Brondolino v Cappellin & The Registrar of Racehorses
[2007] VSC 434
•9 November 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
No. 8919 of 2007
| ROSE MARY BRONDOLINO | Plaintiff |
| v | |
| JOHN MARIO CAPPELLIN and THE REGISTRAR OF RACEHORSES | First Defendant Second Defendant |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2007 | |
DATE OF RULING: | 9 November 2007 | |
CASE MAY BE CITED AS: | Brondolino v Cappellin & Anor | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 434 | |
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Interlocutory – Application to restrain solicitor from representing party – Mediator – Whether solicitor had acted as mediator
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W. Stark | Ms R Brondolino |
| For the Defendant | Mr D. Clarke | Lawcorp Lawyers |
HIS HONOUR:
On 22 October 2007 an application by the plaintiff for an interlocutory injunction and other relief in respect of a three-year-old thoroughbred filly (“the filly”) came on for hearing before Osborn J in the Practice Court.
The application was adjourned to 26 October with further affidavit material being provided by the parties.
The central part of the dispute between the plaintiff and the first defendant is the efficacy of an alleged agreement which was said to be entered into in December 2004 or January 2005. It related to the transfer of interests in various racehorses, including the filly and her dam known as “Urageme” (“the mare”).
At the hearing before Osborn J, in addition to the interlocutory relief sought, the plaintiff also made an oral application, supported by affidavit material, seeking to restrain the first defendant’s solicitors, Lawcorp Lawyers, from acting on behalf of the first defendant. It was supported by an affidavit of the plaintiff sworn 22 October 2007 (“the plaintiff’s affidavit”). When the matter came on before me, the preliminary issue to be determined was whether I should make the order sought by the plaintiff, namely, to restrain Lawcorp Lawyers from continuing to act for John Cappellin in the proceeding. The basis for the application was that Mr D. Smarrelli (“Smarrelli”), a principal of Lawcorp, had acted as a mediator in the dispute over the filly prior to the issue of this proceeding. No summons was issued, but Mr Stark, who appeared on behalf of the plaintiff, undertook to file a summons seeking the relief he sought. This ruling is concerned with that application only.
The application was based upon the following affidavit material sworn by Rose Mary Brondolino, who is a solicitor and conducts these proceedings on her own behalf. She swore as follows:
“3. I have known Mr Smarrelli for a number of years. We first met through the First Defendant. Mr D. Smarrelli has at all times been aware of the number of disputes between the First Defendant and myself. In early 2005 Mr Smarrelli came to see me at my office, which was then located at Level 1, 84 Johnston Street, Fitzroy, and told me that he was concerned that two old and good friends were no longer on speaking terms and that he wanted to assist both the First Defendant and I and mediate in resolving the disputes between us. The topic under discussion was the mare Urageme and her 2004 foal by Distant Music. He told me that he would approach the First Defendant and mediate in an attempt to bring about a resolution.
4. At no time did Mr D. Smarrelli state that he was acting on behalf of the First Defendant and was not having discussions with me other than as a Mediator. Had Mr D. Smarrelli informed me that he was acting for the First Defendant and was approaching me and holding discussions with me in his capacity as a Solicitor I would not have participated in any discussions and I would not have discussed confidential matters with other than on a “Without Prejudice” basis.
5. The last time that I spoke to Mr D. Smarrelli was on or about 3 July 2007. Mr Smarrelli came to my office at Ground Floor, 104 Johnston Street, Fitzroy, ostensibly to apologise for having missed a dinner appointment on Saturday 24 June 2007 and arranged by a mutual client, Mr S. Rossi. Once again during this discussion Mr D. Smarrelli raised the topic of resolving all disputes between the First Defendant and myself. In particular Mr D. Smarrelli requested that I execute transfer documents with respect to another horse that I had owned with the First Defendant, and I believe with Mr G. Egan. As this issue had been raised in the past, not only by Mr D. Smarrelli but also by Mr M. Laino of Lawcorp, I repeated my previous statements which were that I would sign the transfer papers once the First Defendant provided to me the Foal Identity Card with respect to the Urageme X Distant Music 2004 filly and also provide to me complete details of the disposition of the horse for which the First Defendant required me to sign the transfer documents. Mr Smarrelli informed me that he had spoken to the First Defendant and was advised by the First Defendant that he did not have the Foal Identity Card to the Urageme X Distant Music 2004 filly. Nothing was said about the fact that the First Defendant was refusing to provide me with the Foal Identity Card for the Urageme X Distant Music 2004 filly as the First Defendant deemed the Agreement executed on 17 December 2004 to have been rescinded by myself.”
It was contended by Mr Stark that I should reach the following conclusions based on this material:
(a) That Smarrelli was engaged as a mediator in a dispute between the first defendant and the plaintiff.
(b) As a result of that engagement, Lawcorp, of which Smarrelli was a principal, should be restrained from acting for the first defendant.
The central part of the dispute between the plaintiff and the first defendant is the efficacy of an alleged agreement which was said to be effected in December 2004 or January 2005. It related to the transfer of interests in various racehorses, including the filly and the mare.
