Pro Bono Referral in Sensitive Civil Proceedings: When a Self-Represented Barrister Claims Impecuniosity, How Does the Supreme Court Decide Whether the Interests of Justice Require Independent Representation?

Based on the authentic Australian judicial case Longin v Tomordi; Longin v Department of Communities and Justice [2024] NSWSC 1248, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Supreme Court of New South Wales, Common Law Division

Presiding Judge: Hamill J (as Duty Judge)

Cause of Action: Procedural ruling on referral for pro bono legal assistance pursuant to rr 7.36 and 7.41 of the Uniform Civil Procedure Rules 2005 (NSW)

Judgment Date: 3 October 2024

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: Pro Bono Panel referral

Keyword 3: Uniform Civil Procedure Rules 2005 (NSW) r 7.36

Keyword 4: Interests of the administration of justice

Keyword 5: Self-represented litigant who is a barrister

Keyword 6: Sensitive allegations and evidentiary management

Background

These proceedings were not about whether the Plaintiff’s underlying allegations were true. They were about whether the Court should take a procedural step to improve the fairness, efficiency, and integrity of future litigation.

The Plaintiff had two sets of civil proceedings in the Supreme Court. In one, the Plaintiff sued a Defendant for alleged domestic violence and serious sexual assault said to have occurred years earlier. In the other, the Plaintiff sued a Second Defendant, with a child as an additional plaintiff represented by the Plaintiff as tutor, alleging that the Second Defendant failed to protect the child from danger connected to the same general factual background. The matters had moved slowly for years, until the Court intervened with renewed case management and set a future timetable, including a lengthy hearing listing.

Against that background, the Plaintiff sought referral to the Registrar so the Registrar could attempt to arrange legal assistance through the Pro Bono Panel. One Defendant opposed the referral. The Second Defendant neither consented nor opposed. The Court, sitting as Duty Judge, was required to determine whether a referral should be made under the relevant procedural rules.

Core Disputes and Claims

The legal focus question was narrow but important:

1. Whether it was in the interests of the administration of justice to refer the Plaintiff to the Registrar for possible pro bono legal assistance under UCPR r 7.36, having regard to:
   • the Plaintiff’s means and asserted impecuniosity,
   • the Plaintiff’s capacity to obtain legal assistance outside the scheme,
   • the nature and complexity of the proceedings,
   • any other matter the Court considered appropriate.

Relief sought:

• Plaintiff: orders referring the Plaintiff for pro bono assistance in each proceeding.

Positions:

• Defendant: opposed, arguing the Plaintiff was not truly impecunious, had access to substantial assets, and was capable of self-representation as a practising barrister.
• Second Defendant: did not oppose or consent.

Chapter 2: Origin of the Case

The origin story is best understood as two strands of litigation braided together by one alleged risk narrative.

First strand: the Plaintiff commenced civil proceedings against the Defendant, alleging serious personal wrongdoing, including allegations of sexual assault and domestic violence. The Plaintiff framed the consequences as psychological injury and sought damages accordingly. While the underlying events were said to date back to an earlier period, the litigation itself became a long-running feature of the parties’ lives.

Second strand: later, the Plaintiff, acting also as tutor for a child, sued a government department as Second Defendant, alleging a failure to protect the child. The pleadings were not clearly precise as to timing or particulars, but the Court inferred, and proceeded on the basis, that the alleged breach was connected to the danger said to arise from the same or similar conduct underlying the first strand.

In practical terms, the day-to-day deterioration of the dispute followed a pattern familiar in many intense civil conflicts:

• The more personal and high-stakes the allegations, the more emotionally loaded the litigation becomes.
• Each procedural step is experienced as a proxy battle about legitimacy, credibility, and control.
• Over time, delay begins to create its own harms: memory fades, evidence becomes harder to assemble, and the litigation’s cost and stress expand beyond what the original dispute might have justified.

This case also carried a distinctive accelerant: the Plaintiff was admitted as a barrister and held a practising certificate, yet asserted she was not earning a barrister’s income and could not fund representation. That combination created a procedural tension the Court had to resolve: professional capacity does not necessarily mean practical suitability to act, especially where the allegations are sensitive and the litigation requires disciplined pleadings and cross-examination planning.

