
Telephone: 9232 4055
The Bar Association has specifically requested that applicants not be directed to attend its offices.
The scheme only applies to legal proceedings being heard in NSW. When deciding whether to provide assistance under the scheme, the NSW Bar Association considers a number of factors, including the applicant’s financial resources, whether they have been refused legal aid or assistance elsewhere, and the general nature of the matter. Applicants must fill out an application form, which can be downloaded from the website under “Legal assistance”.
The Law Society of New South Wales — Pro Bono Scheme
The Pro Bono Solicitor
Law Society of New South Wales
Lower Ground Floor, 170 Phillip Street, Sydney 2000
Telephone: 9296 0364; 9926 0355
To qualify for the scheme, applicants must have been refused by Legal Aid; satisfy the scheme’s means test; and have reasonable prospects of success. The matter must also fall within an area covered by the scheme. Enquiries may be directed through one of these agencies: LawAccess NSW, community legal centres, legal advice centres, private legal practices, welfare agencies or the Legal Aid Commission.
[1-0610] Court-based scheme
Division 9 of Pt 7 of UCPR provides for court appointed referral for legal assistance in proceedings in the Supreme Court, District Court and Local Court.
The purpose of the Division 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: r 7.33(2).
The provision of legal assistance is not intended to be a substitute for legal aid (r 7.33(3)), and a referral is not an indication that the court has formed an opinion on the merits of a litigant’s case.
A litigant may be a party to proceedings, a person served with a subpoena or a person who has applied to be joined in proceedings: r 7.34.
The principal registrar of the Supreme Court (or any registrar of that Court nominated by the Principal Registrar), the registrar in a proclaimed place in the case of the District Court or the registrar of a Local Court may maintain a list of barristers or solicitors who have agreed to participate in the scheme in relation to that court (the Pro Bono Panel): r 7.36. For an application where a referral for pro bono legal assistance was refused, see Potier v Arnott  NSWCA 5.
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 panel for legal assistance: r 7.36(1). 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: r 7.36(2A).
The power may be exercised in the absence of the public and without any attendance by or on behalf of any person: r 7.36(3). The court may take into account (r 7.36(2)):
the means of the litigant
the capacity of the litigant to obtain legal assistance outside the scheme
the nature and complexity of the proceedings
any other matter that the court considers appropriate.
A referral may be made for the following kinds of assistance (r 7.37):
advice in relation to the proceedings
representation on directions hearing, interlocutory or final hearing, arbitration or mediation
drafting or settling of documents to be filed or used in the proceedings
representation generally in the conduct of the proceedings or of part of the proceedings.
Once an order is made the registrar must attempt to arrange the legal assistance, however, the referral can only be made to a panel member who has agreed to accept it. If the registrar is unable to do so within 28 days of the referral, the registrar may make an order terminating the referral: r 7.36(4A).
A panel member having accepted a referral must give assistance in accordance with it (r 7.38) and can cease that assistance only:
in the circumstances set out in any practice rules governing professional conduct that apply to the panel member
with the written agreement of the litigant,
with the leave of the registrar.
If a panel member ceases to provide legal assistance he or she must inform the registrar in writing within seven days: r 7.39(2).
Rule 7.40 sets out the procedure for, and matters to be considered upon, an application to the registrar for leave to cease to provide legal assistance.
A panel member may only recover costs that another person is required to pay in an order for costs in favour of the litigant: r 7.41(1) and (2). A panel member may request the litigant to pay disbursements (r 7.42) and must account to the litigant for any money received in respect of disbursements so paid: r 7.41(2).
The process of granting a referral is administrative rather than judicial, however, the court must be satisfied that it is in the interests of justice to do so: Nuha Ibrahim Dafaalla v Concord Repatriation General Hospital  NSWSC 602 at .
In that case, which concerned a similar scheme under a former Supreme Court rule, Brereton J drew attention to the obligations accepted by the panel members pro bono and observed at  that they “import a concomitant obligation on the Court to exercise discretion in the grant of referral certificates … the Court should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit”. He accepted, however, that a referral for advice might be appropriate to allow a litigant to understand the defects in the case and thus avoid unnecessary litigation. On the particular facts of Dafaalla an order for referral was made limited to advice and subject to that advice, the settling of an amended statement of claim.
For a case in which an order for representation on the hearing of an appeal was made, see Rouvinetis v Knoll  NSWCA 125.
It is not clear how, if at all, the availability of the scheme in the Local Court will affect the provision of advice and assistance in the preparation of necessary documents, but not representation, by chamber registrars.
Legal Aid Commission Act 1979
UCPR Pt 7 Div 9, rr 7.33–7.42