Cha v Oh (No. 13)

[2009] NSWDC 130

CITATION:	Cha v Oh (No. 21) [2009] NSWDC 130 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	11 June 2009
JUDGMENT DATE:	11 June 2009
EX TEMPORE JUDGMENT DATE:	11 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Application to seek leave to file notice of ceasing to act refused. (2) Liberty to apply. (3) Costs reserved.
CATCHWORDS:	Legal practitioners – hearing fixed for 4 weeks adjourned due to enlargement of defendants’ particulars – further adjournment due to defendants’ application to Court of Appeal – plaintiff changes legal representation - plaintiff unable to pay his new lawyers after hearing completed and timetable for submissions complied with by defendants - whether leave to file Notice of Ceasing to Act at such a late stage of the litigation should be granted – prejudice and delay in litigation considered - application refused
LEGISLATION CITED:	Defamation Act 1974 (NSW), s 7A Uniform Civil Procedure Rules 2005 (NSW), r 7.29
CASES CITED:	A & N Holdings NSW Pty Ltd v Andell Pty Ltd [2006] NSWSC 55 Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13 Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 Lee v Cha [2006] HCATrans 132 Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510 Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation (Supreme Court of New South Wales, McCallum J, 28 April 2008, unreported) Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 Wentworth v Rogers [1999] NSWCA 403 Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279
TEXTS CITED:	Ritchie's Uniform Civil Procedure NSW
PARTIES:	Plaintiff: Bob Chae-Sang Cha First defendant: Jik Il Oh Second defendant: Jae Kyung Lee Third defendant: Yoon Shin Lee Fourth defendant: Hak Joo Park Fifth defendant: Han Yong Lee Sixth defendant: Duk In Kim Seventh defendant: Hak Soo Cho
FILE NUMBER(S):	5376 of 2002
COUNSEL:	Plaintiff: Ms L Evans
SOLICITORS:	Plaintiff: Mr R Lee (Schweizer Kobras Lawyers & Notaries) Second and fourth defendants: Ms J Rozea (Gray & Perkins Lawyers)

Judgment

1. This is a lengthy and complex defamation trial. The evidence is now complete. Comprehensive submissions are required from the plaintiff in order to answer the many hundreds of pages of written submissions provided by the defendants.

2. The procedural history is as follows. The plaintiff sued for defamation concerning fourteen Korean newspaper publications in May 2002. A s 7A jury in 2004 took nearly four weeks to determine the imputations. There were unsuccessful appeals to the Court of Appeal (Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279) and High Court (Lee v Cha [2006] HCATrans 132) by the third defendant, who subsequently settled. The first defendant died after judgment was entered against him, and a seventh defendant was successful in the s 7A jury trial. Only two of the defendants now contest these proceedings, the plaintiff having obtained judgment against the fifth and sixth defendants.

3. When the matter was finally ready for a hearing date in 2007 the parties gave a hearing estimate of four weeks. There were then amendments to the defences, including substantial enlargement of particulars of justification (from 8 to 140 pages) before, during and after the 68-day hearing, which has been running since May 2007. There was a further delay caused by an unsuccessful application by one of the two remaining defendants to the Court of Appeal during the hearing: Jae Kyung Lee v Bob Chae-Sang Cha & Ors [2008] NSWCA 13.

4. Now that the evidence is finished and this long trial is at the submissions stage, the plaintiff tells the court he can no longer pay his lawyers. He has spent $175,000 this year alone on legal fees. He has endeavoured to borrow money without success. His new solicitors seek leave to file a Notice of Ceasing to Act. I understand that Mr Evatt, who has been counsel in the matter throughout the trial, will not appear without those solicitors.

5. Mr Ricky Lee (of Schweizer Kobras, who makes this application), came into the matter only for the last few weeks of the hearing this year. I have very great sympathy for the position of this hardworking and highly respected member of the profession.

6. The plaintiff has had the same barristers during the trial, namely, Mr Evatt and Mr Dibb. In May 2008 Ms Evans appeared for some weeks for the plaintiff, replacing Mr Dibb. Unfortunately not much progress was made during this time because Ms Evans, having come into the matter at very short notice, had to make a number of requests for adjournments. Mr Evatt came back into the matter and the hearing was able to be completed in two further periods of hearing in May 2008 and March to April 2009.

7. The current stage of the trial is important to this application. The evidence is over and I have made peremptory orders for the provision of written submissions by all parties. I made peremptory orders because of my concern about existing delays in the matter. This was not because the trial went beyond the original four weeks, or the 8-week cross-examination of the plaintiff, but because even what should be a straightforward request by a trial judge, namely for a chronology, was not something that could be supplied by the plaintiff until the beginning of this year. I express no criticism of the lawyers; it is an indication of just how difficult this case has become.