The decisive moments that pushed the matter into the pro bono referral question were procedural, not substantive:

• The matters had “languished” for years.
• A judge undertaking review of older cases imposed a timetable and a future trial listing.
• The Court then listed the Plaintiff’s pro bono referral application before the Duty Judge, requiring a clear decision on whether independent representation should be pursued through the Court’s pro bono scheme.

Chapter 3: Key Evidence and Core Disputes

Plaintiff’s Main Evidence and Arguments

The Plaintiff relied on affidavit evidence, primarily:

1. Multiple affidavits sworn or affirmed by the Plaintiff across several dates, presenting:
   • assertions of limited income, including reliance on social security payments,
   • denial of current meaningful income as a barrister despite holding a practising certificate,
   • explanation of attempts to engage lawyers on a speculative or conditional basis without success,
   • claims about financial constraints and inability to pay private legal costs at present.
2. An affidavit from the Plaintiff’s mother, supporting the proposition that family resources were not available to fund representation.

The Plaintiff’s submissions also included strong criticisms of the Defendant’s legal representatives, including allegations that a solicitor had misled the Court in relation to the Plaintiff’s equity in property. The Court treated those accusations as serious, and noted that if unfounded they were inconsistent with the ethical duties expected of a legal practitioner, but did not make findings against the Defendant’s lawyers.

At the heart of the Plaintiff’s case for referral were two practical propositions:

• Even if future assets might exist, the immediate ability to pay lawyers was the relevant present-time question.
• The nature of the proceedings, particularly the sensitive allegations and the need for coherent pleadings, made independent representation desirable for the administration of justice.

Defendant’s Main Evidence and Arguments

The Defendant opposed referral and relied on:

1. Submissions asserting the Plaintiff was not truly impecunious, or would likely obtain substantial funds due to property and related proceedings elsewhere.
2. Emphasis that the Plaintiff was a barrister with a practising certificate and therefore capable of self-representation.
3. A fairness argument: the Defendant was paying private legal costs and had carried the burden of litigation for many years, so it was said to be unfair if the Plaintiff received free assistance while the Defendant continued to pay.
4. A narrative of prolonged litigation: the Defendant asserted years of litigation and substantial unpaid legal expenses.

The Defendant also relied on an affidavit from a real estate agent giving a valuation of property said to bear on the Plaintiff’s financial position.

Core Dispute Points

The dispute points for the referral application were:

1. Means: whether the Plaintiff’s asserted impecuniosity should be accepted for present purposes.
2. Capacity to obtain assistance outside the scheme: whether attempts to secure speculative representation had failed, and whether that mattered.
3. Capacity to self-represent: whether a barrister’s professional training and practising certificate should weigh against referral.
4. Nature of the proceedings: whether sensitive sexual assault allegations and long-delayed litigation made independent representation desirable for fairness and orderly conduct.
5. Administration of justice: whether the Court’s broader interest in efficient, fair, and properly pleaded proceedings outweighed any perceived unfairness to the Defendant.

Chapter 4: Statements in Affidavits

Affidavits are not mere storytelling. They are structured instruments of persuasion designed to lock a party into sworn factual propositions that can later be tested, challenged, and, if necessary, undermined.

In this application, the affidavits performed three distinct functions:

1. Establishing present inability to fund representation
   • The Plaintiff’s affidavits positioned the problem as immediate and cash-flow based: even if property existed, access to funds now was not established.
   • The affidavits asserted reliance on social security payments, and lack of ongoing earnings from legal practice.
2. Demonstrating attempted alternatives
   • The Plaintiff set out attempts to obtain legal representation on a speculative basis.
   • This targeted the r 7.36(2)(b) factor: capacity to obtain legal assistance outside the pro bono scheme.
3. Framing the proceedings as sensitive and procedurally risky without independent representation
   • The affidavits and submissions, read together with the pleadings, aimed to show that without detached representation the case risked continued delay, imprecision in pleadings, and emotionally charged engagement with the Court and the other side.

The Defendant’s position sought to destabilise the Plaintiff’s narrative of hardship by pointing to property value and future funds. That is a classic forensic strategy: if a party’s credibility on means is shaken, the discretionary foundation for procedural assistance can weaken.

A critical comparative point emerges in how each side described the same real-world financial topic:

• The Plaintiff framed property as a distant, contested, and non-liquid possibility.
• The Defendant framed property as valuable, imminent, and effectively available.

