Camilleri v Gardiman

[2024] NSWSC 884

Supreme Court

New South Wales

Medium Neutral Citation:

Camilleri v Gardiman [2024] NSWSC 884

Hearing dates:

18 July 2024

Decision date:

22 July 2024

Jurisdiction:

Common Law

Before:

Faulkner J

Decision:

See [56]

Catchwords:

PRACTICE AND PROCEDURE — adjournment — no matter of principle

SOLICITORS — order to deliver file — order to provide itemised bill of costs

Legislation Cited:

Civil Procedure Act2005 (NSW) s 56(1)

Legal Profession Act 2004 (NSW) s 728

Legal Profession Uniform Law 2014 (NSW) s 472(1)(a)

Cases Cited:

Harrison v Schipp [2001] NSWCA 13

Category:

Principal judgment

Parties:

John Camilleri (Plaintiff)
John Armando Gardiman (First Defendant)
Terence Louis Goldberg (Second Defendant)
Thady Arnold Andrew Blundell (Third Defendant)
Kiry Chow (Fourth Defendant)
Anne Margaret Hoffman (Fifth Defendant)
Gerard Anthony McMahon (Sixth Defendant)
Arold Martin Dignan (Seventh Defendant)
Richard Dababneh (Eighth Defendant)
Fady Medhat Dous (Ninth Defendant)
Nathan Edwards Bonello (Tenth Defendant)

Representation:

Counsel:
K Young (Plaintiff)
J Brown (First Defendant; Third - Tenth Defendant)
No appearance (Second Defendant)

Solicitors:
Damien Michael, M&A Lawyers (Plaintiff)
Armando Gardiman, Turner Freeman Lawyers (Defendants)

File Number(s):

2024/260188

JUDGMENT EX TEMPORE

1. HIS HONOUR: Before me sitting in the Duty List is an application made by the Plaintiff by virtue of a Summons filed on 15 July 2024. The Defendants to the Summons are ten named individuals who are the members of a partnership of solicitors called Turner Freeman.

2. The background to the case is that the Defendants previously acted for the Plaintiff as his solicitor in a number of pieces of litigation, the details of which are not necessary to set out other than to say that they relate to a deceased estate for one of the parents of the Plaintiff. The litigation has been long running and has involved a number of proceedings in the Supreme Court.

3. The particular matter which arises from the litigation and is relevant to the current application is that costs orders were recently made by Meek J pursuant to which it is necessary for the Plaintiff to identify the capacity in which he was the client of Turner Freeman for particular items of work performed by the Defendants over a number of years. It is necessary for the Plaintiff to identify this because under the orders of Meek J some of the costs are recoverable from the estate and others are not, depending upon the capacity in which the Plaintiff was acting. The Defendants no longer act for the Plaintiff. In order for the Plaintiff to identify which costs are recoverable from the estate and which costs are not, he requires from the Defendants two things: firstly, an itemised bill of costs for all the work undertaken by the Defendants; and, secondly, his files.

4. The proceedings came before me in the Duty List on Monday 15 July 2024 on which occasion the matter was stood over to today for hearing.

5. Mr Brown who appears today for the First and Third to Tenth Defendants says that he did not realise the matter was on for hearing and has made an application that the proceedings be adjourned. In support of that application he has read an affidavit of Ms Anisa Ali affirmed on 18 July 2024.

6. The deponent is a solicitor who is employed by the Defendant firm and generally works under the supervision of the Second Defendant.

7. The affidavit says that the Second Defendant is on leave until the 22 July 2024. Mr Brown has said from the Bar table that that leave commenced on Wednesday last week.

8. There is no evidence about where the Second Defendant is. There is no evidence that the Second Defendant is not contactable or not readily available in relation to the conduct of this case. All the evidence says is that the Second Defendant is "on leave".

9. The affidavit also says that the Second Defendant is the person who is dealing with this "dispute", and that the Second Defendant is not yet aware of the proceedings.

10. There is no evidence about why the Second Defendant is not yet aware of these proceedings. Nor is there any explanation as to why the Second Defendant is the person dealing with this dispute in circumstances where he is on leave and is not aware of these proceedings.

