Papotto v The State of Western Australia

[2005] WASCA 100

PAPOTTO -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 100

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASCA 100
Court:	THE COURT OF APPEAL (WA)
Case No:	CCA:196/2004	Heard:	24 MAY 2005
Coram:	ROBERTS-SMITH JA	Delivered:	24/05/05
No of pages:	4	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
PDF Version

Parties:	SALVATORE PAPOTTO THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Practice and procedure Application for leave to appeal against conviction Application by solicitor for leave to remove himself from record Prejudice to applicant client Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PAPOTTO -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 100 CORAM : ROBERTS-SMITH JA HEARD : 24 MAY 2005 DELIVERED : 24 MAY 2005 FILE NO/S : CCA 196 of 2004 BETWEEN : SALVATORE PAPOTTO

Applicant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : H H JACKSON DCJ

File No : IND 1415 of 2002

Catchwords:

Criminal law - Practice and procedure - Application for leave to appeal against conviction - Application by solicitor for leave to remove himself from record - Prejudice to applicant client - turns on own facts

(Page 2)

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant : Mr H A Atlas
Respondent : No appearance

Solicitors:

Applicant : Atlas Legal
Respondent : No appearance

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil


(Page 3)

1 ROBERTS-SMITH JA: This is an application by Mr Hasan Atlas of Atlas Legal on his own behalf and that of his firm who are Mr Papotto's solicitors on the matters appealed in a criminal appeal before this court. For reasons which are evident from the transcript of the hearing before the Court of Appeal on 5 May this year and from the applicant's affidavit dated 18 May 2005 filed in support of this application, which is not necessary for me now to repeat, the solicitor applicant seeks leave to withdraw from the record as the legal representative of Mr Papotto. Mr Papotto opposes the application.

2 It is sufficient to note as to the facts that when the appeal came on for hearing on 5 May last, it was evident that the appeal books, of which there were some 21 volumes, were quite unsatisfactory, as a result of which the hearing of the appeal was unable to proceed.

3 What is now required is for appeal books to be prepared anew before Mr Papotto's appeal can be re-listed for hearing. Mr Papotto opposes the application, understandably on the basis that the present situation is no fault of his but it leaves him, as he puts it, "in limbo" because, again as he expresses it, his solicitor has not completed the job he was paid to do.

4 Mr Papotto says that he is now confronting additional cost but, more importantly, further delay of potentially some months before new appeal books can be prepared while he in the meantime continues to remain in prison serving his sentence of imprisonment. His proposition is that the situation should not be someone else's problem to fix up but Mr Atlas should be refused leave to withdraw so that he is required to, again as Mr Papotto puts it, "fix the problem up" so that the appeal can be got back before this Court as soon as possible.

5 It must at once be said that Mr Papotto's position is invidious, unenviable and not of his making to any extent at all. The prejudice to which he refers on the face of it is real prejudice. The question, it seems to me, is whether or not that prejudice can be overcome or at least reduced by refusing the application, or whether the position would be worse overall were the application to be refused.

6 It is apparent from all that has gone before and particularly from the content of Mr Atlas' affidavit that there is a very serious problem and has been a very serious problem between himself, Mr Papotto and counsel, Mr Richardson. I express no particular view about that at the moment for reasons which will shortly become apparent.

(Page 4)

7 It is clear, however, that the solicitor-client relationship has broken down completely and that to require the solicitor to continue would put him and his firm in an untenable and probably conflicting situation.

8 My view is that there will inevitably be delay in progressing this appeal as a result of what has already occurred and the time necessary to rectify now will be much the same, whether Mr Atlas continues as the solicitor or some other solicitor is instructed. Another solicitor would be able to prepare the appeal books, as well as, if not more satisfactorily than, Mr Atlas and his firm. It might hopefully at least be expected that the relationship between another instructing solicitor and Mr Richardson would not be as detrimental to Mr Papotto's position as it presently appears to be between him and Mr Atlas.

9 The question of costs is, as Mr Papotto indicated, not the main consideration for him and I accept that but Mr Atlas has indicated he is prepared not to charge for and to return the costs associated with the preparation of the appeal books to date. Whether that will prove to be sufficient or whether more is required is I think a matter between Mr Atlas and Mr Papotto and if that is unresolved, there are no doubt other avenues through which it may be.

10 Under the circumstances, it seems to me that the only appropriate course, giving primacy to the best interests of Mr Papotto which I think ought to be done, is to grant the application and give Mr Atlas and his firm leave to withdraw from the record. I will accordingly make that order. That is all I need say about the application itself.

11 From what I have said, however, it will be apparent that the material - in particular as reflected in the transcript of 5 May and Mr Atlas' affidavit, together with its annexures - does raise matters which are potentially of real concern. Given that and appreciating that it is not the function of this Court in dealing with Mr Papotto's appeal to in any way seek to resolve those matters, the members of this Court have come to the conclusion that the appropriate course is to refer the materials to the Legal Practitioners Complaints Committee and that direction will accordingly also be given.