Mr Clarke, who appeared for the first defendant, resisted the application. He relied upon affidavits sworn by Smarrelli and by Danijela Luzaic (“Luzaic”), sworn respectively on 19 and 24 October 2007. Smarrelli, in his affidavit of 19 October 2007, swore as follows:
“4. I have had some discussions with the Plaintiff over the years, unrelated to her dispute with the First Defendant, and as a result of those discussions I am certain that the Plaintiff is and has for some time been aware that Lawcorp Lawyers commenced acting on behalf of the Firstnamed Defendant in 2003 in relation to matters unrelated to this dispute. Further, at the time of my discussions with the Plaintiff regarding her dispute with the First Defendant, I am confident that Plaintiff was aware that Lawcorp Lawyers were acting on behalf of the First Defendant in relation to at least two separate matters. It is for this reason and the matters set out above that all Plaintiff’s correspondence and communications in relation to this matter were directed to Lawcorp Lawyers.“
In his subsequent affidavit of 24 October 2007, he swore:
“5. I confirm, however, that in January 2005, I was instructed by the first defendant to act on his behalf in relation to his dispute with the plaintiff the subject matter of this proceeding. I further confirm that I continued to so act until early 2006 at which time I passed the care and conduct of matter to Danijela Luzaic (“Luzaic”) of my office.
6. I believe that at all material times during my involvement in the matter the plaintiff was aware that I was acting on behalf of the first defendant.
7. I further confirm that at all material times until I ceased acting on behalf of the first defendant all communications and information exchanged between the plaintiff and I in relation to the plaintiff’s dispute with the first defendant were so exchanged with me acting in my capacity as the first defendant’s solicitor and the plaintiff acting on her own behalf.
8. To my knowledge at no stage during my retainer was I provided with any confidential information that could potentially be injurious to the plaintiff’s position, nor advantageous to the first defendant’s position, in this matter.
9. I admit that, in the ordinary conduct of the matter, the plaintiff and I had several ‘without prejudice’ communications, as is often the case when I act as a solicitor for a party in dispute with another. I am confident, however, that any ‘without prejudice’ communications have been, are and will continue to be treated as such and have not been disclosed in any Affidavit material filed on behalf of the first defendant to date nor are intended to be disclosed or relied upon by the first defendant in the future conduct of this proceeding.”
Mr Clarke also relied upon correspondence between Smarrelli and the plaintiff annexed to an affidavit of the first defendant sworn 23 October 2007. The first exhibit[1] was a fax of 25 January 2005 from the plaintiff to Lawcorp, attention “Mr D. Smarrelli” and said to be re “John Cappellin”. It contained two proposals in relation to resolution of a dispute which had arisen in relation to the filly as well as the dam of the filly. There is no suggestion in that letter that Smarrelli is acting as a mediator. The second piece of correspondence relied upon was correspondence of 16 August 2005 from the plaintiff to “Don Smarrelli”, enclosing a copy of the agreement.[2] Again there is no mention of Smarrelli acting as a mediator.
[1]Exhibit JC7
[2]Exhibit JC12
Mr Clarke also relied upon parts of Luzaic’s affidavit and in particular a conversation she had in March 2006 with the plaintiff in which, he contended, it was clear that the plaintiff appreciated that Lawcorp was acting for the first defendant.
Mr Clarke contended that, as a preliminary issue, it had not been established by the plaintiff that Smarrelli had been appointed as a mediator. Secondly, he contended that even if Smarrelli had been so appointed, there was no evidence whatsoever that any communication by Mr Smarrelli to the plaintiff constituted or amounted to the disclosure of confidential information received by him. Finally, he contended that even if I was satisfied that Smarrelli either was a mediator and/or had acquired confidential information, that neither matter should prevent Luzaic continuing to act on behalf of the first defendant, particularly in the light of Smarrelli’s statement that there had been no disclosure to any other person of any information that he might have gleaned in without prejudice discussions with the plaintiff.
In my view, the preliminary point raised by the first defendant is sound. I am not satisfied that there is even a prima facie case made out that Smarrelli was engaged as a mediator in the dispute between the plaintiff and the first defendant. I have reached this conclusion for the following reasons.
First, accepting the contents of paragraph 3 of the plaintiff’s affidavit (in paragraph 5 of this ruling), I am not prepared to conclude that this amounted to an engagement by the plaintiff and the first defendant for Smarrelli to act as a mediator. A discussion between the plaintiff and Smarrelli, who had known each other for a number of years, and the use of the words “he would approach the first defendant and mediate in an attempt to bring about a resolution” does not of itself mean that he was to be regarded in a formal sense as a mediator. It means, in my view, given the relationship which existed, that all he was attempting to do was to endeavour to do his best to resolve the issues between the plaintiff and the first defendant.
Second, this interpretation is borne out by subsequent events. He is not once referred to in any piece of communication as a mediator. The parties did not agree that he act as a mediator. No formal mediation agreement was ever entered into. No mediation was held. No fee was paid to him or suggested in relation to conducting a mediation. Apart from this one apparently informal discussion there is no other piece of evidence to suggest that he was acting as a mediator.
Third, the correspondence in January 2005 and August 2005 is, in my view, inconsistent with Smarrelli acting as a mediator. It is far more consistent with Smarrelli acting on behalf of the first defendant, as Smarrelli deposes to in his affidavit.
To put the matter shortly, there is insufficient evidence to persuade me that there was ever an arrangement that Smarrelli would act as a mediator in the dispute which is currently before the Court. Accordingly, I do not need to determine any of the subsequent issues which were argued by counsel, however I should add that there was no evidence that Smarrelli had acquired any information from the plaintiff on a confidential basis which was either being deployed or capable of being deployed in the course of this proceeding.
I dismiss the plaintiff’s application. The first defendant should pay the plaintiff’s costs of the application confined to the hearing on 26 October.
For the purpose of any appeal, the date of my ruling is to be taken as the date of publication of these reasons.
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