11. A number of submissions have been made in support of the adjournment application as to why the First and Third to Tenth Defendants require more time to consider the matter.

12. The submission was made that they may need to put on evidence. However, Mr Brown was not able to identify any evidence which might reasonably be thought to be necessary having regard to the orders sought in the Summons.

13. In relation to Order 1, which requires the production of itemised bills of costs by a mid-size Sydney law firm, the only matter identified by Mr Brown about which evidence might need to be put on is to demonstrate that it was "impossible" to comply with the order, if that in fact is the case. Mr Brown does not suggest that it will be impossible, but he wishes time to obtain instructions to make sure.

14. Mr Brown was not able to identify any reason why it may not be possible. He accepted that the firm for some of its matters for some of the time had a modern computerised system of recording costs, which submission ought to be accepted in 2024. But Mr Brown said he would need to get instructions, apparently only available from the Second Defendant, about whether a computerised system of time recording was applicable for all the firm's cases for the Plaintiff for all the time when the firm was acting for the Plaintiff.

15. In relation to the relief sought in Order 2 of the Summons, the burden of which is that the firm give over to the Plaintiff his own documents (ie, his files), Mr Brown identified four possible matters in relation to which evidence may be required. First, evidence that there were no documents to produce. There is no possible reason why such evidence would be required because the relief sought in Order 2 of the Summons expressly excludes documents that have already been produced, and if there are no documents to produce that is all the more reason why there should not be a delay in dealing with the application.

16. Secondly, Mr Brown said there may be evidence that counsel may have a lien over their briefs. In circumstances where all the fees billed by the Defendants to the Plaintiff have already been paid, it seems to me that the prospect of unpaid counsel is extremely unlikely, and one which Turner Freeman would be very unlikely to wish to rely upon as a reason why the relief referred to in Order 2 should not be granted.

17. The third matter Mr Brown thought might require evidence was expressed in generalised terms, namely such evidence that they may be advised to put on, having given instructions. That does not take the argument any further.

18. The fourth matter identified by Mr Brown was that there may be evidence that the scope of the order may be too wide. In my view the scope of Order 2 is by definition limited to the papers which the Defendants have which belong to the Plaintiff.

19. Mr Brown emphasised that the parties to litigation are entitled to an opportunity to prepare for a hearing and one need not go to the authorities to which Mr Brown referred to know that that is axiomatic. The point is though that the principle turns upon the “opportunity” that the parties have, and whether or not they avail themselves of the opportunity is a matter for them.

20. A party cannot complain about the circumstances of a hearing when having had an opportunity it has not taken advantage of that opportunity.

21. The matter was in the Duty List on Monday. There is no evidence in the affidavit relied upon by the Defendants in support of the adjournment application of any work being done in relation to preparing for this hearing today.

22. The affidavit makes clear that the Defendants regard the person who is "dealing with" the dispute to be the Second Defendant but the affidavit also makes clear that there has been no contact with the Second Defendant between Monday and today.

23. This is not a theoretical or artificial consideration that the Court is concerned with. The Court is concerned with the practical conduct of these proceedings. The relief sought in the Summons is clear. The Plaintiff wishes the Defendants to prepare itemised bills and to deliver up the Plaintiff's own documents. There is no dispute that the work was performed and has been paid for. No lien is asserted.

24. This is not a case where there is likely to be any genuine factual controversy and the Defendants have had every opportunity they need to bring forward material if there is any, or to adduce evidence, to explain why the matter can't proceed today. Having regard to the nature of the Plaintiff’s claim, the evidence in Ms Ali’s affidavit does not suffice.

25. The affidavit material and the submissions about preparation rose no higher than speculation.

26. Section 56(1) of the Civil Procedure Act 2005 (NSW) provides that the overriding purpose of this Act and the rules of court in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

27. In order to have regard to that overriding purpose, it is necessary to consider what are the real issues in the proceedings. From what I have said it is clear that the real issues in these proceedings are whether the Defendants ought deliver up the Plaintiff's own property in the form of the files and whether the Defendant solicitors ought provide itemised bills of costs for the work that they have done and for which they have been paid.

