Muriniti v King; Newell v Hemmings

[2019] NSWCA 232

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Muriniti v King; Newell v Hemmings [2019] NSWCA 232

Hearing dates:

16 September 2019

Date of orders:

16 September 2019

Decision date:

02 October 2019

Before:

Payne JA at [1]; McCallum JA at [44]; Simpson AJA at [45]

Decision:

In the Muriniti proceedings [2017/109337]:

 

(1) For the purposes of this application to the extent necessary dissolve any earlier order of this Court staying proceedings [2017/109337].
(2) Pursuant to Rule 51.4(3) of the Uniform Civil Procedure Rules order that Lawcover Insurance Pty Ltd be joined as a respondent to proceedings [2017/109337] in this Court.
(3) The summons seeking leave to appeal in proceedings [2017/109337] in this Court is dismissed pursuant to Rule 12.7 and Rule 51.1(3) of the Uniform Civil Procedure Rules 2005 (NSW).
(4) That Mr Muriniti and L C Muriniti & Associates pay the costs of Lawcover’s motion filed on 2 August 2019.
(5) That Mr Muriniti and L C Muriniti & Associates pay the costs of all the respondents to the application for leave to appeal.

In the Newell proceedings [2017/201727]:

 

(1) For the purposes of this application to the extent necessary dissolve any earlier order of this Court staying proceedings [2017/201727].
(2) Pursuant to Rule 51.4(3) of the Uniform Civil Procedure Rules order that Lawcover Insurance Pty Ltd be joined as a respondent to proceedings [2017/201727] in this Court.
(3) The summons seeking leave to appeal in proceedings [2017/201727] in this Court is dismissed pursuant to Rule 12.7 and Rule 51.1(3) of the Uniform Civil Procedure Rules 2005 (NSW).
(4) That Mr Newell pay the costs of Lawcover’s motion filed on 2 August 2019.
(5) That Mr Newell pay the costs of all the respondents to the application for leave to appeal.

 

In both cases direct that:

 The Registrar of the Court of Appeal forward the papers in these proceedings to the Legal Services Commissioner with a recommendation that he investigate whether the conduct of Mr Muriniti, L C Muriniti & Associates and/or Mr Newell disclosed therein amounts to either unsatisfactory professional conduct or professional misconduct.

Catchwords:

APPEALS – applications for leave to appeal from personal costs orders against lawyers – whether necessary for Lawcover to be joined to the proceedings for the purposes of having the summonses seeking leave to appeal dismissed – where Lawcover had determined that it would not appeal the personal costs orders – where the Court had held that Lawcover was contractually entitled so to conclude – where applicants were permanently restrained from taking any steps to conduct or prosecute an appeal – where applicants have frustrated Lawcover’s reasonable and proper attempts to bring the applications to an end – Lawcover joined – summonses seeking leave to appeal dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 59, 61
Insurance Contracts Act 1984 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 12.8, 51.1(3), 51.4(3)

Cases Cited:

Chaina v The Presbyterian Church (NSW) Property Trust [2016] NSWCA 160
Lawcover Insurance Pty Ltd v Leonardo Carlo Muriniti & Robert Duane Newell [2017] NSWSC 1557
Muriniti; Newell v Lawcover Insurance Pty Ltd (No 2) [2018] NSWCA 311
Muriniti & Anor v Lawcover Insurance Pty Ltd [2019] HCASL 151
Young v King [2016] NSWCA 282
Young v King [2004] NSWLEC 93
Young v King (No 4) [2012] NSWLEC 236
Young v King (No 6) [2015] NSWLEC 111
Young v King (No 8) [2015] NSWLEC 187
Young v King (No 9) [2016] NSWLEC 4

Category:

Principal judgment

Parties:

In the Muriniti proceedings [2017/109337]:

 

