Goldberg v Law Society of New South Wasles

[1990] HCATrans 105

A -b,,1U. STRALIA"t.!- -~'»)'$-««('-~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S9 of 1989

B e t w e e n -

CHARLES ALROY GOLDBERG

Applicant

and

LAW SOCIETY OF NEW SOUTH WALES

Respondent

Application for dismissal for

want of prosecution

MASON CJ
TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 6 AUGUST 1990, AT 10.43 AM

Goldberg(2) 1 6/8/90

Copyright in the High Court of Australia

MR G.C. LINDSAY:  May it please the Court, I appear for the

Law Society.	(instructed by the Law Society of New
South Wales)

MR R.J.B. ALLSOP:  Your Honours, I would seek Your Honours'

leave to withdraw from these proceedings and to

cease acting for Mr Goldberg on the basis set out

in my affidavit of 31 July.

MASON CJ:  Yes, but there is a problem about that, is there

not? You are proceeding on the footing that it is

necessary to secure the leave of this Court in
order to terminate Mr Goldberg's retainer. Now, I

think when you look at the Rules, the Rules provide

that you should be seeking an order that you have

ceased to act. In other words, the Rules proceed

on the footing that the relationship is first
terminated and once the relationship is terminated,

then the Court can make an order to the effect that

it is terminated, and all you have done is notify

your client that you are going to apply to the Court for leave to terminate the relationship,

indicating thereby that it is not presently

terminated.

MR ALLSOP:  I am not sure what my relationship is with him

at the moment, but I have sought to clarify it on a

number of occasions. I have assumed that he has

regarded it as terminated because of his failure to

respond to my correspondence.

MASON CJ:  But you have not presented it to the Court on

that footing.

MR ALLSOP:  I cannot take it any further then, Your Honour.

As I have set out in that affidavit, I have written to him on 11 occasions since September, I have

sought instructions, they have not been

forthcoming.	I have assumed that this was the
appropriate course.	I apologize to the Court for

putting the cart before the horse, so to speak, but

I think I have made my intentions to him very

clear, and I assumed he has made his intentions

clear to me. As far as I am concerned, the

relationship has terminated.

MASON CJ:  Yes, that may be, but on the material you have

placed before the Court, I see a difficulty in

making the order that you are seeking and, in any

event, it is not the right form of order.

MR ALLSOP:	If Your Honour please.
MASON CJ:	Yes, Mr Lindsay.
Goldberg(2)	6/8/90
MR LINDSAY:	Your Honour, it is a question then of how the

Court wishes to proceed because we have a motion on

for dismissal of the proceedings for want of

prosecution. The application for special leave to

appeal is, as I understand it, also before the

Court and will not be prosecuted in fact, so it is

a matter of how the Court wishes to proceed.

MASON CJ:· The Court is of opinion that you should proceed

with your application to have the application

dismissed for want of prosecution in the first

instant.

MR LINDSAY:  Thank you, Your Honour. I move on the motion

which was dated, and I believe filed, on 7 May 1990

and in support of that motion there is an affidavit

of Virginia Penelope Shirvington of 7 May 1990

which I would seek to read. Additionally to that

there is an affidavit of Mrs Shirvington which was

sworn and I believe filed on 3 August, that is

Friday.

MASON CJ:  We do not seem to have these papers, Mr Lindsay;

at least Justice Toohey and I do not, nor does

Justice McHugh.

MR LINDSAY:  Well, I cannot explain that, Your Honour.

They	should have been before the Court. I can hand
up a	copy of Mrs Shirvington's affidavits and I can
hand	up what amounts to a chronology.
Perhaps in the meantime, Your Honour, what I

could do is hand up a bundle of documents which, for

present purposes is relevant only in so far as it

contains a chronology and sets out the background of

the proceedings.

MASON CJ:	Yes.
MR LINDSAY:	The affidavits to which I have referred really

take the matter no further than the chronologies.

The proceedings in the Court of Appeal came to a

conclusion in December 1988 when an appeal by

Mr Goldberg against an order for his removal from

the roll was dismissed and in dealing with the

judgment the Court of Appeal extended a stay subject

to Mr Goldberg undertaking to prosecute his special

leave application with due diligence.

The application for leave was filed on

7 February 1989 and there were some delays in the

preparation of the application book and the service

of it. We came before this Court on 7 August last

year and on that occasion Mr Goldberg sought an

adjournment for the purpose of seeking further legal

aid and he swore an affidavit of 7 August 1989 and

he was present in Court on that occasion, which Mrs

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Shirvington's affidavit of last week seeks to

demonstrate.

We have from the affidavit of Mr Allsop filed

in support of his application for leave to withdraw

an indication that the legal aid authorities in

September last year disallowed an appeal against

refusal to grant legal aid, and in fact legal aid

has not been granted. The proceedings came back

before this Court after a time on 11 May and there

was, at that time, no appearance, save a formal one

by Mr Goldberg's solicitors seeking time to contact

Mr Goldberg.

Absent the affidavits, Your Honour, I do not

know how the best way to proceed is but we would be

seeking to rely on the -

MASON CJ:  If you would read the affidavit.