28. Section 56(2) provides that the Court must seek to give effect to the overriding purpose when exercising any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

29. That is an obligation imposed upon the Court. A part of that consideration includes the Court's own resources having regard to the requirement to manage these proceedings including by reference to the objective of the timely disposal of all other proceedings in the Court: s 57(1)(d).

30. In circumstances where the matter can otherwise be dealt with today, the submission that it ought to go over to another date is something which the Court needs to take into account having regard to its own resources for the timely disposal of all other proceedings in the Court.

31. Mr Brown submits that there will be limited prejudice to the Plaintiff if an adjournment is granted and there is some force in that submission.

32. The urgency of the matter is dealt with in the affidavit of Richard John Trethewey, specifically at paragraph 12. The ability of the Plaintiff to identify which costs are recoverable from the estate and which costs are not has given rise to a dispute between the Plaintiff and other beneficiaries of the estate.

33. The solicitors acting for the other beneficiaries have been in discussions with the Plaintiff's current lawyers about the process of identifying those costs for some time. The Plaintiff's inability adequately to identify the relevant costs for want of an itemised bill and the files from the Defendants have become increasingly urgent through the course of this year.

34. On 31 May 2024 the solicitors acting for other beneficiaries sent an email to the Plaintiff's current solicitors to which they attached a draft Summons, which contemplated the commencement of proceedings in the Equity Division in order to bring about the identification of the relevant costs.

35. Further work has been done by the Plaintiff and his current solicitors to try and forestall those proceedings and with some success. However, the evidence shows that there have been numerous requests by the Plaintiff of the Defendants seeking itemised bills and the files over the last year.

36. On 16 June 2023 the Plaintiff's solicitors wrote to the Defendants seeking the papers which are the subject of Order 2 in the Summons before the Court today. Documents have been produced in response to that request over time, but the Plaintiff is concerned that not all documents have been provided, especially emails. There is evidence which suggests the concern is well placed.

37. On 26 July 2023 the solicitors for the Plaintiff wrote to the Defendants expressing these concerns. They did so again on the 27 July 2023, 28 July 2023 and 8 August 2023. As at today the Plaintiff is still concerned that there are further documents which need to be provided which he has not yet received.

38. In relation to the itemised bills of costs, the Plaintiff requested those on the 19 March 2024, the 4 April 2024, the 10 April 2024 and the 1 May 2024. On the 25 June 2024 solicitors acting for the Plaintiff wrote to the Defendants and asked again for the entire files, and also for trust account statements, and itemised bills of costs.

39. On 11 July 2014 solicitors acting for the Plaintiff wrote to the Defendants and made very similar requests.

40. On 12 July 2024 the solicitors acting for the Plaintiff sent a signed Summons and supporting affidavit to five of the partners at Turner Freeman, and as I have said on the 15 July 2024 these proceedings were commenced.

41. On 16 July 2024 Turner Freeman provided trust statements which were one of the matters which the Plaintiff had been seeking for some time.

42. I accept Mr Brown's submission that the urgency is limited but the dispute cannot be permitted to continue. In those circumstances I reject the application for the adjournment.

43. One of the matters to which I have had regard in reaching that decision is that it will be possible to fashion the orders so as to accommodate any need for time which the Defendants may need to comply with the orders and which can be demonstrated by proper affidavit evidence.

44. If that precaution is taken then the prejudice to the Defendants in relation to the matter proceeding today can be accommodated because it remains open to the Defendants to prove that compliance with the orders will take more time than currently contemplated.

45. In relation to the substantive application, the submissions made by the parties in relation to the adjournment largely covered the substance of the claim. In those circumstances the Plaintiff is entitled to the relief he seeks in Orders 1 and 2 of the Summons, subject to an extension of the time for compliance and the removal of the obligation to provide trust account statements which were provided on Tuesday.

46. In order further to protect the Defendants, I will grant liberty to all the Defendants to apply on two days’ notice to me to make any application for a variation of Order 1 or Order 2 in respect of the time permitted for compliance, any such application to be accompanied by supporting affidavits delivered to my chambers at the time the liberty is exercised.

47. Further, I will direct the Plaintiff by 4pm on 19 July 2024 to provide an electronic copy of the hard copy files referred to in paragraph 38 of the affidavit of Mr Trethewey.