Leonardo Carlo Muriniti (First Applicant)
L C Muriniti & Associates (Second Applicant)
Brendan King (First Respondent)
Kristina King (Second Respondent)
Ian Hemmings (Third Respondent)
Stephen Perrens (Fourth Respondent)
Hughes Trueman Pty Ltd (Fifth Respondent)
Warwick Davies (Sixth Respondent)
Michael Brearley (Seventh Respondent)
Ross Fraser (Eighth Respondent)
Tony Tuxworth (Ninth Respondent)
Copeland Lethbridge (Tenth Respondent)
Bee & Lethbridge Pty Ltd (Eleventh Respondent)
Geoff Goodyer (Twelfth Respondent)
Victor Schubert (Thirteenth Respondent)

 

Lawcover Insurance Pty Ltd (Applicant on notice of motion)
Leonardo Carlo Muriniti (First Respondent on notice of motion)
L C Muriniti & Associates (Second Respondent on notice of motion)

 

In the Newell proceedings [2017/201727]:

 

Robert Duane Newell (Applicant)
Ian Hemmings (First Respondent)
Stephen John Perrens (Second Respondent)
Hughes Trueman Pty Ltd (Third Respondent)
Warwick Davies (Fourth Respondent)
Michael Brearley (Fifth Respondent)
Ross Fraser (Sixth Respondent)
Tony Tuxworth (Seventh Respondent)
Copeland Lethbridge (Eighth Respondent)
Bee & Lethbridge Pty Ltd (Ninth Respondent)
Geoff Goodyer (Tenth Respondent)
Victor Schubert (Eleventh Respondent)

  Lawcover Insurance Pty Ltd (Applicant on notice of motion)
Robert Duane Newell (Respondent on notice of motion)

Representation:

In the Muriniti proceedings [2017/109337]:

 

Counsel:
R Newell (Applicants)
A R Zahra (Lawcover Insurance Pty Ltd)
A Bhasin (Seventh Respondent)
J Reid (Eighth Respondent)

 

Solicitors:
Applicants (Self-represented)
Sparke Helmore (Lawcover Insurance Pty Ltd)
T L Stern (First and Second Respondents)
Moray & Agnew (Third Respondent)
Gilchrist Connell (Sixth Respondent)
Norton Rose Fulbright (Seventh Respondent)
HWL Ebsworth (Ninth Respondent)
Walker Hedges & Co (Tenth, Eleventh and Twelfth Respondents)

 

In the Newell proceedings [2017/201727]:

 

Counsel:
Applicant (Self-represented)
A R Zahra (Lawcover Insurance Pty Ltd)
A Bhasin (Fifth Respondent)
J Reid (Sixth Respondent)

  Solicitors:
Sparke Helmore (Lawcover Insurance Pty Ltd)
Moray & Agnew (First Respondent)
Gilchrist Connell (Fourth Respondent)
Norton Rose Fulbright (Fifth Respondent)
HWL Ebsworth (Seventh Respondent)
Walker Hedges & Co (Eighth, Ninth and Tenth Respondents)

File Number(s):

2017/109337 (Muriniti proceedings); 2017/201727 (Newell proceedings)

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Land and Environment Court of New South Wales

Jurisdiction:

Class 4

Citation:

[2017] NSWLEC 34

Date of Decision:

27 March 2017

Before:

Sheahan J

File Number(s):

2016/160767
2016/160933

Judgment

1. PAYNE JA: On 16 September at the conclusion of oral argument, the Court made the following orders:

In the Muriniti proceedings [2017/109337]:

(1)    For the purposes of this application to the extent necessary dissolve any earlier order of this Court staying proceedings [2017/109337];

(2) Pursuant to Rule 51.4(3) of the Uniform Civil Procedure Rules order that Lawcover Insurance Pty Ltd be joined as a respondent to proceedings [2017/109337] in this Court;

(3) The summons seeking leave to appeal in proceedings [2017/109337] in this Court is dismissed pursuant to Rule 12.7 and Rule 51.1(3) of the Uniform Civil Procedure Rules 2005 (NSW);

(4)    That Mr Muriniti and L C Muriniti & Associates pay the costs of Lawcover’s motion filed on 2 August 2019;

(5)    That Mr Muriniti and L C Muriniti & Associates pay the costs of all the respondents to the application for leave to appeal.

