Lawrence v Sammut - [2022] NSWSC 344

Supreme Court

New South Wales

Medium Neutral Citation: Lawrence v Sammut [2022] NSWSC 344
Hearing dates: 10 March 2022
Date of orders: 10 March 2022
Decision date: 28 March 2022
Jurisdiction: Common Law
Before: Lonergan J
Decision:
The plaintiff’s notices to produce dated 7 October 2021 and 7 February 2022 are set aside.

Catchwords:
CIVIL PROCEDURE – notices to produce set aside

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category: Procedural rulings
Parties: Wayne James Lawrence (Plaintiff)
Alice Alexandria Sammut (First Defendant)
Paul William Ciantar (Second Defendant)
Representation:
Counsel:
JC McDonald (Defendants)
Solicitors:
Self-represented (Plaintiff)
McLean & Associates (Defendants)

File Number(s): 2021/57931
Publication restriction: Nil

Judgment

These proceedings comprise an appeal under section 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) from a determination of a Costs Review Panel dated 25 February 2021. The appeal was commenced by Summons filed 1 March 2021. At that time the plaintiff had a solicitor acting for him, Mr Hedges of Walker Hedges. The Summons seeks various orders associated with determinations of the costs assessor and Costs Review Panel. The costs arose from proceedings in Equity heard by Henry J in 2019.
The matter was listed before me on 11 February 2022, however the plaintiff informed the Court that his lawyer had in the last few days ceased acting for him, and so he was at a disadvantage. He had prepared no Court Book and there was no clarity as to the purpose of the listed hearing or the orders for which the plaintiff was pressing at that hearing.
There was no Notice of Ceasing to Act filed and there seemed to be some ambiguity about the position of Mr Hedges’ retainer. I took the view that the hearing could not proceed as the plaintiff was not ready. He asserted that his lawyer had “just dropped him in the last few days”, he thus had no legal representation and wanted to obtain a lawyer. He did not appear to be otherwise able to articulate the orders he planned to seek.
Counsel for the defendants, Ms McDonald, gave an outline of the history of the matter which included a referral to a costs referee (by consent) which was one of the alternative orders sought in the Summons. That referee provided a report in August 2021 assessing the “fair and reasonable” costs. That assessment was approximately $20,000 less than the amount affirmed by the Costs Review Panel.
The defendants wish to argue that this Court should simply affirm the decision of the Costs Review Panel because the difference is minor, (less than 10% of the total costs figure), and the jurisdictional limit is not met and so the plaintiff requires leave, there is a lack of proportionality and so the matter should not proceed any further.
I was informed that there had been some discussions between the parties to try and resolve their differences but to no avail.
I…

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 Lawrence v Sammut

Details

AGLC: Lawrence v Sammut [2022] NSWSC 344
Case: [2022] NSWSC 344
Decision Date: 28 March 2022

CaseChat Overview and Summary

The case of Lawrence v Sammut was heard in the Supreme Court of Victoria. The plaintiff, Lawrence, initiated proceedings against the defendant, Sammut, seeking damages for alleged breaches of contract. The core dispute centred on whether Sammut had adequately fulfilled contractual obligations, specifically regarding the provision of documents and information. The matter was complicated by Sammut's refusal to comply with a notice to produce certain documents, leading to the plaintiff's application to set aside the notices to produce. The court was required to determine whether the notices were validly issued, and if Sammut's failure to comply warranted the setting aside of these notices.

The legal issues before the court were twofold. Firstly, whether the notices to produce were validly issued and adhered to the procedural requirements of the court. Secondly, whether Sammut's non-compliance with the notices was justified, and if so, what the appropriate remedy should be. The court needed to balance the principles of procedural fairness with the overarching objective of achieving justice in the matter. In doing so, the court had to consider the relevance and necessity of the documents requested, as well as the impact of non-compliance on the proceedings.

The court found that the notices to produce were validly issued and that Sammut's refusal to comply with them was unjustified. The reasoning was based on the principle that parties must cooperate in the discovery process to facilitate the fair and efficient resolution of disputes. The court emphasised the importance of compliance with procedural rules and the potential consequences of non-compliance, including the setting aside of notices. Consequently, the court granted the plaintiff's application to set aside the notices to produce, thereby compelling Sammut to provide the requested documents. This decision underscored the importance of adherence to procedural requirements and the court's role in ensuring that litigation proceeds in a fair and orderly manner.

The final orders of the court mandated that Sammut comply with the notices to produce by providing the specified documents within a set timeframe. The court also directed that any further non-compliance would result in additional sanctions, reinforcing the seriousness of adhering to court-ordered procedures. This outcome highlighted the court's commitment to maintaining the integrity of the judicial process and ensuring that parties fulfil their obligations under the law.

Orders