The Judge’s procedural directions about affidavits served a strategic function in administration of justice terms: they required each side to commit to a concise evidentiary basis for the referral decision, rather than allowing the application to become an unbounded inquiry into the merits of the underlying claims. The affidavit process narrowed the question to what the Court needed to decide now: whether referral would advance the administration of justice.

Chapter 5: Court Orders

Before the final hearing of the underlying proceedings, the Court made procedural arrangements including:

• case management of both proceedings together, with potential for being heard together or consecutively,
• listing for a substantial hearing period in the future,
• directions requiring the Plaintiff to file any motions to amend pleadings and supporting affidavits by specified deadlines,
• listing directions for those motions and a further status review,
• listing the Plaintiff’s pro bono referral application before the Duty Judge with page-limited submissions for both sides.

These orders reflect a familiar judicial approach to delayed civil litigation: impose a timetable, constrain submissions, and require procedural clarity so the dispute can either proceed efficiently or, if not prosecuted with due dispatch, be at risk of dismissal.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing was not a trial of the underlying allegations. It was a focused procedural contest about the Court’s discretion under UCPR r 7.36. Still, it carried the intensity of a merits hearing because it touched the parties’ perceived fairness, resources, and credibility.

Process Reconstruction: Live Restoration

The Court approached the matter with a disciplined sequence:

1. Identify what decision is required: whether referral is in the interests of the administration of justice.
2. Identify the evidentiary foundation: the Plaintiff’s affidavits and supporting affidavit, the Defendant’s affidavit on property value, the pleadings, transcripts, and procedural history.
3. Confront competing narratives:
   • The Defendant’s position: the Plaintiff can self-represent and is not truly without means.
   • The Plaintiff’s position: present incapacity to pay, failure to secure speculative lawyers, and the desirability of detached representation.

The Court openly acknowledged a doubt about the extent of the Plaintiff’s impecuniosity, but treated the affidavits as evidence that must be addressed on their face for the purpose of the application. The Court also dealt firmly with the seriousness of accusations made against legal representatives, marking that such allegations, if unfounded, would be inconsistent with professional obligations.

Core Evidence Confrontation

The decisive evidentiary confrontation centred on means and capacity:

• Property value evidence suggested the Plaintiff might have access to substantial assets in the long term.
• The Plaintiff’s sworn position was that present access was not established and present income was limited.

The Court treated “means” as only one factor. That matters because it prevents the referral scheme from collapsing into a crude wealth test. A party can be imperfectly credible on finances and still, in the Court’s view, require independent representation to ensure proceedings are properly pleaded, conducted, and resolved.

The second decisive confrontation was about suitability to self-represent:

• The Defendant argued the Plaintiff’s status as a barrister proved capacity.
• The Court accepted capacity in the sense of intellectual or professional ability, but distinguished that from the desirability of detached advocacy in sensitive proceedings.

Judicial Reasoning and Determinative Quotation

The Court’s reasoning turned on the administration of justice, not a private benefit to one side.

“the interests of justice would be advanced by having independent and detached legal representation in the case.”

This statement was determinative because it anchored the discretion in the Court’s institutional responsibility: to ensure proceedings are conducted fairly, efficiently, and with adequate procedural precision, particularly where allegations are sensitive and the case history shows delay and procedural friction.

The Court also highlighted a core risk of self-representation, even for lawyers:

“a lawyer who appears for themself has a fool for a client.”

The Court used this to explain why professional status does not eliminate the practical disadvantages of being personally invested in the dispute. The point was not insult. It was an objective observation that self-representation can distort judgement, impair strategic choices, and intensify conflict, thereby harming the administration of justice.

Finally, the Court linked the need for representation to the litigation’s next procedural stage:

• pleadings, especially against the Second Defendant, required redrafting and greater precision,
• a trial timetable had been imposed and needed compliance,
• lack of due dispatch could lead to applications to end the proceedings.

Chapter 7: Final Judgment of the Court

The Court made an order under rr 7.36 and 7.41 of the Uniform Civil Procedure Rules 2005 (NSW) that the Plaintiff be referred to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

In practical terms, this order did not guarantee the Plaintiff would obtain pro bono representation. It triggered a process: the Registrar must attempt to arrange assistance through the Pro Bono Panel framework.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

This judgment is a procedural ruling, but it carries jurisprudential value because it illustrates how courts apply discretionary procedural powers where party resources, professional capacity, fairness perceptions, and sensitive allegations intersect.

