Background
6 The factual background to this matter can be conveniently summarised as follows.
7 Between 2011 and 2018, NOH Legal and Mr El-Hissi were retained from time to time by Mr El Saafin's family company, Saafin Constructions Pty Ltd, by Mr El Saafin's brothers, and on occasion by Mr El Saafin himself. The matters in which Mr El-Hissi acted for Mr El Saafin directly were in respect of a draft joint venture deed regarding a potential development in Brighton and, it appears, a debt recovery matter in the Magistrates' Court in which Mr El Saafin was a named defendant.
8 Mr El-Hissi deposed to the fact that he was not the 'lawyer of choice' for Mr El Saafin or Saafin Constructions and never received any confidential information from either during the course of his limited engagements. Mr El-Hissi also maintained that he did not have any relevant knowledge about the financial position or strategic interests of Mr El Saafin or Saafin Constructions.
9 In May 2018, a proceeding was commenced by Mr El Saafin's brothers (Hassan and Mohamed) on behalf of Saafin Constructions in the Supreme Court in relation to a property development at 65-67 Arden Street, North Melbourne (the Supreme Court Proceeding). George Sacca, the First Plaintiff in this proceeding, is a defendant in that proceeding and NOH Legal were originally retained to act in the matter on behalf of some of the defendants (including Mr Sacca). The Supreme Court Proceeding concerns different entities and different issues, such that there is in substance no commonality of facts between the matters being agitated in the Supreme Court Proceeding and the present proceeding.
10 On 24 May 2018, Mr El Saafin and his brother, Hassan, complained to the Legal Services Commissioner (LSC) regarding Mr El-Hissi's involvement in the Supreme Court Proceeding. Mr Mazaris of the LSC notified Mr El-Hissi of the complaint on 29 May 2018. On 31 May 2018, Mr Mazaris wrote to Mr El-Hissi with a proposal that Mr El Saafin and his brother had put forward to resolve the complaint. Mr El-Hissi accepted the proposal on the following day, 1 June 2018, agreeing to cease to act against Mr El Saafin, his brothers and Saafin Constructions on the basis that the complaint would be withdrawn.
11 In the course of agreeing to cease acting in the Supreme Court Proceeding, Mr El-Hissi did not make any admission of wrongdoing nor did he provide any undertaking to the LSC. Indeed, the complaint was expressly resolved on the basis that if Mr El-Hissi started to act against either of them again at some point in the future, they could renew their complaint or file a new one.
12 Following these events, NOH Legal was replaced as the solicitor on the record by Mark Halse in the Supreme Court Proceeding. It appears that Mr El-Hissi continued to provide some limited assistance to Mr Halse. Indeed, in an email dated 4 September 2018, Mr El-Hissi acknowledged that he had assisted Mr Halse with the drafting of documents from June 2018 to August 2018 but maintained that neither he nor NOH Legal had acted as solicitor for any of the parties to the Supreme Court Proceeding after the complaint was resolved on 1 June 2018.
13 On 10 September 2018, an interim injunction was granted, by consent, to restrain Mr El-Hissi from acting. A further order was made on 17 September 2018 to the same effect. This injunction remains in place because, for reasons that are not presently relevant, the hearing of an application to restrain Mr El-Hissi from acting in the Supreme Court Proceeding was adjourned until late 2020, by which time Mr El-Hissi formed the view that it was impractical to have the restraint application heard and determined prior to the trial scheduled to commence in February 2021. At no time has there been an adjudication on the merits of the restraint application nor any findings made in relation to a potential conflict of interest in the Supreme Court Proceeding.
14 The present proceeding was filed on 12 November 2018. Before filing the proceeding, Mr El-Hissi contacted Mr El Saafin on 24 September 2018 stating, amongst other things, "[s]o as to ensure our client is not disadvantaged by a delay tactic of referring a potential conflict to the Legal Services Commissioner's office at a later stage in the proceeding, we ask that you advise whether you intend to raise an issue in respect of our engagement." On 26 September 2018, Mr Nair replied, confirming that he acted on behalf of Mr El Saafin and objected to Mr El-Hissi and NOH Legal acting in this proceeding. After some further correspondence, Mr Nair wrote to Mr El-Hissi on 2 October 2018 indicating that if Mr El-Hissi or NOH Legal continued to act in relation to the present dispute, they would bring an application seeking orders to restrain Mr El-Hissi from acting.
15 On 23 November 2018, a first case management hearing was held before Justice Moshinsky. At that hearing, Mr El Saafin was represented by Mr Nair of Hicks Oakley Chessell Williams and Joseph Carney of counsel. Mr El-Hissi appeared for the Plaintiffs. Counsel for Mr El Saafin foreshadowed, at that time, bringing an application to restrain Mr El-Hissi. Accordingly, orders were made requiring such an application to be filed by 6 December 2018. It is significant that, on 12 December 2018, Hicks Oakley Chessell Williams filed written submissions in this matter, settled by Mr Carney, which stated that, having considered the issue "no point is to be taken." As will become apparent, this was the first of many opportunities that Mr El Saafin had to bring the present application.
