Solicitors:
In person (Applicant)
Office of the Crown Solicitor (Respondent)
File Number(s): 2017/384578
[2]
[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.]
[3]
Judgment
HER HONOUR: The applicant, Ms Maureen Mary Young, has filed in court an amended urgent notice of motion, which states that: its aim is to address three matters before the Supreme Court; it is in substitution for motions filed on 1 and 15 March 2018; and it is to consolidate the orders sought in those motions. The proceedings to which reference is made are as follows:
1. Proceedings commenced in 2013 and determined by Button J. This proceeding related, inter alia, to the amendment of a cross-claim brought by Ms Young in response to proceedings that had initially been commenced in the Local Court by the respondent for the recovery of rent for the houseboat that Ms Young occupies pursuant to an agreement with the respondent. It will be convenient to refer to that proceeding as the cross-claim proceedings;
2. A summons seeking leave to appeal from a decision of Latham J given on 15 December 2017; and
3. Possession proceedings which have been brought by the respondent in the Supreme Court, seeking possession of the houseboat.
In her notice of motion, Ms Young seeks 10 specific orders as follows:
"Order 1. The parties are ordered to attend a Court-annexed mediation that shall be held on Thursday, 3 May 2018; the Attendees are to be limited to the Applicant, the Respondents representative and the appointed Mediator. Secretarial services should be in attendance for agreement documents to be drawn up at the mediation.
Order 2. The Court of Appeal Registrar in cooperation with the Possessions List Registrar, shall assign the mediation to a Mediator with commercial law and specifically property/acquisition law, expertise.
Order 3. With the concurrence of the Possession and Common Law Registrars, Stay's will apply to Proceedings; 2013/249441; 2018/83808; and 2017/384578 until the mediations are finalised and stays lifted by the Court.
Order 4. The party's Attendees at mediation are to liaise and then prepare their submission for the Mediator, to be received by the Mediator by Monday 30 April 2018.
Order 5. Mediation must be concluded and all settlement documents if applicable, settled by Friday, 18 May 2018.
Order 6. The hearing dated and relevant orders made on 9 April, for the Summons matter 2017/384578 to be heard on 3 May 2018, is vacated until further directions.
Order 7. Further directions shall be heard on Monday 21 May 2018, or for return on 2 days' notice if the circumstances require it.
Order 8. The motion to set aside the Orders of Simpson JA. dated 1 March 2018 hearing, is to now to be included in the Summons 2017/384578 hearing which for the time being is reserved.
Order 9. Any settlement by mediation will be on a no fault basis for the parties. In the spirit of that, it would not be appropriate where a parties legal representative have in the course of their carriage of the matters, had conflict of interests for them to attend at mediation. Court mediation cannot be prejudiced. The parties take part in good faith to achieve a, just, quick and cheap resolve. For these matters, mediation it is long overdue.
The Respondents are the NSW Government. In considering Orders 7 and 8 of the Applicants 15 March 2018 Motion, and the support Affidavit to this Motion, under the circumstances it is necessary for the Respondents or via the Attorney General to be ordered to appoint a new authorised independent representative for the mediation. He/she must have authority to bind the Respondent's to any agreements made between the parties at the mediation. Such agreements made are to be in writing and signed off by the Applicant and Respondents representative and witnessed by a JP at the mediation.
Order 10. Orders 7 & 8 of the Applicants Motion dated 14 March 2018 and filled on 15 March 2018 are to be held in reserve until the outcome of mediation is known."
In essence, the notice of motion raises three issues: first, whether an order should be made for court-annexed mediation; secondly, whether the Court should direct the Crown Solicitor, who is the solicitor on the record for the respondent, not to attend the mediation and that the respondent or the Attorney-General be ordered to appoint a new authorised independent legal representative for the respondent for the purposes of the mediation; and thirdly, what procedural steps should be taken by Ms Young to review the decision of Simpson JA of 1 March 2018 in which her Honour refused a stay of the orders of Latham J.
Two consequential matters also arise. The first relates to the hearing date of the summons seeking leave to appeal from the decision of Latham J. The second is whether any application for the review of the decision of Simpson JA should be heard at the same time as the summons seeking leave to appeal, or at some other time. In the summons seeking leave to appeal from the decision of Latham J, Ms Young also seeks an order that a five judge bench of the Court of Appeal be convened to reopen the Court's decision of 1 September 2016, in which Simpson JA and I heard Ms Young's summons seeking leave to appeal from the decisions of Hidden J and Button J.