The “victory” in this chapter is not a finding on the underlying allegations. It is the Plaintiff’s success in obtaining referral. The deeper lesson is how the Court constructed a path from statutory text to discretionary conclusion while remaining alert to credibility, ethics, and future case management.

Special Analysis

This case illustrates a sophisticated judicial balancing act: the Court protected the integrity of future proceedings by prioritising detached representation, even where:

• the Plaintiff was a legal practitioner with a practising certificate,
• the Defendant complained of unfairness because the Defendant was privately funding the case,
• the Court held misgivings about the Plaintiff’s asserted impecuniosity.

The judgment confirms that r 7.36 is not a mere welfare mechanism. It is an administration-of-justice mechanism. That distinction matters because it legitimises referral even where the financial story is contested, provided the Court is satisfied referral will advance orderly, fair adjudication.

The case also demonstrates a judicial unwillingness to allow professional status to become a blunt veto. A practising certificate signals knowledge. It does not guarantee objectivity, emotional distance, or strategic restraint in a high-conflict dispute involving serious personal allegations.

Judgment Points

1. Means is relevant, but not decisive
   • The Court treated the Plaintiff’s means as only one consideration.
   • The Court acknowledged doubts about impecuniosity but proceeded by accepting the Plaintiff’s evidence for present purposes, emphasising that present access to funds was not established even if long-term assets might exist.
   • This approach protects the function of the rule: the Court is not required to conduct a mini-trial on wealth before making a referral aimed at improving the conduct of proceedings.
2. Capacity to obtain legal assistance outside the scheme includes real-world barriers, not theoretical possibilities
   • The Court treated the Plaintiff’s attempts to obtain speculative representation as relevant.
   • The Court noted it was unsurprising, given the materials, that lawyers might be unwilling to act on such a basis.
   • This recognises that some cases, particularly those involving sensitive allegations and complex procedural histories, can be difficult to place in the private market even when a party has some notional assets.
3. Professional competence does not equate to suitability to self-represent
   • The Court accepted the Plaintiff had the capacity to appear for herself.
   • Yet the Court held the administration of justice would be advanced by independent and detached representation.
   • This distinction is crucial: self-representation carries structural risks, including inability to step back, difficulty maintaining discipline in pleadings, and escalation of conflict.
4. Sensitivity of allegations is an administration-of-justice factor, not a merits finding
   • The Court stated it could not assess truthfulness or merit at this stage.
   • Nonetheless, the Court recognised that allegations of sexual assault involve sensitive evidence, and that the Plaintiff would likely be cross-examined on those allegations if they were pursued.
   • Detached representation protects both the party and the process by ensuring evidence is elicited and presented with care, and by reducing the risk of procedural breakdown in emotionally charged testimony.
5. Procedural history and delay become part of the discretionary calculus
   • The Court took into account that the matters had “staggered along” until stronger case management intervened.
   • The Court emphasised compliance with the newly imposed timetable, noting the risk of applications to end the proceedings for want of due dispatch.
   • Referral was aligned with efficiency: competent representation can narrow issues, regularise pleadings, and reduce wasted interlocutory skirmishing.
6. Ethical boundaries are policed even when not finally determined
   • The Court highlighted that serious allegations against opposing lawyers, if unfounded, are inconsistent with legal professional duties.
   • While the Court made no findings against the lawyers, it marked the issue to protect the integrity of the process.
   • This demonstrates that administration of justice includes maintaining professional standards, not merely moving the file along.
7. The fairness argument to the privately funded opponent is not ignored, but it does not control the discretion
   • The Defendant’s complaint of unfairness was acknowledged in substance.
   • The Court’s approach indicates that the rule’s purpose is not parity of private expense, but the Court’s responsibility to ensure the proceedings are justly administered.
   • In other words, the Court’s lens is institutional fairness: fairness to the process, not simply fairness as symmetry of legal bills.
8. Pleading precision is a decisive practical consideration
   • The Court observed a distinct absence of precision in the claim against the Second Defendant and the need for redrafting and objective review.
   • Referral was therefore justified to assist in clarifying the particulars, assessing merit properly, and ensuring the case is trial-ready within the timetable.

