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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sanchez-Sidiropoulos v Canavan

Details

AGLC: Sanchez-Sidiropoulos v Canavan [2016] NSWCA 196
Case: [2016] NSWCA 196
Decision Date: 01 August 2016

CaseChat Overview and Summary

In *Sanchez-Sidiropoulos v Canavan*, the applicant, Mr Sanchez-Sidiropoulos, sought a pro bono referral from the respondent, Mr Canavan, who was counsel formerly retained in the matter. The application was made informally and without supporting evidence.

The primary legal issue before the Court was whether to grant the applicant's informal request for a pro bono referral. This involved considering the appropriate procedure for such applications and the evidentiary requirements necessary to support them.

Leeming JA refused the application, noting that it was made informally and without evidence. The Court implicitly applied principles of procedural fairness and the need for proper evidence to support applications made to the court, particularly those involving the allocation of legal resources. The Court did not elaborate on the specific evidentiary deficiencies beyond stating the application was made "informally and without evidence."

The application was refused, with costs ordered in favour of the respondent.

Orders

Orders of the court

Application be refused, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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