Nicholas Francis John Bolton v John Ljubomir Atanaskovic and Lawson Andrew Jepps Traiding as Atanaskovic Hartnell

[2024] NSWSC 298

Supreme Court

New South Wales

Medium Neutral Citation:

Nicholas Francis John Bolton v John Ljubomir Atanaskovic and Lawson Andrew Jepps Traiding as Atanaskovic Hartnell [2024] NSWSC 298

Hearing dates:

7 & 8 March 2024

Date of orders:

8 March 2024

Decision date:

08 March 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Under r 7.29(2) UCPR, I grant leave to Mr Paul Dalligan of Blue Rock Law to file and serve a notice of intention of ceasing to act within five days of the date hereof.

(2) Vacate the hearing date of 13 March 2024.

(3) Direct the plaintiff to file and serve the evidence upon which he relies and his written submissions on or before 8 April 2024, in which regard time is to be treated of the essence.

(3) Adjourn the defendant’s motion of 1 March 2024 as part heard before me to 9:30 AM on 12 April 2024.

(4) List the proceedings for directions before me on the same date at the same time.

(5) The plaintiff is to pay the defendant’s costs thrown away by reason of the adjournment and of 7 and 8 March 2024.

(6) The defendant to have liberty to apply in respect of an application for a direction that the plaintiff pay the hearing allocation fee forthwith.

Catchwords:

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – want of due dispatch – delay occasioned by the plaintiff’s repeated non-compliance with case management court orders – delay attributable to (i) plaintiff’s failure to put his solicitor in funds and (ii) solicitor’s pressing personal circumstances – plaintiff desirous of further progressing the proceedings – inappropriate to dismiss proceedings.

CIVIL PROCEDURE – occupations – legal practitioners – application for leave to file notice of intention of ceasing to act – relationship between plaintiff and solicitor irretrievably broken down – cause shown – leave granted.

Legislation Cited:

Legal Profession Uniform Law 2014 (NSW), s 89

Uniform Civil Procedure Rules 2005 (NSW), rr 7.29(2), 12.7

Category:

Procedural rulings

Parties:

Nicholas Francis Bolton (Plaintiff)
John Ljubomir Atanaskovic and
Lawson Andrew Jepps trading as
Atanaskovic Hartnell (First Defendant)
Australian Style Holdings Pty Ltd (Second Defendant)

Representation:

Counsel:
No appearance (Plaintiff)
D Robertson (Defendant)
S Lipp (for Mr Dalligan)

Solicitors:
Blue Rock Law (Plaintiff) (Seeking leave to file Notice of Intention of Ceasing to Act)
Atanaskovic Hartnell (Defendant)

File Number(s):

2023/333738

extempore JUDGMENT (revised)

1. These proceedings were commenced by summons filed on 20 October 2023. The proceedings are an appeal under s 89 Legal Profession Uniform Law 2014 (NSW) challenging a certificate of determination made by a review panel on the defendant’s application for review of a decision of a costs assessor, which was favourable to the plaintiff, Mr Bolton. The proceedings were commenced late. Although it is not entirely clear, it seems to me - as Mr Robertson of counsel, who appears for the defendant has submitted - that probably the relevant act initiating the running of time for the purpose of the appeal was the issue of the certificate of determination by the Manager, Costs Assessment (“MCA”) following the review panel’s determination. And that is about, on Mr Robertson’s calculations, which seem correct, 10 June 2023. Accordingly, the appeal was commenced a little more than four months out of time, and the plaintiff has filed an affidavit seeking to explain that relatively long delay. The amount involved in the cost certificate is somewhat in excess of $300,000.

2. Having been case managed by the Registrar, the appeal is listed for hearing next Wednesday, 13 March 2024 before her Honour Acting Justice Schmidt, with an estimate of one day. I have before me two applications which were part heard by me yesterday. In the end they have proceeded more or less concurrently.

3. The first application is the defendant’s notice of motion, filed on 1 March 2024, that the proceedings be dismissed for want of due despatch under r 12.7 Uniform Civil Procedure Rules 2005 (NSW). To summarise the position, the plaintiff has failed to file either the evidence upon which he seeks to rely or his written submissions within the time limited by case management orders made by the registrar. His evidence was initially due on 15 December 2023 and the written submissions on 15 February 2024. By agreement, there had been a short extension of time allowed for the evidence until 22 December 2023, the last day before the commencement of the traditional, legal-professional long vacation in New South Wales, and Mr Dalligan a solicitor who has acted for the plaintiff since about 13 December 2023 had requested further extensions, but no evidence nor submissions have been filed. As I remarked at the end of the hearing yesterday, it is obvious the matter cannot proceed before Schmidt AJ next Wednesday.