In the Newell proceedings [2017/201727]:

(1)    For the purposes of this application to the extent necessary dissolve any earlier order of this Court staying proceedings [2017/201727];

(2) Pursuant to Rule 51.4(3) of the Uniform Civil Procedure Rules order that Lawcover Insurance Pty Ltd be joined as a respondent to proceedings [2017/201727] in this Court;

(3) The summons seeking leave to appeal in proceedings [2017/201727] in this Court is dismissed pursuant to Rule 12.7 and Rule 51.1(3) of the Uniform Civil Procedure Rules 2005 (NSW);

(4)    That Mr Newell pay the costs of Lawcover’s motion filed on 2 August 2019;

(5)    That Mr Newell pay the costs of all the respondents to the application for leave to appeal.

2. Reasons were reserved in each case. These are my reasons for joining in those orders.

3. The substantive proceedings in this Court arise from two summonses seeking leave to appeal against orders made by Sheahan J in the Land and Environment Court on 27 March 2017: Young v King (No 11) [2017] NSWLEC 34. The present applicant, Lawcover Insurance Pty Ltd, (“Lawcover”) is not named as a party to either summons. It nevertheless, by notices of motion filed on 2 August 2019, seeks, inter alia, orders:

1. joining it as respondent to each summons;

2. dismissing each summons; and

3. incidental relief.

4. It is necessary to explain the complicated litigation history that has precipitated Lawcover’s applications.

5. In 2004, McClellan CJ of the LEC, by consent, dismissed proceedings brought by a Mrs Young against her neighbours, the Kings, in which Mrs Young had sought the removal of allegedly unlawful works and the reinstatement of a pre-existing drainage system on the Kings’ property: Young v King [2004] NSWLEC 93.

6. In 2004, L C Muriniti & Associates (which is apparently a business name and not a separate entity) and Mr Muriniti commenced to act for Mrs Young. In 2008, Mrs Young filed a notice of motion seeking to set aside the consent orders. Mr Newell acted as advocate for Mrs Young on this notice of motion and in all subsequent applications.

7. On 19 October 2012, Sheahan J summarily dismissed the 2008 notice of motion: Young v King (No 4) [2012] NSWLEC 236. Mrs Young successfully appealed to this Court from the order summarily dismissing the notice of motion and the matter was remitted to the Land and Environment Court for rehearing.

8. On 9 July 2015, after a full hearing, Sheahan J dismissed the 2008 notice of motion to set aside the consent orders: Young v King (No 6) [2015] NSWLEC 111. His Honour ordered Mrs Young to pay the Kings’ costs of proceedings in the Land and Environment Court since 8 March 2004. In the course of his judgment, his Honour made remarks critical of the conduct of Mr Muriniti, L C Muriniti & Associates and Mr Newell.

9. On 20 August 2015, Mrs Young filed a notice of motion in which she sought orders for indemnity costs in her favour against the Kings and 16 non-parties. On 1 December 2015, Sheahan J made an order for summary dismissal of Mrs Young’s costs application against a number of the non-parties. His Honour ordered that Mrs Young pay the costs of those non-parties on the summary dismissal application: Young v King (No 8) [2015] NSWLEC 187. On 19 February 2016, his Honour dismissed Mrs Young’s costs application against the Kings and the remaining eight non-parties and ordered Mrs Young to pay the costs of her costs application on an indemnity basis insofar as it related to the costs incurred by the Kings and on an ordinary basis in respect of the costs of the eight non-parties. His Honour stood over an application for personal costs orders against Mr Muriniti, L C Muriniti & Associates and Mr Newell to a date to be fixed and also ordered that the costs order made against Mrs Young in Young v King (No 6) be amended to order that costs incurred by the Kings be payable on an indemnity basis: Young v King (No 9) [2016] NSWLEC 4.

