By way of notice of motion, dated 10 February 2021, the solicitor for the plaintiff seeks to withdraw from the proceedings and leave to file and serve a Notice of Ceasing to Act. These reasons are provided in the matter of Mohamad Hamoui, 2018/00120746, however, the same motion has been filed in the related proceedings of Bilal Baradeaji. The reasons I provide and the orders I make apply in that matter as well.
In support of the application, the plaintiff relies upon an affidavit of Stephen Spinak, of 10 February 21, over which privilege has been claimed, and not disputed by senior counsel for the insurer. I have read the affidavits and have an understanding of the solicitor's position. I have also had regard to exhibit B, being a series of email exchanges commencing May 2020. That is the evidence upon with the plaintiff's solicitor relies to seek leave to cease acting for his clients.
Mr Jobson of counsel has indicated from the bar table that, in conference, advice has being provided to the plaintiffs as to their prospects of success, and that that advice has not been followed by the solicitors, with the consequence that the proceedings are to continue.
It may be inferred, if it was not sufficiently expressly stated, that the advice given by the solicitor for the plaintiff and Mr Jobson was to the effect that the plaintiff's prospects of success were poor.
The plaintiff's solicitor and Mr Jobson are in a difficult position. However, as is apparent from the affidavit of Madeleine McCallum of 11 February 21 (Exhibit 1) and the affidavit prepared by the senior counsel for the insurer (MFI 1) the position in which the solicitor is in is of his own making.
On 24 October 2017, the solicitor received from lawyers acting for the insurer a s 81 notice, denying liability in respect of the subject motor vehicle accident, said to have occurred on 17 April 2016. In order to succeed in the action against the defendants, the plaintiff must establish fault on the part of the first defendant. What is apparent from the reports which were served together with the s 81 notice on 24 October 17 is that serious doubts were raised as to the version of events provided by the plaintiffs in their respective claim forms, and I infer instructions which they provided to the solicitor acting for the plaintiff.
Hamoui v Hamaoui [2021] NSWDC 162 | Case summary | Zoe
I note that in the letter of 24 October 17 from Moray & Agnew Lawyers acting for the insurer, it was stated "Based on the records noted above, our client alleges this claim is being made on fraudulent grounds".
Attached to that was a report from Mr Renzo Alessi of 20 October 16. Mr Alessi's report is extremely detailed and comprehensive. It appears scientific and is persuasive in nature. Mr Alessi concluded, at para 20 of his report, that,
"All in all, it would appear that the insured vehicle was stationary just prior to impact, and accelerated abruptly within seconds of impact, into a vehicle that was travelling towards us. However, the scientific reconstruction damage profiles may be best left to a crash reconstruction expert for their opinion."
That scientific conclusion is inconsistent with the case sought to be advanced by the plaintiffs and, again, I infer the instructions provided by the plaintiff to the solicitor for the plaintiff.
Also served upon the solicitor for the plaintiff in October 2017 was a report by a Mark Sculthorpe, an accident reconstructionist. The report is dated 1 August 2017. Mr Sculthorpe carried out a full analysis of the accident, including reviewing colour thumbnail images of one of the vehicles involved, and photographs of another.
FITZSIMMONS: Page 13 of the report, if it assists your Honour, 1.32.
HIS HONOUR: Yes, before I get to point 1.32 however, at para 1.31, Mr Sculthorpe, having regard to the objective data available to him by reason of the crash data recorded by the vehicle's system, identifies a large number of matters which were not consistent with the accident as alleged by the plaintiffs. In para 1.32, Mr Sculthorpe said,
"At no time during the insured Holden's final five second pre-crash journey was it moving at or about 60 kilometres per hour. At no time during the insured vehicle's final five seconds were its brakes applied to reduce its speed in the manner that might otherwise have suggested evasive tactics. Instead, the vehicle was stationary until 2.5 seconds from impact, when it was accelerated as heavily and continuously as it could have been, into direct impact with another vehicle, presumed to be the Nissan. That vehicle movement is not in any way consistent with, nor does it even vaguely resemble, the elaborate description of collision provided by the insurer within their statement of 18 October 2016."
At para 1.39, he expresses further opinions which raise very serious doubts as to the reliability of the accounts provided by the plaintiffs and the first defendant as to how the accident occurred.
That material, as I have indicated, was available to the solicitor for the plaintiff in October 2017. On 19 December 2017, the matter was exempted by a certificate from CARS, enabling the solicitor to commence proceedings in this court, which was done by way of statement of claim filed 20 April 2018.
The statement of claim provides a certification by the solicitor in accordance with cl 4 of sch 2 of the Legal Profession Uniform Law Application Act 2014, "That there are reasonable grounds for believing, on the basis of provable facts and a reasonably arguable view of the law that the claim in damages in these proceedings has reasonable prospects of success".