4. The second application I have before me is an application made orally yesterday by Mr Lipp of counsel, who appears for Mr Dalligan, for Mr Dalligan to have leave to cease to act in accordance with r 7.29(2) UCPR. That application has now been formalised in a notice of motion that I directed be filed yesterday. Under that rule, when a hearing has been allocated, a solicitor who wishes to cease to act is required to give 28 days’ notice. It seems that the first notice given by Mr Dalligan was on 6 March 2024 at 3:34 PM when he informed the plaintiff via email that he was seeking leave to withdraw.

5. That application is made on two bases. One is, despite a number of requests to put in funds to conduct the proceedings appropriately on behalf of the plaintiff, the plaintiff has not responded positively to that request, as to which see the summary contained in Exhibit “A” prepared by Mr Lipp at my request. But in some respects more significant, in his affidavit of 7 March 2024, Mr Dalligan also expressed the view that his relationship with the plaintiff had broken down irretrievably. In that regard, his second affidavit filed in Court today, simply detailing correspondence by email and text message between him and the plaintiff over the last couple of days, satisfies me, as I remarked during the course of the dialogue with counsel, that their relationship has become so fractious such that it is, in my judgment, inconsistent with the level of confidence necessary to subsist between solicitor and client for the solicitor to effectively discharge his professional duty both to the client and to the Court in the exercise of his profession, acting on behalf of the client in litigation.

6. Generally speaking, leave to withdraw under r 7.29, will be given to a solicitor for cause. It seems to me that the breakdown in the relationship that I have spoken of, coupled with the failure of the plaintiff to properly instruct Mr Dalligan by putting him in the requested funds necessary for the conduct of the litigation, do constitute cause and, in due course, I will pronounce an order granting leave for him to withdraw.

7. Mr Dalligan was retained on or about 13 December 2023 after previously retained solicitors had ceased to act. I am unsure of why they ceased to act, but I think it relevant to record that, effectively, Mr Dalligan is the fourth solicitor to have acted for Mr Bolton in this matter. Obviously, the defendant law practice acted in litigation in which Mr Bolton was involved, even if only indirectly as the guiding mind of corporate clients. When the relationship with that law practice broke down, the evidence before me indicates that Gadens were retained to act for him in relation to the costs dispute and in relation to the original costs assessment on which he was successful. His relationship with Gadens seems to have broken down because, after the commencement of the costs review process – at about the time the determination of the review panel was issued – Gadens ceased to act. That date may not be entirely accurate. The solicitors who were acting when the summons was filed were Project Lawyers, and of course now Mr Dalligan’s firm is acting.

8. The evidence satisfies me that in December 2023 Mr Bolton put Mr Dalligan in sufficient funds to make an application for a stay of the judgment of the District Court that was entered on 19 May 2023, giving effect to the costs certificate. I accept from his affidavit of today that those funds were fully expended in the pursuit of that application. I am satisfied from Exhibit “A” that he has requested not only the funds necessary to retain and brief counsel for the proceedings, but also, as it happens, the hearing allocation fee, which has not been paid in response to what appears to be three requests by the registry in the last few weeks.

9. Now, Mr Robertson did make the submission yesterday that perhaps Mr Dalligan was a little late in requesting those fees given the timetable. However that may be, looking at whether he should be permitted to withdraw, he did seek to obtain the relevant funds, particularly given the circumstance that the plaintiff was not happy to brief the junior counsel at the New South Wales bar, whom Mr Dalligan had identified as a suitable advocate for the case, but required one of his Majesty’s counsel of the Victorian bar to appear in the case.

10. So far as the attitude of the plaintiff is concerned, over the last few days it seems to me that his attitude has varied, but initially he seemed to suggest that the funds provided in December 2023 were intended to cover the whole of the proceedings, which, regrettably, could not possibly be so, notwithstanding most people would regard $20,000 as a lot of money. And as Mr Robertson pointed out to me, the plaintiff is a very experienced litigant who would have a good idea of how expensive it is to conduct civil litigation. But then the plaintiff seemed to put things back on Mr Dalligan as late as 3:37 PM yesterday by saying it was his problem that the evidence and submissions had not been filed. He maintained that Mr Dalligan had funds to do the submissions but just had not done them and made a statement to the effect it was up to Mr Dalligan to sort it out, presumably without the payment of further fees or with the benefit of any money on account.

11. The plaintiff in his last email of 1:29 PM today, which was tendered as Exhibit “B” by Mr Lipp took a somewhat different position again, asserting that he was prepared to pay for Mr Broadfoot KC to undertake the necessary work to bring the matter up to speed. I made it clear yesterday that the plaintiff should be told that the matter would resume at 2 PM today and that he would be provided with the details of the AVL link so that he could attend remotely from Melbourne for the hearing, but in various pieces of correspondence and in various ways he has made it quite clear that he would not be appearing. First, he said he was in transit and had flights and the like, then he, in his aforementioned last email, said to Mr Dalligan, “Confirming you are representing me at this hearing as I am unavailable and you are on record.” “Confirming” is an interesting use of the language given that Mr Dalligan had made it clear at all times that he was not appearing for the plaintiff but was seeking leave to withdraw. It is telling, I think, that Mr Bolton has not paid the hearing allocation fee, which is a comparatively modest amount of around $2,500, yet here purports to “confirm” that he is ready, willing and able to pay 35 odd thousand dollars to put Mr Dalligan in funds to retain Mr Broadfoot KC, although he has failed to respond to the request that he does so over the last three weeks.

