Kashani-Malaki v Di Carlo

SUPREME COURT OF QUEENSLAND

CITATION:

Kashani-Malaki v Di Carlo [2012] QSC 139

PARTIES:

MORTEZA KASHANI-MALAKI
(plaintiff)

AND

SALVATORE DI CARLO
(defendant)

FILE NO:

8474 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

 25 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2012

JUDGE:

Daubney J

ORDERS:

1.   The application is dismissed.

2.   I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – PARTIES – OTHER MATTERS – where the plaintiff was convicted of drug trafficking following criminal proceedings – where the plaintiff had previously retained the defendant as his barrister in respect of those criminal proceedings – where the plaintiff commenced these civil proceedings against the defendant following his conviction but prior to his sentencing – where the plaintiff successfully appealed his conviction and a re-trial was ordered – where the plaintiff plead guilty to the charges and was sentenced to eleven years imprisonment – where the defendant in these proceedings maintains that the Public Trustee is the only person possessed of lawful authority to give instructions for the further prosecution of this proceeding – whether the consent of the Public Trustee of Queensland is required under the Public Trustee Act 1978 (Qld)

Public Trustee Act 1978 (Qld), Part 7
Limitation of Actions Act 1974 (Qld) s 10
Uniform Civil Procedure Rules 1999 (Qld) s 95

Tyler v Krause [2003] 1 Qd R 453; [2002] QCA 295, cited
Watson v Watson [1919] VLR 384

COUNSEL:

N Jarro for the plaintiff
A J H Morris QC with L Copley for the defendant
W Sofronoff QC with G Del Villar for the Public Trustee of Queensland

SOLICITORS:

Robert Bax and Associates for the plaintiff
Milner Lawyers for the defendant
The Official Solicitor for the Public Trustee of Queensland for the Public Trustee of Queensland

1. On 2 July 2009, the plaintiff was found guilty of the offence of trafficking drugs, in contravention of the Drugs Misuse Act 1986 (Qld). The defendant had previously been retained as the plaintiff’s barrister in respect of that criminal proceeding and also in respect of confiscation proceedings which had been brought against the plaintiff by the Commonwealth Director of Public Prosecutions pursuant to the Proceeds of Crime Act 2002 (Cth). 

1. On 6 August 2009, before he was sentenced, the plaintiff instituted the present proceeding against the defendant by filing a claim and statement of claim.  In essence, it was alleged that the defendant compromised the confiscation proceedings contrary to instructions he held from the plaintiff and was negligent in his preparation for the criminal trial.  The plaintiff’s claim against the defendant is for damages for, inter alia, breach of contract and negligence.

1. On 19 August 2009, the plaintiff was sentenced in the criminal proceeding to a term of imprisonment.  He successfully appealed against that conviction, and the Court of Appeal ordered a retrial.  In October 2011, the plaintiff pleaded guilty to…