Legal Basis

The key legal basis was UCPR r 7.36. The Court applied the structure of r 7.36(1) and r 7.36(2):

• r 7.36(1): the Court may refer if satisfied it is in the interests of the administration of justice.
• r 7.36(2): the Court may take into account:
  • the means of the litigant,
  • the capacity to obtain legal assistance outside the scheme,
  • the nature and complexity of the proceedings,
  • any other matter considered appropriate.

The Court also made the order under rr 7.36 and 7.41, reflecting the procedural machinery for referral and associated steps.

Evidence Chain

Conclusion: Referral is in the interests of the administration of justice.

Evidence and circumstances supporting that conclusion:

1. Affidavit evidence of present limited means and lack of current income as a barrister.
2. Affidavit evidence of attempts to secure speculative representation without success.
3. Property valuation evidence suggesting potential long-term assets, but not proving present liquidity.
4. Pleadings revealing lack of precision, especially in the claim against the Second Defendant.
5. Procedural history of delay and the imposition of a strict future timetable.
6. Nature of allegations requiring sensitive handling, including anticipated cross-examination.
7. Court’s observation of interactions with the Bench indicating that detached representation would assist the conduct of the case.

This chain shows how the Court built the decision as “Conclusion = Evidence + Rule-based discretionary factors”, rather than as a moral judgement on the parties.

Judicial Original Quotation

“the means of the litigant is but one matter to be taken into account”

This matters because it frames the entire discretionary approach: the Court is not trapped by a single factor, and it prevents a party opposing referral from reducing the decision to a contested balance sheet.

“I think it is in the interests of the administration of justice that I do so”

This is the decisive statutory language in judicial form: it directly satisfies r 7.36(1) and links the order to the Court’s institutional responsibility.

Analysis of the Losing Party’s Failure

The opposing Defendant’s failure was not because the objections lacked force. The submissions had persuasive elements, particularly:

• the fairness concern about privately funded costs,
• the allegation that the Plaintiff was capable and professionally trained,
• the argument that the Plaintiff may have substantial assets.

However, the opposition failed because it did not overcome the central judicial conclusion: that detached representation would advance the administration of justice given the nature of the allegations, the procedural history, and the need for pleading precision under a newly imposed timetable.

Specifically:

1. Overemphasis on means
   • The opposition attempted to centre the dispute on whether the Plaintiff was truly impecunious.
   • The Court treated means as relevant but non-determinative, and accepted the Plaintiff’s evidence for the limited purpose of the application.
2. Conflation of capacity with suitability
   • The opposition treated the Plaintiff’s barrister status as a decisive answer.
   • The Court treated it as a factor, but held suitability and the administration of justice required detachment, not merely competence.
3. Underweighting the procedural risk profile
   • The opposition did not sufficiently neutralise the Court’s concern about pleadings needing redrafting and the necessity of objective legal work to align the matters with the timetable.
4. Underestimating the sensitivity dimension
   • The Court treated the sexual assault allegations as requiring careful handling and support through representation, not as a reason to deny referral.

In short, the opposition failed because the Court’s discretion was driven by forward-looking case management and process integrity, not backward-looking arguments about who has paid what so far.

Implications

1. You do not need to be perfect to take a procedurally protective step
   • Courts can act to protect the fairness and efficiency of proceedings even where a party’s financial story is contested. Your task is to present a credible, sworn, and coherent account that addresses the rule’s factors.
2. Capacity is not the same as safety
   • Being intelligent, educated, or professionally trained does not guarantee you can run your own case effectively, especially where the dispute is personal, high-stakes, or emotionally intense. Real strength is choosing structures that help you think clearly.
3. Precision is power
   • Many civil cases collapse not because the core story is wrong, but because pleadings are vague, particulars are unclear, or deadlines are missed. Self-agency in litigation means learning the discipline of clarity: what happened, when, how it matters legally, and what remedy you seek.
4. The Court’s priority is the process, not the drama
   • Even when allegations are serious and painful, the Court must manage evidence, fairness, and timetables. Align your approach with those priorities: provide sworn evidence, keep submissions focused, and comply with directions.
5. Do not treat help as weakness
   • Seeking representation, advice, or procedural support is not surrender. It is a strategic act of self-protection. The most empowering move is to build a team and a plan that reduces avoidable risk.

