Kashani-Malaki v Di Carlo

Kashani-Malaki, the plaintiff, brought an action against Di Carlo, the defendant, who had previously acted as his defence barrister in criminal proceedings where the plaintiff was convicted of drug trafficking. The plaintiff commenced the civil proceedings following his conviction but before his sentencing. The plaintiff successfully appealed his conviction, leading to a retrial where he subsequently pleaded guilty and was sentenced to eleven years imprisonment. Di Carlo argued that the Public Trustee of Queensland is the only person with lawful authority to instruct on the further prosecution of this proceeding, as per the Public Trustee Act 1978 (Qld). The central legal issue was whether the Public Trustee's consent was necessary under the Act for the plaintiff to proceed with the civil action against Di Carlo.

The court examined the legislative framework provided by the Public Trustee Act 1978 (Qld) and determined that the Act did not explicitly require the Public Trustee's consent for the plaintiff to pursue the civil action against his former barrister. The court noted that the Act's provisions were primarily concerned with the management of the plaintiff's estate and the protection of his interests, rather than dictating who could be sued in civil matters. Given that the plaintiff had the legal capacity to initiate and pursue the action against Di Carlo, the court concluded that the Public Trustee's consent was not a prerequisite in this instance.

As a result, the court dismissed the defendant's application. The court further indicated that it would hear from the parties regarding the costs associated with the proceedings. This decision underscores the court's interpretation of the Public Trustee Act 1978 (Qld) in the context of civil litigation and reaffirms the plaintiff's right to pursue legal action against his former defence counsel without requiring the Public Trustee's consent.