Andy Vuong Duc Pham v Enterprice ICT Pty Limited; Ramzy Sebie v Andy Vuong Duc Pham

[2021] NSWSC 1132

Supreme Court

New South Wales

Medium Neutral Citation:	Andy Vuong Duc Pham v Enterprice ICT Pty Limited; Ramzy Sebie v Andy Vuong Duc Pham [2021] NSWSC 1132
Hearing dates:	2 September 2021
Date of orders:	2 September 2021
Decision date:	02 September 2021
Jurisdiction:	Equity - Expedition List
Before:	Sackar J
Decision:	See paras [17]-[19]
Catchwords:	CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Application to act as tutor not in compliance with requirements — Applicant not engaging with Court or Pro Bono Counsel
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) r 7.39(c)
Category:	Procedural rulings
Parties:	Andy Vuong Duc Pham (first plaintiff) Thi Hunog Giang Pham (second plaintiff) Enterprise ICT Pty Ltd (first defendant) Ms Musabwasoni (second defendant) Robert Sebie (third defendant)
Representation:	B Zipser (plaintiffs) M Mathas (cross claimant) A Duc (2nd def) No appearance for 3rd def
File Number(s):	2015/325044 2018/137809

Judgment – Ex tempore

1. This morning, the proceedings involving ENA Developments and others (2015/325044), along with the 2018 proceedings which concern Ms Rose Sebie as plaintiff (2018/137809), were listed for directions. I am satisfied that everyone has been given notice of the listing this morning. There was some early confusion with timing; it might have been 9.15 in some lists and 9.30 otherwise. I have waited on the line beyond 9.30 in anticipation that either Mr Sebie or Ms Ansah would wish to be heard this morning. Neither at the moment has come on the line so I propose to proceed with the matter.

2. I note that this is not the first time this has happened. On 4 August this year Ms Ansah appeared, and has done previously, seeking to appear, as it were, as a McKenzie friend for Mrs Rose Sebie in the 2018 proceedings.

3. On 4 August I granted her leave to appear as a McKenzie friend. I informed her, I thought clearly and unequivocally, that her application to be appointed a tutor did not comply with the Court rules. She has filed an application to be appointed a tutor for Mrs Sebie. She has purported in her own affidavit to indicate that there is no conflict of interest, but that does not comply with the rules of Court.

4. I explained to her, at pages 3 and following of the transcript of 4 August, that the application did not comply with the rules. I asked her whether she would like me to arrange pro bono assistance for her in order to have explained to her what would be involved were she to be appointed as a tutor. She accepted that invitation.

5. The matter came back before me on 19 August. Again, Ms Ansah did not appear on that occasion, even though she was given notice of the listing.

6. On that occasion I made it clear that I had made attempts to progress her application and make contact with her and, again, I recorded that her application to be appointed to tutor was irregular. The matter was then stood over.

7. In the meantime, having made orders that the Bar Association provide pro bono assistance to Ms Ansah, I received an email yesterday afternoon from a Ms Green at the New South Wales Bar Association. I will return to that in a moment.

8. At 9.06pm on Monday the 30th, I received a communication purportedly from Ms Ansah. It made a series of criticisms of various persons, by implication the Court as well, and it made it clear that Ms Ansah was in fact seeking some sort of assistance for Ms Rose Sebie.

9. Ms Ansah seems to be entirely confused about what it is she is doing or what it is she is trying to do. If in fact it is her who is making the application to be appointed a tutor, I fail to understand how she could have misunderstood what I said to her on 4 August.

10. There was no question that arose on 4 August, or at any time prior to that, that pro bono legal assistance would be provided to Mrs Rose Sebie. Mrs Rose Sebie, it seems to be accepted, is under a legal disability and is unable to give instructions. She is very unwell. Ms Ansah has applied, but irregularly, to be appointed as her tutor.

11. I have taken steps such that I would have thought it fairly clear that Ms Ansah requires to be told by an independent lawyer what her obligations would be as a tutor, that she needs to have a lawyer by way of certificate as is required that there is no conflict of interest, and I want her to be under no misapprehension about the possible liability for costs.

12. I have mentioned previously that it may be that she has some arrangement with Mrs Sebie - I do not know - as to an indemnity out of any monies that Mrs Sebie may acquire as a result of the litigation. In a sense that is nothing to do with me, as long as she understands fully that, if she were to be appointed to tutor that she may bear a liability for costs. And the question is then who conducts the litigation. She would need my leave to do so personally, without a lawyer.

13. So far as the Bar Association is concerned, the email from Ms Green sets out a very long list of attempts on the part of persons, starting on or about 19 August, culminating with an attempt on 31 August to make contact between Ms Green and Ms Ansah. Ms Ansah. On the face of this email, and by reason of her failure to attend this morning I have no option but to accept the email from the Bar Association that she has, so it seems, refused to engage with Mr Docker of counsel who had agreed to accept a pro bono retainer in relation to her possible appointment as tutor.

14. Mr Zipser of course has indicated this morning that his clients (the Phams) wish to make an application effectively to strike out Mrs Rose Sebie's proceedings for lack of prosecution or, as he described it, despatch, or seek some other remedy which prevents the matter from proceeding.

15. I have indicated previously, when I fixed the 2015 proceedings, that I would, if matters could be satisfactorily arranged, hear Mrs Rose Sebie's matter at the same time. Time is now running out. Ms Ansah does not appear to wish to engage. Mr Sebie, for best reasons known to himself, has not been on the telephone this morning.

16. Mr Zipser's clients will make such application as they may be advised to make.

17. I will fix the 2015 matter for directions sometime on 10 September to be confirmed. I will also fix any application Mr Zipser's client makes in relation to the 2018 proceedings on the same day. I would direct that Mr Zipser inform the relevant persons of any application that is being made and that the matter will proceed on 10 September.

18. The last thing I should do, as it is in the circumstances appropriate, is to discharge Mr Docker of counsel from any obligations he may otherwise have, having been appointed by the New South Wales Bar Association to assist Ms Ansah, and I will discharge his further obligations pursuant to UCPR 7.39(c). I will notify Ms Green that I have done so.

19. I will reserve at the moment all questions of costs in relation to the 2018 proceedings and I will stand both matters over to a time to be fixed on 10 September.

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Decision last updated: 14 October 2021