8. The defendants have complied with the orders I made for written submissions. Very comprehensive submissions of many hundreds of pages have been served. As judges do not have time out of court to prepare judgments, I took two weeks of my leave for the purpose of reading them, with the intention of writing a judgment that could be handed down no later than September of this year. The plaintiff must comply with the peremptory orders for submissions by 23 July 2009 and the matter is listed for directions on 24 July so that I can reserve in order to hard down judgment, although the defendants have indicated they will seek a right of reply and further oral submissions, as occurred in the Marsden defamation trial.

9. The plaintiff’s solicitor yesterday sought to re-list the matter to seek leave to file a Notice of Ceasing to Act. I understand Mr Evatt also seeks leave to withdraw. Ms Evans is apparently willing to accept a direct access brief. Given her limited involvement in the trial and her statement to me this morning that she did not appreciate that she would be asked to do the submissions until today (and has not commenced any work), and she has obviously been busy in other matters since the trial ended, I am concerned about her ability to perform the enormous task of answering these hundreds of pages from the two defendants left in the case. I have already promised the solicitor who is appearing this morning for the remaining two defendants that the very strict timetable I imposed will be kept.

10. That is not to say that a plaintiff in a long running defamation case is always going to be in such a position of difficulty if funds run out. The same thing happened to Mr Marsden in the Marsden litigation. However, Mr Cha is not in the same position as Mr Marsden, who was a former president of the Law Society and a very experienced trial lawyer. There were periods when Mr Marsden did act for himself, as I understand it, during that lengthy defamation trial which, as I recall, included 212 interlocutory judgments, 12 of which went to the Court of Appeal and a further 3 to the High Court (Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510). The written submissions in that case were supplemented by oral submissions lasting 17 days.

11. However, Mr Cha is a Korean motor mechanic with limited English, who can do very little to represent himself. Although I have put a number of questions to him this morning, in my view he does not appreciate the difficulty of the task that he has confidently said he is going to leave to Ms Evans. In fact he appears to have been under the misapprehension that Mr Evatt was going to remain in the matter as well.

12. The relevant rule concerning solicitors is Uniform Civil Procedure Rules 2005 (NSW), r 7.29, which provides that:

“(1) A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties.

(2) Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has filed and served on the client a notice of intention to file and serve the notice of change:

(a) in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or
(b) in any other case, at least 7 days before doing so.


(3) Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected.

(4) A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.”

13. There having been insufficient time for this to occur, and by reason of the stage of the litigation, application is made for leave for the solicitor on the record to withdraw and I apprehend that Mr Evatt, although not formally seeking to withdraw from the case, is indicating he intends to withdraw as well.

14. There is no doubt that failure to provide funds to cover the disbursements may be good cause for termination of a retainer, as the cases noted in the Ritchie's Uniform Civil Procedure NSW at [5,696] made clear. However, the cases set out in Ritchie relate to solicitors who withdraw prior to the trial, not when the evidence is over.

15. In the very brief time I have had since having notification of this application, I have found several cases where the Supreme Court and the Court of Appeal have expressed concern in similar circumstances. In Super 1000 Pty Ltd v Pacific General Securities Ltd [2007] NSWSC 171 the solicitors for a party sought leave to withdraw on the day that the trial was to start. Gzell J reluctantly let the trial go ahead despite concern about the late timing, but in circumstances where there was another defendant who did have some representation. His Honour’s concerns must apply with even more force to a trial that has been completed and where the timetable for that party’s written submissions is half over.

16. I am indebted to McCallum J for providing me this morning with a copy of her decision in Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation (Supreme Court of New South Wales, McCallum J, 28 April 2008, unreported). What happened in that case was as follows. An application was made for an adjournment by the plaintiffs of a defamation hearing before McCallum J. Her Honour refused the application and the solicitor who appeared for the plaintiffs then made an application under r 7.29 Uniform Civil Procedure Rules for an order either dispensing with the obligation to serve notice on the client of his intention to file a Notice of Ceasing to Act or for an abridgment of time for serving that notice. The reason for that application being made was apparently to avoid costs incurred in the hearing of those issues. Mr Dawson, who appeared for the defendant, raised some matters of prejudice that I thought I should consider, bearing in mind that the solicitor who appears for the defendants today is unfamiliar with this matter, and I have been very anxious to protect the position of the defendants in circumstances where she is appearing at short notice. Mr Dawson in Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation took the position that if the application to withdraw were granted it would amount to a de facto adjournment because plainly as a matter of fairness it would be necessary to give the plaintiffs an opportunity to obtain new representation.

17. What really troubles me is that that may occur here. How can I be sure that a solicitor will not appear some time during the next month to say he has been retained and needs some more time, especially in circumstances where it would appear that a solicitor recently consulted went to see Mr Evatt with Mr Cha? How can I protect the defendants’ position in this situation, their having been brought here at very short notice with a solicitor unfamiliar with the case (as she very frankly and properly has told the court)? It seems to me that I should have regard to the weight that was put by McCallum J on Mr Dawson’s submissions in Nuclear Utility Technology and Environmental Corporation Incorporated v Australian Broadcasting Corporation, and that I should consider protecting the position of the defendants by giving similar weight to the prejudice that is likely to be occasioned to them.

