Nelson v Fazio
[2024] WASC 97
•27 MARCH 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: NELSON -v- FAZIO [2024] WASC 97
CORAM: HOWARD J
HEARD: ON THE PAPERS
DELIVERED : 27 MARCH 2024
FILE NO/S: CIV 1304 of 2023
BETWEEN: PETER STANLEY NELSON
Plaintiff
AND
GIACOMO FAZIO
First Defendant
IAN TORRINGTON BLATCHFORD in his capacity as administrator of the estate of PETER MOORCRAFT
Second Defendant
Catchwords:
Procedure - Form 5AA Notice of change of legal representation filed - When the party in person files the Notice rather than the solicitors on the record - When the alleged new solicitors did not agree to come on the record - Whether the Notice is considered an irregularity pursuant to O 2 r 1(2) of the Rules of the Supreme Court1971 - Notice set aside - Previous solicitors remain on the record for the defendant
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Form 5AA filed on 1 March 2024 be set aside
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | In Person |
| First Defendant | : | Springdale Legal |
| Second Defendant | : | Blatchfords |
Case(s) referred to in decision(s):
HOWARD J:
On 1 March 2024, the first defendant, Mr Fazio, filed a Form 5AA Notice which purported to give notice of a change in his legal representation from Springdale Legal in Albany to Dentons Australia in Perth (1 March 2024 Notice).
I have today made Orders setting aside the 1 March 2024 Notice. These short reasons explain why I did so.
This matter is one of four somewhat interrelated matters[1] which I am managing.
[1] Nelson v Moorcraft CIV 2266 of 2015; Nelson v Thompson CIV 2404 of 2015 and Moorcroft v Fazio CIV 1781 of 2023.
On 28 February 2024, I made Orders listing the matter for a four day trial commencing on 13 August 2024 and I also made Orders sending the matter to mediation.
Springdale Legal was acting for Mr Fazio in, amongst others, these proceedings and was on the record for him.
On 12 March 2024, the plaintiff, who is self-represented, communicated with the Associate to the Principal Registrar seeking a mediation to be listed.
Mr Nelson's communication suggested that the dates he provided were the result of conferral with the 'parties'.
In correspondence dated 22 March 2024, the Registrar's Associate wrote to the parties, including Mr Nelson, and to Dentons seeking further available dates for the mediation.
On 22 March 2024, Dentons wrote tersely to the Registrar's Associate and indicated that they had not been retained by Mr Fazio and had not come on the record for Mr Fazio.
As a result of that correspondence, the Court became aware that the 1 March 2024 Notice was irregular (and appears to have been accepted for filing by oversight). The matter was referred to me by the Registrar for consideration as to the appropriate orders to be made.
There are two irregularities in my view. They are:
1.Springdale Legal or Dentons Australia ought to have given the 1 March 2024 Notice, rather than Mr Fazio; and
2.the 1 March 2024 Notice does not reflect the true position in that Dentons has not been retained by Mr Fazio and did not agree to come onto the Court record.
It is unclear why this has occurred. However, I note that Mr Hornsey (of Springdale Legal) told the Court on 28 February 2024 that 'my client will be submitting the appropriate papers to represent himself after today': ts 2. It is unclear whether that proposed course of action was the subject of any advice from Mr Hornsey.
Pursuant to the express terms of O 2 r 1(1), the 1 March 2024 Notice is not a nullity but is an irregularity.
In my view, the Court's record ought to be corrected by setting aside the 1 March 2024 Notice pursuant to O 2 r 1(2).
In my view, the Court has power to do so as part of regulating its own processes and ensuring its record is accurate.
I do not consider that an application needs to be made under O 2 r 2 before the Court can act. Rather, the Court can do so of its own motion.
The effect of that will be that the appearance entered for Mr Fazio by Springdale Legal on 2 May 2023 remains and continues. That, in my view, follows from O 8 r 2(1).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
27 MARCH 2024
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