It is convenient to deal with the second issue at the outset, namely, the application for new independent legal representatives to be appointed by the respondent or via the Attorney-General to attend on the mediation. Ms Young seeks the removal of the Crown Solicitor as the legal representative for the respondent on the basis that the Crown Solicitor has a conflict of interest.
Ms Young contends that the conflict of interest arises because the Crown Solicitor relied upon a stay of the Local Court proceedings commenced by the respondent seeking to recover rent, and in which Ms Young filed a cross-claim, as the basis for not filing a defence to her cross-claim whilst her application for the transfer of the Local Court proceedings to the Supreme Court was pending.
Ms Young contended that the respondent knew at all times that it was required to file a defence. She contended that this was demonstrated by correspondence between herself and the Crown Solicitor. In that regard, Ms Young relied upon an email dated 14 July 2014 from Robert Ghanem, a solicitor employed by the Crown Solicitor, in which he informed Ms Young of his instructions in relation to a directions hearing that was to be held on 15 July 2014 in relation to the transfer of proceedings from the Local Court to the Supreme Court. In that email, Mr Ghanem informed Ms Young that the respondent would give provisional consent to the transfer of the proceedings provided that the amount claimed in the cross-claim fell within the Court's jurisdiction. He also said in the email that the respondent would seek a timetable to file its defence to the cross-claim by 15 October 2014.
In response to the application that the Crown Solicitor be directed not to attend the mediation and that there be new independent legal representatives appointed for the mediation, the respondent relied upon the Crown Solicitor's letter to Ms Young of 18 September 2014, in which it was pointed out that the respondent had not yet been required by the Supreme Court to file a defence as the proceedings in the Local Court had been stayed. The letter continued that the respondent had been considering its position since it had received Ms Young's evidence and stated that, having considered that material, including affidavits served on 28 August 2014, it did not consider that the matters asserted in Ms Young's cross-claim disclosed any arguable cause of action.
Thereafter, amongst other procedural applications that came before the Supreme Court, in addition to the application for a transfer of the proceedings, the respondent filed an application to strike out the cross-claim on the basis that it did not disclose an arguable cause of action.
In Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181, Brereton J considered the principles that apply when the Court's intervention is sought to restrain a solicitor from acting. As I have indicated, Ms Young in her amended urgent notice of motion seeks to restrain the Crown Solicitor from acting or attending on or at the mediation. Nonetheless, I consider that the principles stated by Brereton J apply to the determination of that issue, as they would have had the application been broader, so as to seek that the Crown Solicitor not act at all.
In Kallinicos v Hunt, Brereton J, at [76], stated that the authorities establish that:
"… the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice." (citations omitted)
His Honour continued that the test to be applied in the application of the Court's inherent jurisdiction is whether:
"… a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice." (citations omitted)
In my opinion, Ms Young has not established a basis for the order that she seeks in order 9 of the amended urgent notice of motion. Litigation is an evolving process and it is clear from the Crown Solicitor's letter of 18 September 2014 that having had the opportunity to review the material that Ms Young had served, the opinion had been formed that Ms Young had no arguable cause of action as pleaded in her cross-claim.
The material to which the Crown Solicitor referred in the letter of 18 September 2014 had been filed subsequent to Mr Ghanem's email of 14 July 2014. The intended import of Mr Ghanem's email was to indicate that, assuming that the proceedings would be transferred from the Local Court to the Supreme Court, the respondent would consent to a timetable for the filing of defences.
There was nothing improper or which raised a conflict of interest for the Crown Solicitor, with the benefit of examining material subsequently filed by Ms Young, to decide to seek to have Ms Young's cross-claim struck out. It was then a matter for the Court to determine that application. Had the application to strike out the cross-claim been unsuccessful, it would have been necessary for the respondent to file a defence to the cross-claim, as directed by the Court or pursuant to an agreed timetable. As it turned out, the respondent was successful in having the cross-claim struck out, so that the filing of a defence became unnecessary.
At the time that the cross-claim was struck out, Button J, who had heard the application together with a number of other notices of motion, gave a conditional form of leave to Ms Young to re-plead the cross-claim. Ms Young sought leave to appeal from Button J's decision and was partially successful, insofar as it related to the conditional aspect of the order granting leave to re-plead. Ms Young subsequently filed a summons seeking special leave to the High Court from this Court's decision on the leave application. Special leave was refused.
