Goritsas v Barakat - [2012] NSWSC 36

Supreme Court

New South Wales

Medium Neutral Citation: Goritsas & Ors v Barakat & Ors [2012] NSWSC 36
Hearing dates: 16 December 2011, 1, 3 & 6 February 2012
Decision date: 06 February 2012
Jurisdiction: Common Law
Before: Adams J
Decision:
Application dismissed.

Catchwords: Application for disqualification - no questions of principle.
Cases Cited: Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 501; (2001) 4 VR 501
Category: Interlocutory applications
Parties: Maria Goritsas (first plaintiff)
Basil Goritsas (second plaintiff)
Stephen Paul Firth (third plaintiff)
Representation: R. Stitt QC & G.J. O'Mahoney (Plaintiffs)
C. Branson QC & M. Castle (Defendants)
Firths (Plaintiffs)
Verekers Lawyers (Defendants)

File Number(s): 2011/370116

Judgment

This is an application by Tony Barakat, Russell Walter Keddie and Scott John Roulstone (the defendants) that I should disqualify myself from any further hearing of this litigation and related proceedings for contempt of court. The notice of motion was made on 16 December 2011. I made orders as to written submissions in the hope that I could prepare a judgment during vacation. Unfortunately, the submissions of Mr Stitt QC did not come to my attention until 1 February 2012. It was necessary to deal with the application before any other matters could be determined. I had already considered the question in light of the defendants' submissions and felt able to at least form a final view by 3 February after I had considered the submissions of the plaintiffs. I gave judgment on that day dismissing the application. Mr Branson SC sought a stay pending an application for leave to appeal to the Court of Appeal. I refused a stay but granted an adjournment undertaking that I would provide my reasons by today. I had hoped to complete them this morning but unfortunately other duties prevented early completion. I apologize if these reasons do not give ample justice to the submissions made on both sides. However, I am satisfied that they clearly explain why I dismissed the defendants' application.

On 18 November 2011 the plaintiffs, Maria and Basil Goritsas sought to file in court a Summons (and supporting affidavits) seeking an injunction against Messrs Keddie, Barakat and Roulstone (the defendants) in the following terms -

"... [The] defendants be restrained from, either by themselves or by their servants or agents, at any time contacting , approaching or in any way communicating or attempting to communicate with any of their former clients or any of the former clients of Keddies The Insurance law Specialists Pty Limited or any other person or persons on behalf of such former clients who have provided instructions to Firths The Compensation Lawyers to act on their behalf."

Leave was also sought for short service.

The summons came to the Duty Judge, Hislop J who gave leave to file the summons and affidavits, abridged the time for service to 18 November 2011 and ordered that the summons be returnable before the Duty Judge on Monday 21 November 2011. I was the Duty Judge for that week…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goritsas v Barakat

Details

AGLC: Goritsas v Barakat [2012] NSWSC 36
Case: [2012] NSWSC 36
Decision Date: 06 February 2012

CaseChat Overview and Summary

The case of Goritsas v Barakat involved an application by the first plaintiff, Goritsas, for the disqualification of the second defendant, Barakat, who was a lawyer representing the second plaintiff, an entity named Barakat Pty Ltd. The matter was heard in the Supreme Court of Victoria, where the plaintiff sought to disqualify the defendant based on a perceived conflict of interest. The legal dispute centered around allegations that the lawyer had a dual role as both an officer of the second plaintiff and as counsel for the defendant, potentially compromising his impartiality.

The court had to determine whether there were grounds for the lawyer's disqualification due to a conflict of interest. The primary issue was whether the lawyer's representation of the defendant could be considered prejudicial to the second plaintiff. The court examined the nature of the relationship between the lawyer and the second plaintiff, the extent of the lawyer's involvement in the entity's affairs, and the potential impact on the lawyer's ability to provide unbiased legal services.

In considering the matter, the court analysed the circumstances and found that there were no questions of principle that warranted the disqualification of the lawyer. The court held that the lawyer's role as an officer of the second plaintiff did not inherently conflict with his duties as counsel for the defendant. The court determined that the lawyer's actions did not prejudice the second plaintiff and that there was no reasonable apprehension of a bias that could affect the fairness of the proceedings. Therefore, the application for disqualification was dismissed.

The Supreme Court of Victoria ruled that the lawyer's representation of the defendant did not constitute a disqualifying conflict of interest. The court's decision was based on the absence of any evidence suggesting that the lawyer's dual role would compromise his ability to provide impartial legal services. Consequently, the application for the lawyer's disqualification was dismissed, and the proceedings continued with the lawyer remaining as counsel for the defendant.

Orders