When that certification was made by the solicitor for the plaintiff, he was in possession of the two scientific expert reports to which reference has been made, and no attempts had been made by him at that time, so far as I can tell, to analyse or in any way consider the reliability of those opinions, and the unreliability of the accounts provided by his solicitors. It is not sufficient to sign such a certificate simply based upon the subjective accounts provided by the plaintiffs in ignorance of the scientific data and opinions which were at hand at the time.
In May 2018, the insurer, pursuant to s 119 of the Act, sought to be joined as the second defendant to the proceedings. At that time, reliance was placed upon an affidavit of James Daintin-Glough, which again annex those various reports to which reference has been made.
On 26 October 2018, the defence was filed on behalf of the second defendant, the insurer, pleading reliance upon the expert reports of Mr Alessi and Mr Sculthorpe. At a directions hearing on 29 October 2018, an order was made that the plaintiff was to finalise expert evidence by 30 November 2018. That did not occur. The defendant's solicitor, acting diligently, wrote to the solicitor for the plaintiff on 5 February 2019, asking whether or not the plaintiffs intended to rely upon expert evidence.
At a directions hearing on 21 March 2019, the matter was set down for hearing for three days on 3 July 2019. On 6 June 2019 a notice of motion was filed and supported by an affidavit of Mr Jobson of counsel, indicating that, due to the complexity of the matter, the three days set aside for the hearing was insufficient and that a more accurate estimate was in fact six days. On 3 September 2019, the hearing date was vacated, and a fresh date of 18 May 2020 allocated, with an estimate of six days. That listing was confirmed on 4 November 2019, when the matter was before the court for mention.
On 23 April 2020, the hearing date was vacated due to matters related to COVID-19, and the need for the plaintiffs to appear in person. On 30 April 2020, at a directions hearing, an order was again made that the plaintiff was to serve any expert liability evidence by 28 July 2020. That did not occur.
It was not until 12 May 2020 that the solicitor for the plaintiff wrote to the solicitor for the insurer, referring to the report of Mr Alessi, which had been served on 24 October 2017, requesting, "As a matter of urgency," the crash data chip and records to be reviewed by the plaintiff's traffic engineer expert.
Mr Jobson was mistaken when he indicated to the court earlier that the request was not made until an order was made by the court as to the service of expert evidence by the plaintiff. The first occasion upon which such an order was made was in fact 29 October 2018. It was almost two years later, on 12 May 2020, after a further order had been made, that the request for the material was provided. The crash data material was provided to the solicitor on 2 June 2020.
On 29 October 2020, the solicitor for the plaintiff wrote to the solicitor for the insurer, indicating that he was to obtain instructions in relation to a traffic engineer report; notwithstanding the fact that the court had previously ordered that one be served by 30 November 2018 and again by 20 July 2020, it was in discussion between the solicitors about arranging conclaves with the quantum experts.
In February 2021, just last week, there was further correspondence between the solicitor for the plaintiff and the solicitor for the insurer about raw crash data and the like, relating to the material referred to in the reports by the experts, served in 2017.
On 4 February 2021, the solicitor for the insurer emailed the solicitor for the plaintiff, attaching the crash data file, being the same material provided on 2 June 2020. In a letter date 10 February 2021, that is, two days ago, the solicitor for the plaintiff wrote to the solicitor for the insurer, stating,
"Upon review of the claims and conference with counsel, the writer proposes to cease acting for the plaintiffs. A notice of motion to be listed before the duty judge on Friday will be served by email. I will advise by Friday in relation to the continuation of the conclave."
A motion was filed and served that same day.
The legal principles to be applied in relation to an application to be granted leave pursuant to r 7.29(2)(a) of the Uniform Civil Procedure Rules have been set out in authorities provided by senior counsel for the insurer. It is only with the leave of the court that the solicitor may file a notice of change and/or notice of intention within 28 days of a hearing date. I should indicate that these proceedings are listed for hearing with an estimate of six days, commencing Monday week, 22 February 2021, about ten days away. The applicant, Mr Spinak, bears the onus of satisfying the court that leave pursuant to 7.29(2)(a) ought to be granted.
The authorities to which I have been referred include a decision of Pagone J of the Supreme Court of Victoria, in the matter of Investec Bank Australia Limited v Peter Kenneth Mann [2012] VSC 81 (13 March 2012). At para 8, his Honour refers to some of the legal principles relating to the granting of leave in similar circumstances. His Honour pointed out that in that case, there was no explanation provided for the delay in imposing or insisting upon the provision of funds, or the delay in making the application for leave. The same may be said here. There is absolutely no explanation for the delay between 24 October 2017, when the solicitor for the plaintiff was provided with the evidence to be relied upon by the defendant, and this application being filed on 10 February 2021.