Q&A Session

Q1: Does a referral order mean the party will definitely get a free lawyer?
A1: No. A referral triggers a process through the Registrar to attempt to arrange assistance from the Pro Bono Panel. Availability depends on capacity and willingness of practitioners to accept the referral.

Q2: If a party owns or may receive valuable property, can the Court still refer them for pro bono assistance?
A2: Yes, depending on circumstances. The Court may focus on present access to funds, and in any event “means” is only one factor. The Court can also consider the nature of the proceedings, procedural history, and what will best advance the administration of justice.

Q3: If the self-represented party is a lawyer, will the Court refuse pro bono referral?
A3: Not necessarily. Professional status is relevant to capacity, but the Court can still decide that detached representation is desirable, particularly in sensitive matters or where pleadings and case management require objective legal work.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Civil Procedure, Pro Bono Referral Application under UCPR r 7.36 in long-running sensitive civil proceedings

Judgment Nature Definition: Interlocutory procedural ruling

2. Self-examination of Core Statutory Elements

This case belongs to category ⑨ Civil Litigation and Dispute Resolution.

Core Test Standards to Self-check in Similar Applications

Step 1: Identify the Court’s power and the correct procedural rule
– Confirm the rule conferring the power to refer to the Registrar for pro bono assistance.
– In New South Wales Supreme Court civil proceedings, the relevant framework is the Uniform Civil Procedure Rules 2005 (NSW), particularly r 7.36, and any linked provisions governing the operation of referral and termination.

Step 2: Frame the correct legal question in administration-of-justice terms
– The controlling question is not “Does the litigant deserve help?”.
– The controlling question is whether referral is in the interests of the administration of justice.
– This usually requires showing how referral will improve fairness, efficiency, and the quality of adjudication, particularly where future hearings, pleadings, evidence, or cross-examination are at stake.

Step 3: Address each discretionary factor with evidence, not assertion
– Means of the litigant:
– Provide sworn evidence of income, expenses, assets, liabilities, and current liquidity.
– If assets exist but are inaccessible, explain why they are not presently available, and what steps have been taken to access them.
– Present the picture in a way that shows present inability to fund representation, recognising that this can be contested.

• Capacity to obtain legal assistance outside the scheme:
  • Document attempts to obtain private representation.
  • If speculative or conditional arrangements were sought, provide details of who was approached, when, and what response was received.
  • Explain any features of the case that make it difficult to place privately, such as sensitivity, complexity, or procedural history.
• Nature and complexity of the proceedings:
  • Complexity can be legal, factual, procedural, or evidentiary.
  • Even if legal complexity is moderate, the proceedings may still justify referral if the evidence is sensitive, the pleadings require precision, or cross-examination is likely to be difficult for a self-represented party to conduct or endure.
• Any other matter the Court considers appropriate:
  • Procedural history, delay, timetables, and risk of dismissal for want of prosecution can be highly relevant.
  • Ethical issues and interactions with the Court can also matter, not as punishment, but as signals that detached representation may stabilise the litigation.

Step 4: Demonstrate how referral will concretely improve the conduct of proceedings
– Explain what representation would practically achieve:
– redrafting pleadings and particulars,
– narrowing issues,
– organising evidence, subpoenas, and witness preparation,
– promoting compliance with timetables,
– reducing unnecessary interlocutory disputes,
– improving the efficiency of any future hearing.

Step 5: Acknowledge and manage the fairness concerns of the opposing party
– If the other party is privately funding representation, anticipate arguments about unfairness.
– Respond by focusing on the Court’s responsibility for the integrity of proceedings and the long-term efficiency benefits that can also reduce cost and delay for all parties.
– Avoid framing the application as a personal entitlement; frame it as a process-protective measure.

Step 6: Stay within ethical boundaries, especially if you are legally trained
– Allegations against opposing lawyers are serious.
– If you assert misconduct, ensure you have a proper evidentiary foundation and a procedurally appropriate basis to raise it.
– Unsupported allegations can damage credibility and may expose you to professional consequences if you are a practitioner.

