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. Refer to “Probono schemes in NSW” on the Publications menu on JIRS for further information.

Such bodies include:

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 [2012] 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 interests of justice include not only the interests of the applicant but also the interests of the other parties and the court: Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 at [6].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 court may note limitations on the referral as occurred in Norman v Wall [2020] NSWSC 129 where the referral was limited to advising the named plaintiffs on the viability of the cause of action in tort, breach of fiduciary duty and or breach of trust, and to assist with drafting any amended statement of claim: at [17]. See also Norman v Wall (No 6) [2020] NSWSC 1211.

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)):

A referral may be made for the following kinds of assistance (r 7.37):

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:

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 [2007] NSWSC 602 at [5]. See Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 for an example where the court was not persuaded that it was in the interests of justice to refer the applicant to the Pro Bono Panel as there did not appear to be reasonable prospects of success. See also Phu v NSW Department of Education and Training [2011] NSWCA 119 and Potier v Arnott [2012] NSWCA 5.

For a case in which a referral for assistance by way of representation on the hearing of an appeal was made, see Rouvinetis v Knoll [2012] NSWCA 125.