[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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Judgment
WARD JA: This is an application by the solicitor on the record for the appellant, Mr Keysar Trad, for leave to withdraw from and to cease to act for the appellant in proceedings brought by the appellant in this Court against Harbour Radio Pty Ltd by way of appeal in respect of a decision handed down ex tempore by Stevenson J in the Equity Division duty list on 5 July 2016.
The issue that is raised on the substantive appeal is, in effect, as to whether Stevenson J erred in acting upon observations that were made in a decision handed down in this Court in Trad v Harbour Radio Pty Ltd [2016] NSWCA 80. The dispute is as to the efficacy of the filing of a costs certificate issued by a costs assessor on 18 June 2010 and the respondent's ability to enforce the judgment arising on the filing of the costs certificate pursuant to s 368(5) of the Legal Profession Act 2004 (NSW). In his notice of appeal filed 5 October 2016 the appellant challenges the decision of Stevenson J on the following grounds, first, that his Honour erred in holding that the costs certificate could properly be filed and, second, in considering that his Honour was bound by what the appellant says were obiter observations of this Court.
The summons in relation to the appeal proceedings was filed on 5 July 2016. The matter is listed for hearing in this Court on 23 March 2017. The appellant's Counsel (who remains prepared to act in the proceedings but not without an instructing solicitor) has already prepared an outline of submissions that was filed on 24 February 2017.
The application by the appellant's solicitor for leave (pursuant to r 7.29 of the Uniform Civil Procedure Rules 2005 (NSW)) to withdraw from and cease to act in the appeal proceedings is on the basis of a conflict that the applicant is said to have been alerted to on 7 March 2017. Since that time, the applicant has apparently taken no steps for the preparation of the blue and black appeal books which were due to be filed and served by 10 March 2017 or the orange appeal book which was due to be filed and served by 14 March 2017.
The details of the perceived conflict have not been made known to Mr Trad but were outlined in a confidential affidavit sworn by Mr Mitry, the applicant, on 13 March 2017. Access to that affidavit has been provided to Counsel for the respondent on the basis that it is not to be provided to the respondent. There was no objection to access being granted to that affidavit by any new solicitors who might later be instructed on behalf of Mr Trad.
To date, Mr Trad has not instructed other solicitors to assume the conduct of the proceedings, although he has been in contact with some solicitors who may or may not be prepared to take on the matter. As I understand it, from what Mr Trad has informed me, part of the difficulty in instructing new solicitors was the need for the proposed new solicitors to whom he was speaking to liaise with Counsel who is briefed to act for him in the proceedings and there was some difficulty raised on the part of Counsel in relation to any such discussion. As noted, the barrister briefed to act in the matter continues to be available and prepared to appear for Mr Trad on 23 March but is not prepared to do so without an instructing solicitor.
I have reviewed the confidential affidavit which has been filed in court today. It was conceded, and I think fairly so, by Counsel today appearing for the applicant that "there may be an issue about whether or not what is said in there fits squarely into … what would be described as a conflict". I am of the view that the material disclosed in the confidential affidavit may provide a reason as to why Mr Mitry would prefer not to continue to act in the matter but that it does not give rise to a conflict of interest and duty in the sense in which that would ordinarily be understood. And I am mindful of the fact that there is a limited issue to be debated in the appeal proceedings.
It is not apparent to me that the solicitor's role in instructing Counsel in court to give oral submissions will involve the applicant's solicitor in any conflict of interest and duty. I am also conscious of the provisions in the Civil Procedure Act 2005 (NSW) (see for example s 56) which call for the Court to have regard to the just, quick and cheap resolution of the real issues in dispute in the proceedings. I am not prepared to grant leave for the applicant to withdraw and cease to act in the matter some ten days before the matter has been listed for hearing in those circumstances.
I will direct that the applicant attend expeditiously to the preparation of the blue, black and orange books and that those be served by close of business on Monday 20 March 2017. I should make clear that if, in the interim between now and the 23rd, Mr Trad is able to retain other solicitors to act for him on the 23rd, then there should be no difficulty with leave being granted for Mr Mitry to withdraw and cease to act. And I will give liberty to the appellant to contact my associate if that were to happen between now and the 23rd, so that orders can be made in chambers to that effect.
I should also note that Mr Trad expressed a wish for there to be a lengthy adjournment in order that there could be a mediation of the disputes in relation to costs as between he and the respondent, and referred to other proceedings in which there might be costs issues in dispute that could be resolved in a mediation. I would encourage the parties to seek to resolve the matter by way of mediation if that be possible in the period between now and 23 March.
I would be prepared to make an order for court-annexed mediation, which would be the most cost-efficient way for that to be done, and to make such an order on an urgent basis, but I do not have the dates that would be available. If the parties can reach agreement in relation to a court annexed mediation between now and the 23rd and the parties contact my associate, I will make that order by consent.
I would encourage the parties to seek to resolve whatever costs issues are outstanding between them expeditiously, if for no other reason than that costs continue to be incurred by the parties in dealing with costs issues. They are costs thrown away after costs, as far as I can see.
I will dismiss the notice of motion filed today in court (13 March 2017). I grant leave to the applicant and to the appellant to approach my associate if new solicitors are to be retained, in order for an order to be made giving leave to the applicant's solicitor to withdraw from the proceedings. I also give leave to the appellant and respondent to approach my associate for orders in relation to the referral to an urgent court annexed mediation by consent. I order that the costs of today be the respondent's costs in the cause. I note that in the course of the application today I have made a direction in relation to the restriction of access to the confidential affidavit.
I make the following orders:
1. Dismiss application by the applicant for leave to cease to act for the appellant in the proceedings.
2. Direct the applicant to attend to the preparation of the Blue, Black and Orange Appeal Books to be served on or before by close of business Monday, 20 March 2017.
3. Liberty to the applicant/appellant to apply to Ward JA's Associate for leave for the applicant to withdraw if appellant instructs new solicitors by 23 March 2017.
4. Liberty to appellant/respondent to apply to Ward JA's Associate for consent orders to refer matter for Court-annexed mediation before 23 March 2017 (if agreement be reached for mediation by then).
5. Costs of today's proceedings be the respondent's costs in the cause.
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Decision last updated: 29 March 2017