3. Equitable Remedies and Alternative Claims

Even though this judgment concerns a procedural referral, parties in similar civil disputes often need to consider alternative legal pathways when statutory or pleaded causes of action are uncertain, incomplete, or at risk.

Promissory or Proprietary Estoppel

• Consider whether:
  • a clear and unequivocal promise or representation was made by the other party,
  • you relied on it to your detriment,
  • it would be unconscionable for the other party to resile.
• Practical use:
  • This can be relevant where property or financial arrangements are intertwined with the dispute and formal documentation is incomplete.
• Risk note:
  • Estoppel claims tend to be fact-sensitive and can carry relatively high evidentiary risk if the promise is vague or reliance is not clearly proven.

Unjust Enrichment and Constructive Trust

• Consider whether:
  • the other party received a benefit at your expense,
  • retention of that benefit would be against conscience without compensation.
• Practical use:
  • This can provide an alternative route to restitutionary relief where contractual or statutory pathways are uncertain.
• Risk note:
  • These claims often require careful tracing of contributions and a persuasive account of why retention is unjust in the specific circumstances.

Procedural Fairness as a Strategic Frame

• In civil litigation, procedural fairness is not limited to administrative law. It can matter in:
  • applications about evidence, subpoenas, cross-examination arrangements, and hearing management.
• If you are self-represented:
  • you can seek directions that promote fairness, but you must do so with disciplined, rule-based applications rather than broad accusations.

Ancillary Claims and Reframing

• Where one civil cause of action is weak or uncertain, consider whether:
  • the real grievance is better expressed as negligence, breach of duty, or a claim grounded in specific statutory obligations,
  • the pleadings require amendment to articulate the legal duty, breach, causation, and loss with precision.
• Risk note:
  • Reframing tends to require careful pleading and may invite limitation and causation issues, so early advice is often a decisive protective step.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

• Limitation periods:
  • Many civil claims are subject to limitation periods, and delay can raise a relatively high risk of defences based on time bars.
• Jurisdiction:
  • Confirm the correct court and the correct defendant entity, especially in claims involving government bodies.
• Discovery and disclosure:
  • Civil cases can require disciplined compliance with evidence and procedural directions, especially where the history suggests delay.

Exceptional Channels

• If the limitation period may be an issue:
  • examine whether exceptions, postponements, or extension mechanisms are available in the relevant jurisdiction, bearing in mind such applications tend to be determined strictly and are highly fact-specific.
• If pleadings are imprecise:
  • seek leave to amend early, supported by affidavit evidence that explains why amendment is necessary and how the amended pleading will clarify duty, breach, and causation.
• If self-representation is impairing progress:
  • a pro bono referral application can be a practical exception pathway to stabilise the proceedings, but it tends to require evidence showing how referral will advance the administration of justice, not merely how it will assist you personally.

Suggestion: Do not abandon a potential claim simply because you do not meet the standard time or conditions. Carefully compare your circumstances against the exceptions above, as they are often the key to successfully filing a case.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in submissions involving:
– the application of UCPR r 7.36 to pro bono referrals,
– the treatment of “means” as only one discretionary factor,
– the administration-of-justice rationale for referral even where self-representation is legally possible,
– case management considerations where proceedings have delayed and pleadings require precision.

Citation Method

As Positive Support:
– Where your matter involves a self-represented party and the court must decide whether referral will improve pleading precision, case management compliance, or the handling of sensitive evidence, citing this authority can strengthen the argument that referral is justified because it advances the administration of justice.

As a Distinguishing Reference:
– If the opposing party cites this case to resist referral, you can distinguish by emphasising:
– absence of sensitive evidence in your matter,
– clear pleadings and stable procedural history,
– demonstrated capacity to fund representation now,
– demonstrated availability of private representation without the scheme.

Anonymisation Rule:
– When explaining the case in professional documents, use procedural titles such as Plaintiff and Defendant, rather than names, particularly where privacy or sensitive allegations are involved.

Conclusion

This judgment shows that pro bono referral is not a prize for need alone. It is a procedural tool the Court may deploy to protect the integrity of civil justice: clearer pleadings, steadier case management, and a fairer process for evidence that is difficult, sensitive, and disputed.

Golden Sentence:
Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales (Longin v Tomordi; Longin v Department of Communities and Justice [2024] NSWSC 1248), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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