10. On 19 October 2016, appeals from Young v King (No 6) and Young v King (No 9) were dismissed by this Court: Young v King [2016] NSWCA 282.

11. On 27 March 2017, Sheahan J ordered Mr Muriniti, L C Muriniti & Associates and Mr Newell to pay, jointly and severally, on an indemnity basis, the costs of 11 of the non-parties in respect of the various costs applications that had been brought in the proceedings: Young v King (No 11) [2017] NSWLEC 34. Mr Muriniti was ordered personally to pay the costs of the Kings. In making the personal costs order against Mr Muriniti, L C Muriniti & Associates and Mr Newell, Sheahan J at [210] and [212] found that they had:

“… behaved incompetently, unprofessionally, inappropriately, and against the true interests of their client, who was entitled to expect competent and reasonable representation.

…

Having embarked on these futile courses, the lawyers continued to incur, on Young’s behalf, unnecessary liability for her own costs and the costs of those she unreasonably pursued, and they must be held responsible.”

12. On 27 March 2017, pursuant to a policy of insurance, Lawcover indemnified Mr Muriniti and Mr Newell in respect of the personal costs order made against them in Young v King (No 11).

13. On 27 April 2017, Lawcover told Mr Muriniti, L C Muriniti & Associates and Mr Newell that Lawcover did not intend to appeal from the orders made in Young v King (No 11).

14. On 28 June 2017, Mr Muriniti and L C Muriniti & Associates filed a summons seeking leave to appeal from the orders made in Young v King (No 11) [2017/109337]. On 28 June 2017, Mr Newell filed a summons seeking leave to appeal and leave to appeal out of time from the orders made in Young v King (No 11) [2017/201727]. The Muriniti summons named the Kings and 11 others as respondents. The Newell summons named 11 respondents.

15. On the same day, 28 June 2017, Lawcover filed a summons in the Equity Division seeking orders restraining Mr Muriniti, L C Muriniti & Associates and Mr Newell from prosecuting their applications for leave to appeal from Young v King (No 11).

16. On 16 November 2017, Sackar J in Lawcover Insurance Pty Ltd v Leonardo Carlo Muriniti & Robert Duane Newell [2017] NSWSC 1557 determined that Mr Muriniti, L C Muriniti & Associates and Mr Newell should be permanently restrained from taking any steps to conduct or prosecute any appeal, including in matters [2017/109337] and [2017/201727] in this Court. Mr Muriniti and Mr Newell were also ordered to take all steps reasonably required to ensure that a solicitor appointed by Lawcover be recorded as the solicitor on the record for Mr Muriniti and Mr Newell in proceedings [2017/00109337] and [2017/00201727] in this Court. In short, Sackar J held that, on the proper construction of the policies of insurance issued by Lawcover, Lawcover was entitled to “shut the [proposed] appeals down” (at [217]).

17. On 14 December 2018, an appeal to this Court from the orders made by Sackar J was dismissed:Muriniti; Newell v Lawcover Insurance Pty Ltd (No 2) [2018] NSWCA 311. On 14 May 2019, Bell and Nettle JJ in the High Court refused special leave to appeal: Muriniti & Anor v Lawcover Insurance Pty Ltd [2019] HCASL 151.

The present status of the applications for leave to appeal

18. The position is that Lawcover determined in April 2017 that it would not appeal the orders for costs made in Young v King (No 11). It has been conclusively determined by this Court that Lawcover was contractually entitled so to determine. It has also been conclusively determined by this Court that Sackar J was correct to restrain Mr Muriniti, L C Muriniti & Associates and Mr Newell from taking any steps to conduct or prosecute any appeal from orders made in Young v King (No 11), including [2017/109337] and [2017/201727].

19. On these applications the following evidence was read:

1. Lawcover read the affidavit of Deborah Morris sworn on 2 August 2019. Ms Morris, a solicitor acting for Lawcover, exhibited correspondence wherein Lawcover attempted to bring the applications for leave to appeal to an end. Ms Morris also exhibited the Lawcover policy.