16 At a hearing before me on 17 October 2019, Mr El Saafin (then self-represented) raised the question of Mr El-Hissi acting in the matter, at which time I informed him that he was entitled to bring an application to restrain Mr El-Hissi from acting if so advised. At a further hearing before me on 30 October 2019, Mr El Saafin again raised the issue of seeking to restrain Mr El-Hissi from acting. In response, I said: "I made this clear, I think, on the last occasion, if you want to…make an application to this [C]ourt to restrain Mr El-Hissi from acting in this proceeding, you will have to make that formally as a separate application."
17 Notwithstanding my direction at the time, Mr El Saafin did not make any application to restrain Mr El-Hissi from acting for the Plaintiffs in this proceeding at or about that time. Instead, on 19 December 2019, Mr El Saafin made a complaint to the LSC regarding Mr El-Hissi's continued involvement in the proceeding. Mr Nair deposes to the fact that this complaint was only made in relation to Nadia El-Hissi, a solicitor employed by NOH Legal. There is contrary evidence from Mr El-Hissi, who indicates that his communications with Mr Mazaris at that time related to the involvement of NOH Legal generally.
18 In any event, it is clear that Mr El-Hissi wrote to Mr Mazaris at the LSC on 21 February 2021, setting out the matters I have referred to above and submitting that the complaint "is frivolous and vexatious" and ought to be dismissed as an abuse of process. On 24 February 2020, Mr El-Hissi received an email from Mr Mazaris confirming that Mr El Saafin had withdrawn the complaint lodged with the LSC. This was yet a further election by Mr El Saafin not to bring an application to restrain Mr El-Hissi and / or NOH Legal from acting against him in the present proceeding.
19 On 14 August 2020, I made orders listing the matter for trial (on an estimate of three days) commencing on 1 March 2021. I also made consequential orders extending the time for compliance with my orders made on 5 December 2019 in relation to pre-trial discovery, witness outlines, expert reports, and the preparation and filing of a court book. As at mid-February 2021, the Plaintiffs had complied with the pre-trial directions and it appeared that they were in a position to proceed with the trial on 1 March 2021. Mr El Saafin, on the other hand, had effectively ceased communicating with NOH Legal and had not complied with pre-trial directions.
20 On 8 February 2021, Mr El Saafin wrote to the Court asking for an extension of time to comply with pre-trial orders and, as a corollary of this, an adjournment of the trial fixed for 1 March 2021. Accordingly, I listed the matter for a case management hearing on 15 February 2021, at which time Mr El Saafin referred, in a general way, to ongoing settlement discussions and requested an adjournment. I adjourned the case management hearing until 23 February 2021 and informed Mr El Saafin that he either needed to comply with pre-trial directions or make a formal application, supported by affidavit material, for an adjournment of the hearing fixed for 1 March 2021.
21 On 23 February 2021, approximately two hours before the case management hearing was scheduled to commence, and without prior notice, Mr El Saafin filed the present application to restrain Mr El-Hissi. Despite my reluctance to do so, I decided to vacate the hearing and list the present application for determination on 3 March 2021. I did so because the lateness of the application made it effectively impossible in my view to determine a matter of such seriousness without allowing both parties to file affidavit material and submissions, and without having an opportunity to hear full argument.
22 It is apparent from the context set out above that:
(1) in November and December 2018, Mr El Saafin elected not to bring any restraint application against Mr El-Hissi, despite being legally represented and assisted by counsel;
(2) on several occasions thereafter, and as early as October 2019, I informed Mr El Saafin that he may bring an application to restrain Mr El-Hissi but must do so formally and promptly; and
(3) it was not until a few days before the hearing was scheduled to commence that Mr El Saafin made the present application.
23 I pause to add that Mr Sacca is an elderly man of 77 years of age having been born on 17 January 1944. At the core of this proceeding is a transaction in which Mr Sacca obtained a loan to finance the purchase of a property at Unit 3, 357 Barry Road, Campbellfield and the LBC Radio Station from the Commonwealth Bank for a total sum of $1 million. The facility is guaranteed by Mr Sacca and his wife, who continue to be liable for the finance facility, at an average cost of $2,000-$3,000 per month.
24 There can be no doubt that the delay in bringing this application, which resulted in an adjournment of the hearing scheduled to commence on 1 March 2021, had the potential to cause financial loss and additional stress to Mr Sacca. The delay in bringing this application, and the prejudice caused to the Plaintiffs by the delay in hearing the proceeding if Mr El-Hissi was to be restrained from acting, are significant matters which inform my decision to dismiss the present application.