Day v Perisher Blue Pty Ltd (No 2)

CITATION:	DAY v PERISHER BLUE PTY LTD [NO 2] [2005] NSWCA 125
HEARING DATE(S):	19 April 2005
JUDGMENT DATE:	20 April 2005
JUDGMENT OF:	Sheller JA; McColl JA; Windeyer J
DECISION:	Direct the Registrar of the Court of Appeal to refer to the Legal Services Commissioner this judgment, the judgment of the Court of 11 April 2005 and the appeal papers in appeal CA 40936/03 to investigate whether, having regard to the conduct of Geoffrey Robert Brookes and Michael Kevin Connelly when acting for the defendant, Perisher Blue Pty Ltd, in the proceedings, he ought to initiate a complaint against either or both pursuant to the Legal Profession Act.

CATCHWORDS:	PROFESSIONAL CONDUCT - whether conduct of solicitors should be referred the Legal Services Commissioner
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12
PARTIES:	Darrel Justin Day - Appellant Perisher Blue Pty Ltd - Respondent
FILE NUMBER(S):	CA 40936/03
COUNSEL:	Dibbs Barker Gosling - T F Bathurst QC/M Tyson
SOLICITORS:	Dibbs Barker Gosling - Ebsworth & Ebsworth

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	7158/01
LOWER COURT JUDICIAL OFFICER:	Patten DCJ

CA 40936/03
DC 7158/01

SHELLER JA
McCOLL JA
WINDEYER J

Wednesday, 20 April 2005

DAY v PERISHER BLUE PTY LTD [NO 2]

Judgment

1 THE COURT: On 11 April 2005 the Court as presently comprised allowed this appeal and made consequential orders including order 6 as follows:

6. The defendant’s solicitors to have 7 days from the date of this judgment to show cause why, after the proceedings are disposed of by a new trial or otherwise, the judgment and the appeal papers should not be referred to the Legal Services Commissioner.

2 The defendant’s solicitors, Dibbs Barker Gosling, represented by Mr Bathurst QC and Mr Tyson, instructed by Ebsworth & Ebsworth, applied to the Court on 19 April 2005 on appropriate notice to show cause why there should not be such a referral. In support of the application, two affidavits were read, both sworn on 19 April 2005, one by Geoffrey Robert Brookes, a partner in the firm of Dibbs Barker Gosling, and the other by Michael Kevin Connelly, a solicitor employed between August 2001 and March 2004 by Dibbs Barker Gosling.

3 During the course of the hearing of the proceedings, the subject of the appeal, before his Honour Judge Patten in the District Court there was admitted into evidence a letter dated 3 July 2003 from Mr Connelly to the defendant in the proceedings, Perisher Blue Pty Ltd, attention Ken Randall. The letter was subscribed “Partner Responsible: Geoffrey Brookes”. In the judgment of Sheller JA the terms of the letter are set out in full.

4 Also in evidence was a document headed “Witness Protocols for Court Cases and Arbitration Hearings”. A substantial part of that document was also set out in the judgment of Sheller JA..

5 As appears from the evidence set out or summarised in the judgment of Sheller JA including the letter…