2. Mr Muriniti and Mr Newell read the affidavit of Leonardo Carlo Muriniti sworn on 30 August 2019. Mr Muriniti annexed to his affidavit the parties’ submissions filed in the proceedings before Sackar J, the transcript of the hearing before Sackar J and further correspondence between the parties.

20. What is clear from the evidence is that it has been conclusively determined by this Court that Sackar J was correct to restrain Mr Muriniti, L C Muriniti & Associates and Mr Newell from taking any steps to conduct or prosecute any appeal, including in matters [2017/109337] and [2017/201727]. It is clear from the evidence and from the written and oral submissions made by Mr Muriniti, L C Muriniti & Associates and Mr Newell that despite the permanent injunction and the order of the Court that Mr Muriniti and Mr Newell take all steps reasonably required to ensure that a solicitor appointed by Lawcover be recorded as the solicitor on the record for Mr Muriniti and Mr Newell in proceedings [2017/109337] and [2017/201727], Mr Muriniti, L C Muriniti & Associates and Mr Newell have consistently frustrated all of Lawcover’s attempts to bring the applications for leave to appeal to an end. That active non-cooperation has persisted even after the High Court refused special leave in May 2019 and persists today.

Relevant provisions

21. Lawcover seeks an order pursuant to r 51.4(3) of the Uniform Civil Procedure Rules 2005 (NSW) that it be joined to both proceedings for the purposes of having the summons seeking leave to appeal dismissed in each case. It was determined by Sackar J in proceedings between these parties that Lawcover has an interest in the applications for leave to appeal as the contract of insurance provides that if Mr Muriniti, L C Muriniti & Associates and Mr Newell are unsuccessful, Lawcover may be exposed to claims by the successful respondents to the applications: [2017] NSWSC 1557 at [218].

22. Rule 51.1(3) of the Uniform Civil Procedure Rules provides:

Part 51 Court of Appeal

Division 1 Preliminary

51.1      Application of Part

…

(3)     Subject to this Part, the other provisions of these rules apply, so far as applicable, to proceedings in the Court.

23. UCPR r 12.7 states:

12.7      Dismissal of proceedings etc for want of due despatch

(1)     If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2)     If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

Note.

See rule 42.20 as to the effect of dismissal with respect to costs.

24. Section 59 of the Civil Procedure Act 2005 (NSW) provides:

59        Elimination of delay

In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.

25. Section 61 of the Civil Procedure Act provides:

61        Directions as to practice and procedure generally

(1)    The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2)    In particular, the court may, by order, do any one or more of the following:

(a)    it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b)    it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

(c)    it may give such other directions with respect to the conduct of proceedings as it considers appropriate.

(3)     If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following:

(a)     it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,

(b)     it may strike out or limit any claim made by a plaintiff,

(c)     it may strike out any defence filed by a defendant, and give judgment accordingly,

(d)     it may strike out or amend any document filed by the party, either in whole or in part,

(e)     it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce,

(f)     it may direct the party to pay the whole or part of the costs of another party,

(g)     it may make such other order or give such other direction as it considers appropriate.

Submissions on behalf of Mr Muriniti, L C Muriniti & Associates and Mr Newell

26. Lengthy written and oral submissions were made by Mr Muriniti, L C Muriniti & Associates and Mr Newell.

27. Those submissions sought to re-agitate the proceedings already conclusively determined between Lawcover, on the one hand, and Mr Muriniti, L C Muriniti & Associates and Mr Newell on the other. In that litigation between the same parties, it has been conclusively determined that:

1. Lawcover determined in April 2017 that it did not intend to appeal from the orders made in Young v King (No 11) and had communicated that matter to Mr Muriniti, L C Muriniti & Associates and Mr Newell (at [87] and [173]);

2. Pursuant to cl 23 of the relevant policy of insurance, Mr Muriniti, L C Muriniti & Associates and Mr Newell were deemed to have consented to Lawcover’s decision not to pursue an appeal from orders made in Young v King (No 11) (at [172]);

3. The allegations of breach of contract, bad faith and contravention of the Insurance Contracts Act 1984 (Cth) made by Mr Muriniti, L C Muriniti & Associates and Mr Newell against Lawcover were baseless (at [177]-[214]);

4. Mr Muriniti, L C Muriniti & Associates and Mr Newell were not permitted to conduct any appeal or application for leave to appeal from orders made in Young v King (No 11) even if they agreed to bear their own costs (at [219]).