12. I am satisfied that Mr Dalligan, as I have said, has shown cause why he should be permitted to withdraw from the proceedings.

13. I return to the defendant’s application for dismissal for want of due despatch. From my review of the summons, it is clear that the matter has a degree of complexity to it. Fourteen various grounds are specified as grounds of appeal. Each ground is elaborate in terms of the articulation of the particular matter relied upon. One or two are expressed in two or three lines. Many of them are expressed in a longish paragraph. It is clear that some of the matters are propounded as involving questions of law. Others clearly involve some question of fact that would require evidence to be substantiated. However, it is clearly not a straightforward appeal. There is no doubt that, given the lateness of the summons and the complexity of the matter, as well as the amount involved and the time during which the lawyers have been out of pocket, the defendant law practice has insisted upon strict adherence to the timetable, although, as I have said, following the change of solicitor in December 2023, a short extension of about a week was agreed to for the filing of the evidence on behalf of the plaintiff. The defendant also emphasises the consideration that not only has the plaintiff apparently ignored Mr Dalligan’s request for payment but has ignored requests by the Court for the payment of the hearing allocation fee.

14. Mr Robertson reminded me a dismissal for want of prosecution does not create any res judicata. Subject to payment of the costs of these proceedings, the plaintiff would be entitled to bring a fresh application together with a fresh extension of time for bringing the costs appeal. At least in legal theory that is so. Given the long delay since the MCA issued the certificate, it may be that the prospect of an extension of time to appeal would be much poorer then.

15. It is quite clear that the plaintiff has not complied with the timetable. It is apparent that the plaintiff has not filed the evidence within the timetable despite an indication that the evidence would be filed even if the defendant did not agree to any further extensions. I do have to bear in mind that the evidence before me does indicate that Mr Dalligan was candid in disclosing to his opposite number, Mr Jepps, that he had some personal and professional matters of a very pressing nature, which he described for the benefit of Mr Jepps and I need not set out in this judgment, which had contributed to the delay, doubtless in both asking the plaintiff to put him necessary funds and in performing the work necessary to comply with the timetable. Despite what I have said about the plaintiff’s personal conduct, and his part in the delay which has been significant by changing solicitors and, indeed, by failing to provide the funds necessary for the conduct of the litigation, he is not solely responsible for the delay that has occurred in this case. And I will repeat Mr Dalligan has been very frank, as is appropriate, about his professional and personal difficulties which have contributed to that delay.

16. It remains that even today, on 8 March, neither evidence nor submissions have been forthcoming. I repeat what I said at the outset. The matter cannot proceed next week. It will have to be adjourned.

17. It is also apparent to me from the plaintiff’s position that he is desirous of going on with the matter and that he claims to be in a position to provide the funds necessary to brief the counsel of his choice for the preparation and presentation of the appeal. I appreciate the prejudice suffered by the defendant, not only in terms of the delay in the resolution of the litigation, in terms of being kept out of pocket for what it undoubtedly regards as their due recompense for professional work faithfully performed. And it is a not insignificant matter. However, I have come to the conclusion that notwithstanding the need for an adjournment, it is not appropriate for me to exercise my discretion to dismiss the proceedings at this time.

18. Rule 12.7 is in the following terms: “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”. The other orders that I think fit in this circumstance are to adjourn the hearing of the matter from Wednesday to fix a final date by which the evidence and submissions should both be filed and to treat the defendant’s application as part heard before me. If there is a further default by the plaintiff by the new date which I fix, then it would be my intention to accede to the application to dismiss the proceedings.

19. My orders are:

1. Under r 7.29(2) UCPR, I grant leave to Mr Paul Dalligan of Blue Rock Law to file and serve a notice of intention of ceasing to act within five days of the date hereof;

2. Vacate the hearing date of 13 March 2024;

3. Direct the plaintiff to file and serve the evidence upon which he relies and his written submissions on or before 8 April 2024, in which regard time is to be treated of the essence;

4. Adjourn the defendant’s motion of 1 March 2024 as part heard before me to 9:30 AM on 12 April 2024;

5. List the proceedings for directions before me on the same date at the same time;

6. The plaintiff is to pay the defendant’s costs thrown away by reason of the adjournment and of 7 and 8 March 2024.

7. The defendant to have liberty to apply in respect of an application for a direction that the plaintiff pay the hearing allocation fee forthwith.

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Decision last updated: 22 March 2024