18. The only case that I could find where a solicitor went off the record after evidence was completed was Wentworth v Rogers [1999] NSWCA 403. The Court of Appeal was critical of this solicitor (at [43]), noting that legal practitioners have duties to the court as well as to their clients.

19. In the present case I want to make it absolutely clear that I am more than satisfied that Mr Lee and Ms Evans have been fully cognisant of their duties to the court. The trouble is that by making this application, despite outlining the proposed arrangements that are to be put in place, it seems to me that the prejudice both to the court and to the defendants is simply too high.

20. Law is a profession; it is not just another business. Lawyers who accept instructions from their client owe duties not only to their client but to the court: A & N Holdings NSW Pty Ltd v Andell Pty Ltd [2006] NSWSC 55, and just as importantly, to their opponents. I am entitled to take into account, on an application such as this, the considerations of the due administration of the court, as Gzell J noted in Super 1000 Pty Ltd v Pacific General Securities Ltd at [11]. If hastily prepared and inadequate submissions are served, that puts me as the trial judge in an impossible position. Just as important as the inconvenience caused to me, if not more, is the prejudice caused to the defendants, and, again I note Gzell’s J’s concerns in Super 1000 Pty Ltd v Pacific General Securities Ltd, to the prejudice caused to other parties when applications of this sort are brought.

21. In addition there are important issues of public policy relating to the obligations that lawyers have. There has been great public concern over the past year about the high cost of lawyers and the disastrous impact this can have upon the provision of justice in our justice system. I can only repeat once again that my concerns do not relate to any personal conduct by Mr Lee. I appreciate the difficulties Mr Lee’s firm has. They came into the matter very late. He has performed with the utmost diligence and he has very ably represented the plaintiff on all occasions.

22. It is not my intention, nor have I been asked, to extend the time for completion of written submission of the plaintiff. I appreciate there may be grounds for the exercise of some compassion and it may be that such an application is brought later, but there is no way that I am even going to consider any such request now, as I have already promised the solicitor appearing for the defendants that this will not occur today.

23. Having regard to the exceptional circumstances in which this application is made during the submissions stage, where there is a peremptory order for submissions and where half of the time for providing those submissions by the plaintiff has already expired, in a very long and complex defamation trial, I decline to grant leave to the solicitors for the plaintiff to withdraw. No other lawyers can come in to take this matter over, and if they did the prejudice to the defendants would be enormous. What would they do? Would they seek leave to re-open the case to adduce further evidence? The difficulties are unimaginable. Any further delay must be strictly monitored to ensure that there is no injustice to the defendants who have complied with the timetable.

24. What the lawyers must do if they remain on the record, consistent with their ethical obligations and their duties to their opponents and to the court, is a matter for them to determine, perhaps after consultation with the Law Society of New South Wales, the Office of the Legal Services Commissioner or the New South Wales Bar Association.

25. This brings me to the question of counsel. While courts may have an inherent jurisdiction to supervise the conduct of counsel (for example, the ability to intervene to have counsel removed: Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 at [45]), I do not have the same degree of control over Mr Evatt as I do over the solicitors on the record. I can only appeal to his better nature not to leave a junior member of the Bar, especially one to whom he is related, in circumstances which may expose her to any kind of unnecessary stress, complaint or other kinds of action. Ms Evans deserves better, in my view.

26. I cannot force the plaintiff’s legal representatives to prepare helpful submissions. I can tell the plaintiff’s legal representations that if they do not do proper submissions, I am not going to descend into the arena to work out what they should have done. That would be unfair to the defendants. I further warn them that if the plaintiff’s submissions are indeed hopeless or inadequate, it will be open to the defendants to ask me to dismiss the proceedings entirely, rather than to embark upon the lengthy exercise of trying to guess what the plaintiff’s submissions ought to have been, or to ignore them entirely in the manner it was urged upon Bergin J in similar proceedings in A & N Holdings NSW Pty Ltd v Andell Pty Ltd and I gratefully adopt the careful analysis of how matters should be run in specialist lists and how courts should approach such failures as are set out by her Honour in this helpful decision.

27. This is a very difficult position for any trial judge. I have endeavoured to reconcile the competing needs for a party to be properly represented, particularly where that party is a person with limited English and abilities, with the needs that those lawyers have to be paid, the needs of the defendants to have finality in this very long litigation, the need for myself as trial judge to have proper submissions from both sides, and the need for justice to be seen to be done in the public arena.

28. This application has caused me a great deal of anxiety, but it seems to me that, while I have the utmost compassion for Mr Lee’s position, I cannot grant his request to file a Notice of Ceasing to Act.

Orders

29. Accordingly, I make orders as follows:

(1) Application to seek leave to file notice of ceasing to act refused.
(2) Liberty to apply.
(3) Costs reserved.

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10/12/2009 - Typographical Error - Paragraph(s) Headnotes