28. The essence of the submissions in this Court made by Mr Muriniti, L C Muriniti & Associates and Mr Newell was that:

“47. Lawcover’s grounds for the application (stated very generally) are set out at [26] and [27] and rehearsed at [6] and [7] above. It is simply wrong for Lawcover to state that “having regard to the orders of Sackar J”, the appeal proceedings “can never be progressed.” It is equally wrong and misleading to assert, as Lawcover does, that by reason of those same orders, the appeal proceedings are “in effect permanently stayed.” Both of these propositions are devoid of any support from submissions which condescend to assist in construction of the orders. The considered (if unexplained) decision not to meaningfully ventilate the question of the proper construction of the orders is prefigured by correspondence which shows that Lawcover has refused to state, despite a pointed request from the Lawyers, what precisely they contend is mandated by the Orders.”

29. That submission was developed orally. Doing the best I can, the steps in the argument appear to be these:

1. It was “unnecessary” for this Court to make orders joining Lawcover as a respondent and dismissing the appeal proceedings. This was because Lawcover was entitled, or alternatively obliged, by the orders made by Sackar J, to ensure that a solicitor appointed by Lawcover become the solicitor on the record for Mr Muriniti and Mr Newell in the appeal proceedings;

2. Any solicitor appointed by Lawcover as the solicitor on the record for Mr Muriniti and Mr Newell in the appeal proceedings would be required to make decisions about the future conduct of the appeal proceedings in good faith;

3. Lawcover would be faced by an insurmountable conflict of interest in providing instructions to this solicitor. This was because Lawcover was a potential defendant in an unarticulated, unpleaded and serious conspiracy to cause loss to Mr Muriniti, L C Muriniti & Associates and Mr Newell. The allegation contained at its centre an improper attempt by Lawcover to cause “[Mrs] Young and her lawyers to have a falling out and leave [Mrs] Young without any legal representation” in the Land and Environment Court;

4. There was an unexplained difference in substance between the determination of Lawcover not to appeal the orders made in Young v King (No 11) and Lawcover’s determination to seek to bring to an end the appeal proceedings from the orders made in Young v King (No 11) which proceedings were commenced in breach of contract. If the appeal proceedings were discontinued on Lawcover’s instructions, Lawcover faced the claim from Mr Muriniti, L C Muriniti & Associates and Mr Newell of breach of duty and/or contract by reason of the improper attempt by Lawcover to cause “[Mrs] Young and her lawyers to have a falling out and leave [Mrs] Young without any legal representation” in the Land and Environment Court;

5. As a result of the alleged conflict of interest, any solicitor appointed by Lawcover as the solicitor on the record for Mr Muriniti and Mr Newell in the appeal proceedings could not discontinue the appeal proceedings by reason of Lawcover’s conflict of interest;

6. It would be wrong for this Court to permit the joinder of Lawcover as a respondent to the appeals and dismiss each summons seeking leave to appeal as this would destroy the potential claim by Mr Muriniti, L C Muriniti & Associates and Mr Newell of breach of duty and/or contract by reason of the improper attempt by Lawcover to cause “[Mrs] Young and her lawyers to have a falling out and leave [Mrs] Young without any legal representation” in the Land and Environment Court.

Conclusion

30. The submission that the summonses seeking leave to appeal filed by Mr Muriniti, L C Muriniti & Associates and Mr Newell can ever be prosecuted is hopeless in the face of:

1. the decision of Lawcover not to pursue an appeal from orders made in Young v King (No 11); and

2. the conclusive determinations of Sackar J and this Court, from which the High Court refused special leave, that Lawcover was entitled so to conclude.

