JOHNSON J: Late on the afternoon of Friday 16 February 2018, I was approached in my capacity as Common Law Duty Judge to make orders in an urgent application on behalf of the Plaintiff, Carolina Gonzalez, in proceedings against the First Defendant, State Coroner of New South Wales.
The application proceeded ex parte and I made certain orders in circumstances explained in my judgment, Gonzalez v State Coroner of New South Wales [2018] NSWSC 153.
The Summons, which was utilised for the purpose of the urgent ex parte application, included within it in paragraph 1, under the heading "Relief Claimed":
"On the undertaking of the solicitors for the Plaintiff to pay the appropriate filing fee, leave be granted to the Plaintiff to file in Court:
(a) this summons;
(b) the Affidavit of Jamil El-Hosni affirmed 16 February 2018."
Upon the basis of that undertaking given by the solicitors for the Plaintiff at the ex parte hearing of the application, I made orders permitting the Summons and the affidavit of Mr El-Hosni to be filed in Court, and then proceeded in the manner outlined in the judgment to which reference has already been made.
The proceedings have been before the Court on a number of occasions since then, being 5 March 2018, 8 March 2018 and 23 March 2018. On 5 March 2018, I granted leave to the Attorney General of New South Wales to intervene in the proceedings and directed that the Attorney General be joined as the Second Defendant.
A number of orders have been made on the occasions when the matter was before the Court and the proceedings are presently listed for hearing as a special fixture before me on 25 September 2018 and, if necessary, 2 October 2018. I have, at the request of the parties, made some orders varying the timetable for the filing and serving of evidence.
The matter was listed for mention again before me next week but, because I am presiding at a criminal trial at Parramatta, I determined that the matter should be listed today on an occasion when I was able to hear the matter in Sydney.
On Wednesday of this week, I was informed for the first time that the filing fee (in the sum of $1,101.00) has not been paid. It appears that letters have been sent by the Registry either to the Plaintiff directly or to her solicitors, on 24 March 2018, 7 April 2018 and 21 April 2018, the last letter being described as a "final letter of demand".
The letter dated 21 April 2018 does not refer to the fact that the payment of filing fees was the subject of an undertaking to the Court. The letter indicates that, if payment is not received within 14 days, consideration would be given to the immediate institution of recovery proceedings without further notice. It is a letter which is clearly appropriate where filing fees are not paid. However, there is an additional and important feature where there was (as here) an undertaking to the Court provided by a solicitor for the Plaintiff which was part of the orders initiating the proceedings.
Having received that notification and having decided in any event to list the matter at a time when the Court could hear it in Sydney, the solicitors for the Plaintiff were informed by email sent by my Associate yesterday morning, that when the matter came before the Court, the parties should be in a position to inform the Court about non-compliance with the undertaking by the legal representatives for the Plaintiff made to the Court on 16 February 2018 to pay the filing fees for the Summons, as well as non-compliance by the Plaintiff with an order contained in the Short Minutes of Order dated 8 June 2018.
This morning when the matter was called, Mr Katsoulas of counsel informed the Court that he was unaware of the email sent by my Associate yesterday and had no knowledge or instructions about the breach of undertaking. I note that Mr Katsoulas was one of the two counsel who appeared for the Plaintiff at the ex parte application on 16 February 2018, although I do not seek to be critical directly of him as he was counsel, and not the solicitor who proffered the undertaking.
The serious nature of an undertaking given to a Court has been recognised in a number of decisions of Courts. In R v Khazaal (2006) 167 A Crim R 565; [2006] NSWSC 1353 at 571 [20] Whealy J noted:
"An undertaking given to the Court is equivalent to an injunction. Observance of it may be enforced in the same way as an injunction is enforced."
In National Australia Bank Limited v Bond Brewing Holdings Limited [1991] 1 VR 386, Murphy J, sitting as a member of the Appeal Division of the Supreme Court of Victoria, observed at 583:
"The giving of an undertaking to the Court in the usual form has been said time and again to be equivalent to an injunction (or at other times, to an order of the Court) and if violated may be made the subject of an application to the Court either for punishment for contempt in an appropriate case or for an order to pay compensation."
In Adams v Zen 28 Pty Limited and Others [2010] QSC 36, Daubney J said at [59] that, where an undertaking is given to the Court by a solicitor, there is no doubt that the solicitor has ostensible authority to give that undertaking on behalf of the client.
The nature of the obligation placed upon solicitors, as officers of the Court, with respect to diligent compliance with undertakings given to the Court is emphasised in the leading work in New South Wales concerning the duties of solicitors, Dal Pont, "Solicitors Manual", The College of Law and LexisNexis, at paragraphs [20,005] and [20,025].
Notably, in very recent times, the New South Wales Civil and Administrative Tribunal has found a legal practitioner guilty of unsatisfactory professional conduct because of a breach of an undertaking volunteered to a Court in Council of the New South Wales Bar Association v Lott [2018] NSWCATOD 99. An eminent bench of the Tribunal (LP Robberds QC, IH Bailey SC and ME Bolt) said at [36] that a reprimand was necessary in that case to bring home to the respondent, and other members of the profession, the seriousness of giving an undertaking to a Court and the care which must be taken by members of the profession as to the accuracy of statements made to judicial officers.
It is, in truth, not necessary to have to spell out what was said in the cases about what is a fundamental rule of practice as a legal practitioner in this State.
In my view, the undertaking having been given to the Court in the late afternoon of Friday 16 February 2018, which was foundational to the application to the Court and the grant of ex parte relief, the obligation lay upon the solicitor who gave that undertaking to ensure that there was compliance with the undertaking to the Court by the payment of the necessary filing fee on the following Monday (the next working day) or as soon thereafter as was reasonable, which would be a matter of days and not weeks, let alone months.
The Supreme Court of New South Wales operates upon the basis that legal practitioners appearing before it will comply with undertakings given to the Court. The Court functions on the basis that legal practitioners should not need to be reminded of their obligations in that respect.
It would be of no assistance to the solicitor for the Plaintiff to indicate that perhaps the matter was not the subject of a reminder or follow-up, although it does appear that correspondence was sent certainly to the Plaintiff's home address. It is not a matter where the Court should be expected to remind a legal practitioner of the need to comply with an undertaking given to the Court.
The approach which I will take is to stand the matter down from the present time, 10.10 am, until 2.00 pm today. It is the expectation of the Court that the undertaking to pay the fees will be satisfied by then. If it is not satisfied by then, I will consider what action is appropriate by way of referral to the Law Society of New South Wales or the Legal Services Commissioner, relying upon the principles referred to in this judgment.
The simple fact is that nearly five months after the Court made orders reliant upon the undertaking to the Court, there is a complete and unexplained failure to comply with the undertaking. I will allow a limited opportunity today for that undertaking to be satisfied. If that is not done by 2.00 pm, I will consider what is the appropriate order to make in those circumstances.
[At 2.00 pm, Mr G James QC and Mr E James appeared for the Plaintiff together with Mr Katsoulas. It was confirmed that the filing fee had been paid. On the application of the parties, the matter was stood over for further mention on 27 July 2018]
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Decision last updated: 27 July 2018