48. The Plaintiff seeks an order for costs of the proceedings. The Plaintiff ought to have an order that its costs be paid on the ordinary basis so that costs will follow the event

49. The Plaintiff submits that the costs ought to be ordered on an indemnity basis. The basis for that submission is the conduct of the Defendants in relation to the attempts by the Plaintiff to obtain the itemised bills of costs and files before the litigation was commenced.

50. In addition to the material in Exhibit RT-1 being the exhibit to the affidavit of Mr Trethewey the Plaintiff tenders an email on 12 July 2024 from Mr Trethewey to Turner Freeman to which was attached the Summons and Mr Trethewey's affidavit. In that email Turner Freeman were informed that the Plaintiff would approach the Court on 15 July 2024 if the itemised bill of costs and files were not provided. I have marked the email as Exhibit A.

51. Counsel for the Plaintiff referred to the evidence about the Plaintiff’s attempt to obtain an itemised bill of costs and the files over the last year.

52. Even if the Defendants’ conduct has been as the Plaintiff views it, and I do not say that it has been, the Plaintiff is not entitled to costs on an indemnity basis. For the purposes of the costs of these proceedings, the conduct of the Defendants prior to the commencement of the proceedings is not capable of being “relevant delinquency” so as to warrant an order for costs on an indemnity basis: Harrison v Schipp [2001] NSWCA 13 at [134]-[136] (Giles JA, with whom Handley and Fitzgerald JJA agreed).

53. In order for there to be relevant delinquency the conduct of a party has to relate to the way the proceedings have been conducted.

54. The Plaintiff does not make any complaint about the conduct of the proceedings by the Defendants since they were commenced on 15 July 2024 and in my view there is nothing to be said about the conduct of the proceedings by the Defendants which warrants an order for costs other than the ordinary basis. In those circumstances, I reject the Plaintiff's application for costs on the indemnity basis.

Orders

55. I make the following orders:

1. Pursuant to s 472(1)(a) of the Legal Profession Uniform Law 2014 (NSW) (LPUL) alternatively, pursuant to s 728 of the Legal Profession Act 2004 (NSW) (LPA) or the Court’s inherent jurisdiction, that within 14 days of this order, the Defendants provide to the Plaintiff a bill of costs in itemised form in respect of the legal services provided by the Defendants as described in the following invoices:

1. Invoice 292703 issued by Turner Freeman dated 24 June 2020 for $32,602.41;

2. Invoice 301181 issued by Turner Freeman dated 11 December 2020 for $33,220.00; and

3. Invoice 321379 issued by Turner Freeman dated 22 March 2022 for $72,393.42.

2. Pursuant to s 472(1)(b) of LPUL, alternatively pursuant to s 728 of the LPA or the Court’s inherent jurisdiction, that within 17 days of this order, the Defendants deliver up to the Plaintiff all of the Plaintiff’s client documents and files, held and retained by Turner Freeman in relation to the legal services provided to the Plaintiff, either in his own capacity, or as executor of the Estate of the late Patricia Camilleri including but not limited to the following:

1. All documents, including memoranda email correspondences, and file notes (including all digital copies), recording or referring to communications by any person with any partner or employee of any of Elderlaw Legal Services and/or Foulsham & Geddes, as it was known; and

2. All documents, including memoranda email correspondences, and file notes (including all digital copies), recording or referring to communications by any person with Lindsay Ellison, Denis Barlin, Peter Bruckner of Counsel ,or any other counsel briefed by the Defendants; and

3. but excluding all documents already provided by the Defendants to the Plaintiff on 4 July 2023 (electronic share files - Court Book and appeal against judgment files) and on about 15 August 2023 (bundle of hard copy documents).

3. The Plaintiff provide to the Defendants an electronic copy of the hard copy files referred to in paragraph 38 of the affidavit of Richard John Trethewey affirmed on 19 July 2024.

4. Grant liberty to all the Defendants to apply on two days’ notice to Faulkner J to make any application for a variation of Order 1 or Order 2 in respect of the time permitted for compliance, any such application to be accompanied by supporting affidavits delivered to his Honour’s chambers at the time the liberty is exercised.

5. An order that the Defendants pay the Plaintiff’s costs on an ordinary basis.

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Decision last updated: 22 July 2024