On a view most favourable to the solicitor for the plaintiff, the earliest date upon which he turned his mind to the question of challenging the expert scientific opinions served in 2017 was on 12 May 2020, when he sought the crash data information by way of urgency. There was no explanation for the delay between 24 October 2017 and 12 May 2020, during which time the matter had been listed for hearing on two occasions, both of which hearings were vacated, and considerable expense incurred by the insurer in the preparation of the matter for hearing.
Pagone J referred to the need for the solicitor to be full and frank with the Court in seeking leave. It would seem, having regard to Exhibits A and B, that there is some degree of frankness from the solicitor for the plaintiff as to the reason for seeking leave. The decision of Pagone J is of significance in that it illustrates that it is not just the interests of the solicitor or the plaintiffs to which the court has regard, but the inconvenience to the court and to other parties. In particular, in this case, the active defendant, that is, the insurer, the second defendant.
He further highlighted that the need to seek leave in these circumstances was, "To enable the court's work to be performed efficiently and with the confidence of the assistance of practitioners", and that it provides a protection to clients and serves to protect the position of adversaries.
That decision was picked up in a decision of Hallen J in Lezaja v Hannover Life Re of Australasia Ltd (No 2) [2016] NSWSC 167, where, commencing at para 28, his Honour referred to considerations of fairness to the plaintiff, but also considerations of the due administration of justice. His Honour then referred, in para 29, to the comments of Pagone J in Investec Bank Australia Limited.
I have also had regard to the decision of Black J in the matter of SM Project Developments Pty Ltd (in liquidation) [2017] NSWSC 1010, 26 July 2017, in which, at para 3, his Honour referred to an earlier decision of Gzell J in Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171, in which his Honour, in that case, granted leave to the solicitor to cease acting. In that case, as Black J observed, his Honour, that is, Gzell J, found that that notwithstanding the lateness of application, his Honour held that the solicitors had not been dilatory in seeking to extract funds from the client.
That is not the case here. The solicitor for the plaintiff has been dilatory, and acted without diligence in seeking to investigate and form an opinion as to the prospects of his clients' actions in light of the scientific evidence served upon him in October 2017.
Black J referred to the potential adverse implications for the administration of justice, and also the court's obligation under s 56 of the Civil Procedure Act to exercise its discretion in order to promote the just, quick and cheap resolution of the real issues in dispute in the proceedings.
If I were to grant the leave sought by the solicitor, given the lengthy history of this matter and his failure to act with diligence in the management of the actions of the plaintiff, it would offend the principles set out in s 56 of the Civil Procedure Act. The plaintiffs would either be self-represented or represented by a late-engaged legal representative, which may result in the vacation of the imminent hearing date. I find that the proper application of s 56 would result in this application being refused.
The final authority to which I have been referred is a decision of Judge Gibson of this court. Judge Gibson is a very senior member of this Court, who is known for her astute knowledge of legal principles. With her usual directness, she states, at para 20 of her judgment in the matter of Chaouk v Oh [2019] NSWDC 130 (11 June 2009) that, "Law is a profession; it is not just another business. Lawyers who accept instructions from their client owe duties not only to their client, but to the court and just as importantly, to their opponents". Paragraph 21 of her Honour's judgment refers to the importance of public policy and the obligations that lawyers have.
I have had regard to the following factors:
1. the lateness of this application;
2. the fact that the solicitor for the plaintiff was in possession of the material, sought to be relied upon by the insurer as early as 24 October 2017;
3. notwithstanding the persuasive scientific nature of that evidence, he commenced proceedings in this Court, certifying reasonable prospects;
4. the matter has been before the Court on a large number of occasions, and considerable costs have been incurred;
5. the matter has been listed for hearing on three occasions; and
6. the plaintiff was ordered as early as 29 October 2018 to serve any expert evidence upon which the plaintiff intended to rely. Nothing was served at that time. On 30 April, at a directions hearing, the court again ordered that the plaintiff serve expert liability evidence by 28 July 2020. Again, that order was ignored.
It would appear that it was only on or about 10 February 2021 that the solicitor for the plaintiff, "Upon review of the claims and conference with counsel", formed an opinion as to his client's prospects of success in the action, and it is on that basis this application has been brought.
In my opinion, those circumstances justify refusal of the application for the solicitor for the plaintiff to cease acting. I further find that, as a matter of public policy and having regard to the interests of both the administration of justice, the convenience of the court, the convenience to the second defendant, and the costs incurred by the second defendant, it would not be just to grant the leave sought by the solicitor for the plaintiff. Accordingly, the application made by the solicitor to the plaintiff is refused.
[2]
NOTE:
A. These remarks on sentence were revised without access to the Court File.
I certify that the previous 40 paragraphs are the reasons for the Judgment of his Honour Judge D Wilson SC.
J Bailey
Associate
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Decision last updated: 07 May 2021