M.&S. Investments Pty Ltd (A.C.N. 109 611 903) v Affordable Demolitions and Excavations Pty Ltd (A.C.N. 160 307 371)

Legislation Cited: Evidence Act 1995 (NSW), s 38
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), rr 3, 13, 101

Category: Procedural rulings

Parties: M.&S. Investments (NSW) Pty Ltd (A.C.N. 109 611 903) (Applicant)
Affordable Demolitions and Excavations Pty Ltd (A.C.N. 160 307 371) (First Respondent) (no appearance)
(Charlie) Chalita Boutros (Second Respondent) (no appearance)
Angela Carbone (Third Respondent)
Domenic Carbone (Fourth Respondent)
Rimon Boutros (Fifth Respondent) (no appearance)

Representation: Counsel:
R Tripodi (Applicant)
A Chhabra, N Carey (Third and Fourth Respondents)
Solicitors:
Watson Stafford & Zipkis Nguyen (Applicant)
Not applicable (Third and Fourth Respondents)

File Number(s): 2021/261150, 2021/261151, 2021/261152, 2021/261153, 2021/261154, 2021/261155, 2021/261156. 2021/261157, 2021/261163, 2021/261164, 2021/261165, 2021/261166, 2021/261167, 2021/261168, 2021/261169, 2021/261170, 2021/261171, 2021/261172, 2021/261173, 2021/261174, 2021/261175, 2021/261176

Publication restriction: Nil.

JUDGMENT – Ex tempore, Revised 18 September 2025

1. McHUGH JA: These applications for leave to appeal arise out of private prosecutions commenced by the applicant in the Land and Environment Court of New South Wales. Mr Richard Tripodi, the applicant's barrister, prepared the written submissions filed on behalf of the applicant on these applications. Mr Tripodi proposes to appear at the hearing today.

2. Mr Tripodi was counsel for the applicant at the hearing of these proceedings at first instance. Written advice that Mr Tripodi had earlier given was of some significance at the hearing. The advice was in evidence.

3. Over objection, Mr Tripodi was called as a witness by one of his opponents. Mr Tripodi gave oral evidence and was, in effect, cross-examined. No formal application was made pursuant to s 38 of the Evidence Act 1995 (NSW), although one had been foreshadowed.

4. I have read the transcript of Mr Tripodi's evidence closely. Putting the matter neutrally, his evidence is relevant to the resolution of some of the issues proposed to be raised in the appeal if leave is granted, and it appears to have been taken into account by the primary judge.

5. Rule 101(e) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (the Bar Rules) provides:

A barrister must refuse to accept or retain a brief or instructions to appear before a court if: ... (e) the brief is to appear on an appeal and the barrister was a witness in the case at first instance …

6. The Court sought submissions from Mr Tripodi in writing and orally as to, (a) why r 101(e) does not apply; and (b) if the rule applies, why the Court should hear Mr Tripodi on the applications for leave. Mr Tripodi submitted as follows.

7. First, that he gave evidence below only under compulsion.

8. Secondly, that it is fairly arguable that there were legal errors made by the first instance judge in acceding to the application to call him as a witness in the decision under appeal.

9. Thirdly, that calling Mr Tripodi was itself a strategy by his opponent to bring about the very situation to which r 101(e) of the Bar Rules is directed, which he submits was itself an abuse of process to which proposed ground 4 of the appeal is directed.

10. Fourthly, that it would cause or compound oppression and injustice to his client if he were not permitted to appear on the appeal, because his client would be forced to find alternative counsel, and bear the significant costs and pressures of having to do so, in circumstances where it is already bearing the significant risks and costs of the prosecutions themselves. Mr Tripodi submitted that there would be no remedy for those costs available even if the applicant succeeded on appeal.

11. Mr Tripodi submits that, in such very unusual circumstances, r 101(e) of the Bar Rules cannot have been intended to have operation; that is to say, his argument is one directed to a question primarily of construction of the Rule.

12. I do not agree with Mr Tripodi's construction. As to Mr Tripodi's first submission, the Rule does not distinguish the situation where the barrister gives evidence voluntarily from that in which the barrister is compelled. The purpose of the Rule is to avoid the embarrassment occasioned by the risk (which in the circumstances of this case is a certainty) that counsel may be required to make submissions about their own evidence. Mr Tripodi relied on the objects of the Bar Rules set out in rr 3(b) and (d) which provide as follows:

The object of these Rules is to ensure that barristers:

…

(b) act independently,

…

(d) provide services of the highest standard unaffected by personal interest.

13. I consider that those objects support a construction of the Rule which does not allow for any exception in the circumstances for which Mr Tripodi contends; that is, the circumstances which arose in the present situation.

14. Mr Tripodi also referred to r 13(c), which provides:

A barrister must not, subject to rules 14 and 15:

…

(c) place herself or himself at risk of becoming a witness, by investigating facts for the purposes of appearing as an advocate or giving legal advice, otherwise than by: …

— and then there are various conventional steps set out.

15. That Rule is consistent with an absolute view of r 101(e) (i.e. that the Rule is not subject to any exception), in that r 13(c) is directed to avoiding even the risk that counsel may become a witness in the proceeding. It does not, in my opinion, operate to limit the scope of the matters which would engage r 101(e) by directing attention to the circumstances identified in r 13(c).

16. As to Mr Tripodi's second and third submissions, even if the propositions asserted in those submissions were uncontested, I would not be persuaded that r 101(e) is not intended to apply in those circumstances. Its rationale would still apply. Contrary to one of Mr Tripodi's submissions made orally today, it is irrelevant that the same points may already have been argued by Mr Tripodi at first instance.

17. But there is an anterior problem. The premises of Mr Tripodi's argument are all contested. Indeed, they are matters which he seeks to establish in the proposed appeal. It is not enough that the points may be arguable. The Court cannot rule in Mr Tripodi's favour on the question whether he should be permitted to appear on the appeal without first determining controversial parts of the substance of the appeal.

18. As to Mr Tripodi's fourth submission, the inconvenience and cost of replacing him, and the inevitable, on his submission, irrecoverability of those costs is highly regrettable, but those matters are occasioned by the operation of the Rule. They do not provide a proper basis for interpreting the Rule as not applying in the circumstances before the Court.

19. Mr Tripodi submitted that if the Rule does apply the Court should, nevertheless, hear him on the applications for leave because of the prejudice that his client will otherwise suffer. I do not accept that submission. Mr Tripodi is an officer of the Court. The Bar Rules have the force of law. I would not hear him if it involves him breaching the Bar Rules.

20. Mr Tripodi should not be heard on the applications for leave to appeal.

21. In those circumstances, it being accepted that the applications for leave to appeal cannot fairly proceed today, the orders that I propose are that the hearing be vacated and that the matter be listed before the registrar at the callover on 25 September 2025.

22. GARLING J: I am of the same opinion and agree with the reasons of the presiding judge.

23. N ADAMS J: I agree with McHugh JA.

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