MR LINDSAY:  Certainly. Mrs Shirvington's affidavit of 7

May, omitting the formal parts, says:

I am a solicitor of the Supreme Court of

New South Wales and my name is entered in the

register of practitioners kept in the registry

of this honourable court. I am employed by

the respondent, the Law Society, as a legal

officer within its professional conduct

department and under the supervision of the

manager of that said department, Rosemary

McDougall, a solicitor of the Supreme Court of

New South Wales, whose name, I am informed, is

also entered in the register of practitioners

kep~ in the registry of this honourable court,. and I have the conduct of the matter on behalf of the respondent.

On 7 February 1989 at 4.54 pm the

respondent was served by facsimile

transmission with the applicant's application

for special leave to appeal herein dated 7

February 1989. The respondent filed and

served its appearance on 10 February 1989. On

5 April 1989 the solicitors for each of the

parties attended at the registry of this

honourable court when the index for

application books were settled and the
solicitor was directed to file application

books within 30 days of that date.

I was subsequently advised in a telephone conversation with Mr Tony Thew of the registry

on 11 May 1989 that the time for filing of

application books had been extended until the

following day on the application of the

applicant's solicitors. On 15 May 1989 the

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applicant's solicitors served application

books on the respondent.

On 7 August 1989 this matter was listed

before this honourable Court when it was

adjourned by consent to a date to be fixed on

the grounds contained in the applicant's

affidavit of 7 August 1989, that is that he

was unable to prosecute his appeal pending the

determination of his appeal to the Legal Aid

Commission against its refusal to grant him

legal aid.

On 8 August 1989 I wrote a letter to the

applicant's solicitors, a copy of which is

annexed, in which I asked them to advise me as

soon as they were informed of the outcome of

the applicant's appeal to the Legal Aid

Commission against its refusal to grant him

legal aid for his application for special

leave to appeal to this Court.

On 22 September 1989 I spoke to the

applicant's solicitor, Mr Richard Allsop, who

advised me that he would be having a

conference with the applicant that afternoon
and would inform me of the result of that

conference. Annexed is a letter to the

applicant's solicitors dated 4 October 1989 -

and that letter is really a follow up asking for

information as to the applicant's position; a

similar letter is annexed, 19 October 1989, and

another one 27 November 1989.

Other letters were the applicant's solicitor's

letter of 16 November 1989, a follow up by the Law

Society of 25 January 1990 and the applicant's

solicitors wrote on 8 February 1990, in each case

those letters being directed to ascertaining what
the applicant's position was in the prosecution of

the application before this Court:

On 9 February 1990 I received a copy of a

letter sent by the Deputy Registrar of this

honourable Court to the applicant's solicitors

dated 7 February 1990 -

and then there was a follow up letter from the Law

Society to which there was, at that stage, no

response, and again in each case it is a matter of

endeavouring to ascertain what the applicant's

position was in the prosecution of the proceedings

before this Court.

Then on 24 April 1990 there was a further

letter from the Law Society seeking to ascertain

Goldberg(2) 6/8/90

what was happening in the proceedings and there was

no response from the applicant's solicitors in that

respect. Then there was a formal request that the

application for special leave to appeal be

dismissed by this Court for want of prosecution.

That is the affidavit of Mrs Shirvington of

7 May 1990. There was an additional affidavit

filed last week of 3 August 1990.

MASON CJ: Yes, we do have that. Now, on that material you

move for dismissal for want of prosecution?

MR LINDSAY:	I do.
TOOHEY J:	Mr Lindsay, could I just ask you a question

because I am not au fait with the local statutes

relating to the profession, but the cancellation of

the practising certificate that took place in 1985,

was that the result of disciplinary action or a

failure to renew the certificate or what?

MR LINDSAY:  It was a result of the solicitor's failure to

respond to formal requests under the Legal

Practitioners Act for an explanation of certain

matters.	The solicitor failed to respond to
letters of the Law Society ..	They, pursuant to the

Legal Practitioners Act, as it was then in force,

sent him letters saying, "If you don't explain we will cancel your practising certificate." In due

course they cancelled his practising certificate.

TOOHEY J:  So there has been no entitlement to practise

since late 1985, is that - - -

MR LINDSAY:  No, there was an appeal lodged and that had the

effect u·nder the old Legal Practitioners Act of

deeming the practising certificate to continue from

a time. However, midway through the proceedings

before the Solicitors Statutory Committee the

solicitor's practising certificate lapsed and was
not renewed. So, for a substantial period of time

he has not been practising as a solicitor.

TOOHEY J: Yes, thank you.
MASON CJ:	Now, do you wish to say anything in response to the application for dismissal for want of
prosecution?
MR ALLSOP:	No, Your Honour, I cannot say anything.

MASON CJ: The evidence establishes that there has been

inordinate, indeed gross delay, in the prosecution

of this application for special. The judgment

appealed from was delivered in December 1988 and

the application for special leave was filed as long

ago as February 1989. What is more, the evidence

Goldberg(3) 6/8/90

relating to the applicant's relationship with his

own solicitor indicates that he does not intend to

prosecute this application. The application for

special leave will therefore stand dismissed for

want of prosecution.

Do you ask for costs, Mr Lindsay, of the

application for special leave and the application

for dismissal for want of prosecution?

MR LINDSAY:  I do, Your Honour, yes.

MASON CJ: Very well, the applicant will pay the

respondent's costs of the application for special
leave including the costs of the application for

dismissal for want of prosecution.

MR LINDSAY:  May it please the Court.

AT 10.59 AM THE MATTER WAS ADJOURNED SINE DIE

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