31. Lawcover is correct to submit that, having regard to the orders of Sackar J, the appeal proceedings “can never be progressed”.

32. It is to be recalled that the only application before this Court is the one made by Lawcover seeking an order pursuant to r 51.4(3) of the Uniform Civil Procedure Rules 2005 (NSW) that it be joined to both proceedings for the purposes of having the summons seeking leave to appeal dismissed in each case.

33. The extravagant and labyrinthine argument advanced by Mr Muriniti, L C Muriniti & Associates and Mr Newell simply does not address that application, other than to assert that the orders sought are “unnecessary”.

34. I am persuaded by the correspondence tendered on the application and the written and oral submissions that it is “necessary” for Lawcover to be joined to both proceedings for the purposes of having the summons seeking leave to appeal dismissed in each case. This is because the appeal proceedings, following the orders made by Sackar J, can never be progressed and Mr Muriniti, L C Muriniti & Associates and Mr Newell have made, and continue to make, unwarranted allegations of a most serious kind about Lawcover’s conduct in seeking to bring the proceedings to a close.

35. Lawcover’s conduct, on all of the evidence, has been proper and commendably restrained. The submission made by Mr Muriniti, L C Muriniti & Associates and Mr Newell that there is any difference in substance between the determination of Lawcover not to appeal and a determination to seek to bring the appeal proceedings commenced in breach of contract to an end is, on the facts of this case, a distinction without a meaningful difference.

36. Given the extravagant and, on the evidence, baseless claims made by Mr Muriniti, L C Muriniti & Associates and Mr Newell about Lawcover’s conduct I propose to deal with the rest of their submissions:

1. First, there is no evidence or coherent argument advanced that Mr Muriniti, L C Muriniti & Associates and Mr Newell have any cause of action against Lawcover. If it existed, any suggested cause of action could and should have been identified in the evidence. It was not. I reject the submission that it is relevant to examine for this purpose whether or not any conspiracy allegation was pleaded or addressed in Young v King (No 6). The suggested breach of duty and/or contract by Lawcover “by reason of having elected to bring the appeal proceedings to an end without regard to their merits” cannot be correct in the face of the conclusive finding by this Court that Lawcover was entitled not to appeal from orders made in Young v King (No 11).

2. Secondly, there is no evidence or coherent argument advanced that had Lawcover nominated a solicitor to come on to the record to represent Mr Muriniti, L C Muriniti & Associates and Mr Newell that Lawcover would have faced any arguable conflict of interest. Much less was it demonstrated how, assuming contrary to the fact that Mr Muriniti, L C Muriniti & Associates and Mr Newell had co-operated to permit Lawcover’s nominated solicitor to come on to the record, Lawcover would have been acting in breach of the duty of good faith by filing a notice of discontinuance.

3. Thirdly, there was no evidence or coherent argument advanced that Mr Muriniti, L C Muriniti & Associates and Mr Newell will suffer any relevant prejudice if orders are made joining Lawcover to the applications for leave to appeal and dismissing the summonses. The position is clear; Mr Muriniti, L C Muriniti & Associates and Mr Newell cannot progress the appeal proceedings and Lawcover has made abundantly clear it has no intention of progressing the appeal proceedings.

37. The saga of litigation orchestrated by Mr Muriniti, L C Muriniti & Associates and Mr Newell must one day come to an end. Pursuant to UCPR r 12.7, the Court has power to dismiss proceedings if the moving party does not prosecute the proceedings with due dispatch. This rule applies to proceedings in this Court pursuant to r 51.1(3). Some indication as to what is meant by due dispatch can be obtained from considering the standard rules in relation to the filing of documents. First, and relevantly in this Court, a period of three months is permitted for the filing of a notice of appeal where notice of intention to appeal is given within 28 days of the orders from which it is proposed to appeal. Generally, under r 12.8 and quite apart from non‑compliance with the timetable for appellate proceedings set out in Pt 51 of the UCPR, there is a power conferred to dismiss or stay proceedings when no party has taken any step for five months. This indicates the extent of the delay which will not ordinarily be tolerated. The Court must also be mindful that any order it makes, and any direction it gives, must conform to the requirement that proceedings be dispatched in a just, quick and cheap manner pursuant to Pt 6, Div 1 of the Civil Procedure Act. [1]