In the meantime, the respondent had consented to orders that Button J's orders, giving conditional leave to re-plead, be vacated. This meant, and the respondent stated that this had always been its position, that having agreed to the orders made by Button J, there was no impediment to Ms Young re-pleading the cross-claim and filing a defence to the respondent's claim for unpaid rent. I am informed, and this is not disputed, that Ms Young neither re-pleaded the cross-claim, nor did she file a defence to the claim for rent.
Ms Young, in her submissions, proffered an explanation as to why she did not file a re-pleaded or amended cross-claim. That matter is not before me and I make no comment upon her reasons for not doing so. I have already indicated the matters that are in issue on the urgent amended notice of motion.
I reiterate, however, that I do not consider that Ms Young has established a basis for an order that the Crown Solicitor not attend any mediation, or that the respondent or the Attorney-General be ordered to appoint a new independent legal representative. Accordingly, I reject that aspect of Ms Young's amended urgent notice of motion.
The other significant issue or claim that Ms Young makes in her amended urgent notice of motion is an order for mediation. Ms Young seeks that order for a number of reasons, as is apparent from the opening paragraph of her amended urgent notice of motion and also from the orders that she seeks. The respondent opposes mediation, although recognises the seriousness of doing so. The Court can, of course, make an order for mediation in the absence of consent and it is the experience of the Court that, from time to time, agreement is reached, notwithstanding that one party goes into a mediation having opposed an order having been made.
The difficulty, however, is that Ms Young seeks to re-agitate at a mediation matters which have already been the subject of determination by Button J, by this Court and by the High Court's refusal of the special leave application to which I have referred. She also seeks to have encompassed within the mediation the proceedings which have been brought by the respondent in the Possession List and which are subject to a cross-claim by Ms Young in which she claims tens of millions of dollars.
In those circumstances, I accept the respondent's submission that the prospect of a successful mediation is minimal, if there is any prospect at all. I am also of the view, having regard to Ms Young's submissions, and by reference to the judgments in this Court to which I have been taken, that it is unlikely that a mediation would have the effect of narrowing the issues between the parties, which sometimes of itself can be a useful purpose of mediation. Accordingly, I also refuse those aspects of the amended urgent notice of motion seeking orders for mediation and the manner in which the mediation should proceed.
That leaves the question of a review of the decision of Simpson JA of 1 March 2018, in which her Honour refused a stay of the proceedings before Latham J. As I understand it, Ms Young has indicated she seeks to have that order reviewed, but has not yet filed a notice of motion to this effect. There is no reason why Ms Young cannot file a notice of motion seeking a review of the order and, if she wishes to do so, then that process is available to her.
Finally, I turn to consider the consequential matter of what should happen with the summons seeking leave to appeal, which has been set down for hearing on 3 May 2018 and whether, on the assumption that Ms Young does file a notice of motion seeking review of Simpson JA's decision of 1 March 2018, that should be heard at the same time. At this time, I see no reason why that summons seeking leave to appeal should not proceed on 3 May 2018. Litigants, whether they be represented or unrepresented, must be aware that when matters are set down for hearing, the Court expects them to proceed and that by setting a particular matter down for hearing, other matters in the list are not allocated a hearing date which might have otherwise been given to them. This raises questions of the proper use of the Court's time, as well as of the practical administration of justice.
I am of the view that it would be preferable, if Ms Young does intend to file a notice of motion to review the decision of Simpson JA of 1 March 2018, that that should be heard at the same time and so, accordingly, I would refuse any application to vacate the date for the hearing of the summons seeking leave to appeal.
The formal order that I make is that the amended urgent notice of motion is dismissed.
[DISCUSSION RE COSTS]
Since hearing and determining the notice of motion, I have been informed by the Registrar that Ms Young had sought an order seeking the review of the decision of Simpson JA in one of her earlier notices of motion. That was not brought to my attention at the time of giving my ex tempore judgment. However, I have also been informed by the Registrar that Ms Young does not now propose to proceed with her application to review the decision of Simpson JA.
[4]
Orders
I make the following orders:
(1) The amended urgent notice of motion is dismissed.
(2) The applicant is to pay the respondent's costs of the amended urgent notice of motion.
[5]
Amendments
03 May 2018 - Case title amended to (No 2)
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Decision last updated: 03 May 2018