Liristis v Candalori

[2017] NSWSC 354

Supreme Court

New South Wales

Medium Neutral Citation:	Liristis v Candalori [2017] NSWSC 354
Hearing dates:	31 March; 5 April 2017
Date of orders:	05 April 2017
Decision date:	05 April 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	(1)   The proceedings are dismissed. (2)   I make no order as to costs.
Catchwords:	PROCEDURE – Orders sought by the plaintiff for the return of laptop passwords and other material held by the plaintiff’s former solicitor – Where the defendant had already returned the passwords and all other material – Proceedings dismissed
Category:	Principal judgment
Parties:	Tony Liristis – Plaintiff Robert Candalori – Defendant
Representation:	Self – Plaintiff   Mr P. McGirr (Solicitor) – Defendant
File Number(s):	2017/92585
Publication restriction:	Nil

Judgment – EX TEMPORE (REVISED)

1. By summons filed on 27 March 2017 the plaintiff, who has appeared unrepresented before me today, seeks orders in the following terms:

1. Order that Robert Candalori of McGirr Lawyers attend the offices of Paul Glissan of Counsel at Selborne Chambers situated on level 4, at 174 Phillip Street, Sydney within 1 week of the orders being made to Obtain (sic) access to the Plaintiff's Laptop in the presence of Mr Paul Glissan, which the Laptop will be in the Care, Custody and Control (sic) of Paul Glissan of Counsel (the Laptop I (sic) to be handled by Mr Glissan only).

2. The costs associated with trying to recover the Data (sic) and trying to obtain access to the Laptop.

3. Costs.

2. The summons is supported by an affidavit of the plaintiff of 17 February 2017. The defendant takes issue with the form of that affidavit, and some of the allegations made in it, but did not formally object to it being read.

3. Also before the Court is a Notice of Motion filed by the defendant seeking orders in the following terms:

1. An order that the proceedings be dismissed against the defendant.

2. No order as to costs.

4. That Notice of Motion is supported by an affidavit of the defendant, Robert Candalori, of 29 March 2017, annexed to which is a document referred to as "Confidential exhibit A". I will return to that document in a moment.

5. The background to the proceedings may be shortly stated. The defendant Mr Candalori, is an employed solicitor at McGirr Lawyers Pty Limited. He acted for the plaintiff in criminal proceedings up until 2016. The plaintiff remains in custody. It appears that in the course of acting for the plaintiff, Mr Candalori was provided by the plaintiff with various passwords through which he was able, with the plaintiff’s consent, to gain access to a data stored on a laptop computer belonging to the plaintiff. That computer is said, by the plaintiff, to contain information pertaining to the proceedings which he currently faces.

6. In about mid-2016 Mr Candalori’s retainer was terminated by the plaintiff. The plaintiff asserts that Mr Candalori still holds a number of passwords which are necessary to allow his new counsel, Mr Glissan, to gain access to the data stored on his computer in order to prepare his case.

7. In addition, the plaintiff has sought to amend the summons to seek a further order that Mr Candalori deliver up to him all documents which are in his possession, and which relate in any way to the proceedings pending against the plaintiff.

8. The affidavit of Mr Candalori states (inter alia) as follows:

6) The password details which the plaintiff seeks in these proceedings were provided to me by the plaintiff some time ago. I have since provided the passwords to the plaintiff's barrister, Mr Paul Glissan. I have no other password details in respect of the plaintiff's laptop computer.

7) Annexed hereto and marked ‘Confidential exhibit A’ is a copy of an email sent by me on 12 February 2017 to Mr Paul Glissan of counsel, then representing the plaintiff, containing the passwords which the plaintiff provided to me in or about late 2015, together with Mr Glissan's email reply to me the same day.

9. For obvious reasons, I do not propose to detail the contents of "Confidential exhibit A" as it contains details of the passwords in question. However, it is evident from that document that on 12 February 2017 Mr Candalori sent an email to Mr Glissan providing those passwords which were in his possession. Mr Glissan, at 11.52am on the same day, responded to Mr Candalori, acknowledging receipt of the email and the information contained in it. It is apparent from the affidavit of Mr Candalori that the passwords he provided to Mr Glissan in his email were the only passwords held.

10. To the extent that the plaintiff sought to amend the summons in the manner outlined at [7] above, Mr McGirr, solicitor, who has appeared before me today (and who is the defendant's principal) has confirmed that his firm holds no material whatsoever pertaining to the plaintiff’s case, and that the entirety of the material previously held has been passed to the plaintiff. The plaintiff pointed out that this assertion was not the subject of any affidavit. That is so. However, the absence of any affidavit going to this issue is explained by the fact that the issue was not raised by the plaintiff in the summons as it was originally drafted. It only became an issue when the plaintiff indicated that he wished to amend his summons so as to expand the relief sought. Mr McGirr is a solicitor and therefore is an officer of the Court. There is no basis upon which to reject what he has told me as being any way untruthful or inaccurate.

11. It follows that the defendant holds no relevant information pertaining to the plaintiff. In these circumstances, the orders sought by the plaintiff, if made, would serve no practical purpose.

12. Accordingly, I make the following orders:

1. The proceedings are dismissed.

2. I make no order as to costs.

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Decision last updated: 10 April 2017