Sanchez-Sidiropoulos v Canavan

[2016] NSWCA 196

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Sanchez-Sidiropoulos v Canavan [2016] NSWCA 196
Hearing dates:	01 August 2016
Decision date:	01 August 2016
Before:	Leeming JA
Decision:	Application be refused, with costs.
Catchwords:	PRACTICE – application for pro bono referral – return of brief by counsel formerly retained – application made informally and without evidence – application refused
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 7.36
Cases Cited:	Bar-Mordecai v Rotman [2000] NSWCA 123
Category:	Procedural and other rulings
Parties:	Jade Sanchez-Sidiropoulos (Appellant) Brother Kelvin Canavan (Respondent)
Representation:	Counsel: J Capsanis (Solicitor) (Appellant) K Lawrence (Solicitor) (Respondent)   Solicitors: HP Capsanis & Co Lawyers (Appellant) Makinson d’Apice Lawyers (Respondent)
File Number(s):	2015/260246
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 1139 Date of Decision: 14 August 2015 Before: Schmidt J File Number(s): 2009/297447

Ex Tempore Judgment

1. HIS HONOUR: Referred to me from the Registrar is Mr Capsanis’ oral application for pro bono referral to a barrister pursuant to UCPR r 7.36. The essential facts are these. There was a seven day trial before a judge sitting in the Common Law Division in this Court. The orders made were that Ms Sanchez-Sidiropoulos’ claim be dismissed with costs. An appeal has been filed and written submissions prepared by counsel who appeared for the plaintiff at trial were filed (albeit belatedly) on 2 May 2016 together with a chronology. The respondent’s submissions were filed on 20 June 2016. The matter is set down for hearing in nine days’ time, on Monday 15 August 2016. Also set down for hearing on that day is the respondent’s motion seeking to dismiss the appeal for want of competency.

2. The oral application before me is attended neither by any formal process of the Court, nor by any evidence in support. I have listened for some 15 minutes to Mr Capsanis, who assured me at the outset that his application was not based upon any misconduct or other breach of duty by any of the lawyers who previously have been retained by him in relation to this appeal. Even so, having raised with him what struck me as the most important threshold consideration, namely, why it was in circumstances where submissions have been filed by counsel then appearing, the application had been made as late as it was, I reached the view that it was inappropriate to proceed in the informal manner in which we had. It may be that I have in part misunderstood what Mr Capsanis has said, but the gravamen is that I understand that counsel formally retained returned the brief some three weeks ago.

3. I do not think it is appropriate in these circumstances, bearing in mind the possibility, which I regard as real, that there be in the future some application to vacate the hearing date (something which would seem to be in the interests of neither party), to accede to the oral application today, unsupported as it is by evidence. The essential difficulty is that what is sought is an extremely urgently expedited referral to some barrister who is prepared to undertake the work necessary to run this appeal in nine working days’ time. I am not saying that would be impossible, but it is a substantial burden, and I do not think it is right to seek to impose that upon the good offices of those barristers who provide their services to the pro bono panel without my having been satisfied that there was sound justification for the lateness of the application.

4. It is rare for a counsel to return a brief to appear on appeal having drafted written submissions. Why that has occurred in this appeal is highly relevant. For example, if counsel formed the view that the appeal was too weak to be capable of being argued on appeal, then that is a matter which would be highly relevant to the discretion to refer the matter for pro bono assistance. Alternatively, if counsel returned the brief for some other reason, then that reason is also highly relevant to the discretion. Why the brief was returned is presently unclear to me. I formed the view, after hearing from Mr Capsanis at some length, that the explanation, which I regard as central to the exercise of discretion, should not be permitted to established informally from the Bar table. (This paragraph was not said by me when I delivered reasons on 1 August, but accords with the principles stated in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194].)

5. Having heard, as I have said, from Mr Capsanis from the Bar table, I am not persuaded from what he has said (I emphasise I may have misunderstood him in part and he has told me that there are many things that he has not said) that that basis should be established other than in a way supported by evidence in admissible form.

6. To be clear, I do not regard my refusal of the oral application today in the circumstances set out above as precluding another application, although the reader of these reasons will appreciate the difficulties given the timing attending such application.

7. The order that I propose to make is that the oral application be refused.

[Discussion regarding costs]

8. The order that I make is that the application be refused, with costs.

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