    1. See Chaina v The Presbyterian Church (NSW) Property Trust [2016] NSWCA 160 at [10]-[12] (Basten JA).

38. The present applications for leave to appeal by Mr Muriniti, L C Muriniti & Associates and Mr Newell can never be progressed. In proceedings in the Supreme Court which have been litigated all the way to the High Court, Mr Muriniti, L C Muriniti & Associates and Mr Newell have been found to have consented to Lawcover’s decision not to pursue an appeal from orders made in Young v King (No 11). It has also been conclusively determined that Mr Muriniti, L C Muriniti & Associates and Mr Newell should be permanently restrained from taking any steps to conduct or prosecute any appeal from the orders made in Young v King (No 11), including proceedings [2017/109337] and [2017/201727] in this Court. As I have said, the submission that there is any relevant difference between the conclusive determination that Lawcover was entitled not to appeal from Young v King(No 11) and a determination that Lawcover was entitled to bring an end to an appeal commenced in breach of contract did not identify any meaningful difference.

39. It is obviously prejudicial to the respondents to the applications for leave to appeal that the proceedings be allowed to continue to moulder in the Court’s lists with no prospect that they will ever be determined. The delays and costs already involved in this case are unacceptable and should be brought to an end. I am satisfied that, unless this Court intervenes, Mr Muriniti, L C Muriniti & Associates and Mr Newell will continue to frustrate Lawcover’s reasonable and proper attempts to bring these applications for leave to appeal to an end.

40. As to Lawcover’s application for joinder as a respondent to these proceedings, it has conclusively been determined that Lawcover has a sufficient interest in the proceedings. That interest was a sufficient basis to conclude that Lawcover is a proper party as a respondent to the applications for leave to appeal.

41. For these reasons I joined in the orders made on 16 September 2019.

42. Before leaving this case, there is one final issue. A good deal of the conduct of Mr Muriniti, L C Muriniti & Associates and Mr Newell gives me cause for concern. In particular, the evidence before the Court, on one view, appears to indicate that over a number of years in relation to this litigation:

1. Mr Muriniti, L C Muriniti & Associates and Mr Newell have each been found by Sheahan J to have behaved incompetently, unprofessionally, inappropriately and against the true interests of their client. Each has embarked on futile litigious activities and incurred considerable unnecessary costs liabilities;

2. Mr Muriniti, L C Muriniti & Associates and Mr Newell have commenced appeal proceedings from personal costs orders in breach of contract and have frustrated Lawcover’s reasonable and proper attempts to bring those proceedings to an end by, inter alia, making serious allegations amounting to fraud with no apparent proper basis; and

3. Mr Muriniti, L C Muriniti & Associates and Mr Newell have sought needlessly to prolong these proceedings on the basis of even more outlandish allegations made in correspondence and repeated in this Court with no apparent basis.

43. In both cases the Registrar of the Court of Appeal should be directed to forward the papers in these proceedings to the Legal Services Commissioner with a recommendation that he investigate whether the conduct of Mr Muriniti, L C Muriniti & Associates and/or Mr Newell disclosed therein amounts to either unsatisfactory professional conduct or professional misconduct.

44. McCALLUM JA: The reasons stated by Payne JA reflect my reasons for joining in the orders made on 16 September 2019. Further, I agree with Payne JA as to the referral of the papers to the Legal Services Commissioner.

45. SIMPSON AJA: The reasons given by Payne JA reflect the reasons I joined in the orders of 16 September 2019. Further, I agree with Payne JA as to the referral of the papers to the Legal Services Commissioner.

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Endnote

Decision last updated: 02 October 2019