Sedrak v Starr (No 2)

[2010] NSWCA 298

New South Wales

Court of Appeal

CITATION:	Sedrak v Starr (No 2) [2010] NSWCA 298
HEARING DATE(S):	On the papers
JUDGMENT DATE:	10 November 2010
JUDGMENT OF:	Beazley JA at 1; Campbell JA at 1; Sackville AJA at 1
DECISION:	1. Disallow as between Mr Santisi, junior counsel for the appellant, and the appellant the costs of preparing: (a) the Amended Appellant’s Written Submissions dated 25 May 2010, and any earlier version thereof; (b) the appellant’s Statement as to Challenges to Findings and Findings Contended For dated 25 May 2010 and any earlier versions thereof; and (c) the appellant’s Written Submissions in Reply dated 30 August 2010 and any earlier version thereof. 2. Disallow as between JN Legal, solicitors for the appellant and Mr Santisi, junior counsel for the appellant, on the one hand, and the appellant on the other, the costs of preparing any more than one version of the Blue and Black appeal books, being a version containing no documents other than those required to enable the Court to address the arguments ultimately put by senior counsel on behalf of the appellant.
LEGISLATION CITED:	Civil Procedure Act 2005
CATEGORY:	Consequential orders
CASES CITED:	Bull v Lee (No 2) [2009] NSWCA 215
FILE NUMBER(S):	CA 2009/298578
COUNSEL:	Mr R Harper SC with Mr F Santisi for the Appellant Mr J Gormly QC with Mr D Shoebridge for the Respondent
SOLICITORS:	JN Legal Solicitors & Attorneys (Appellant) Woods & Day Solicitors (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 5407/2008
LOWER COURT JUDICIAL OFFICER:	Gzell J
LOWER COURT DATE OF DECISION:	18 September 2009; 5 November 2009; 6 November 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Magred Sedrak v Gavin Mark Starr [2009] NSWSC 996; Magred Sedrak v Gavin Mark Starr [2009] NSWSC 1178; Magred Sedrak v Gavin Mark Starr [2009] NSWSC 1193

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CA 2009/298578

BEAZLEY JA
CAMPBELL JA
SACKVILLE AJA

10 November 2010

SEDRAK v STARR (No 2)

Judgment

: At the hearing of this matter on 1 September 2010, the Court directed Mr F Santisi, junior counsel for the appellant, and his instructing solicitor, Mr J Nicopolous of JN Legal, to file any affidavits and written submissions upon which each wished to rely in response to the following matters:

(1) Whether costs have been incurred by the appellant in the circumstances identified in s 99(1)(a) or (b) of the Civil Procedure Act 2005 (“ CP Act ”) and, in particular, whether such costs have been incurred by reason of the preparation by junior counsel or the solicitors representing the appellant of:

the appellant’s amended written submissions, dated 25 May 2010 (or any earlier version thereof);
the appellant’s statement as to challenges to findings and findings contended for, dated 25 May 2010 (or any earlier version thereof);
the appellant’s written submissions in reply dated 30 August 2010; and
the preparation of several versions of Blue and Black Appeal books.


(2) If so, whether orders should be made pursuant to s 99(2) and (5) of the CP Act and, if so, which orders should be made.

(3) Whether, in light of:

the apparent lack of legal skill and professional competence suggested by the written submissions prepared by Mr Santisi, junior counsel for the appellant in the present appeal;
the circumstances disclosed in the judgment of Gzell J in Sedrak v Starr [2009] NSWSC 996;
the preparation of several versions of Blue and Black Appeal books; and
the circumstances disclosed in Bull v Lee (No 2) [2009] NSWCA 36
the Registrar of the Court should be asked to refer the conduct of Mr Santisi and/or his instructing solicitor in relation to these matters to the Legal Services Commissioner to consider whether any action should be taken against Mr Santisi and/or his instructing solicitor.

2 Section 99 of the CP Act relevantly provides as follows:

“(1) This section applies if it appears to the court that costs have been incurred:

(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or
(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.

(2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following:

(a) it may, by order, disallow the whole or any part of the costs in the proceedings:
(i) in the case of a barrister, as between the barrister and the instructing solicitor, or as between the barrister and the client, as the case requires, or
(ii) in the case of a solicitor, as between the solicitor and the client,


…

(5) The court may give ancillary directions to give full effect to an order under this section, including directions to a legal practitioner to provide a bill of costs in assessable form:

(a) to the court, or

(b) to a party to the proceedings, or

(c) in the case of a barrister, to the instructing solicitor or client, or both, or

(d) in the case of a solicitor, to the client.”

3 In Sedrak v Starr [2009] NSWSC 996, Gzell J revoked leave previously granted to the plaintiff (the appellant in this Court) to adduce further evidence. His Honour recorded in the judgment directions that had previously been made and the manner in which the plaintiff had either not complied with directions or gone beyond them. His Honour also recorded that the solicitor for the plaintiff had apologised for certain defaults in compliance with directions.

4 In Bull v Lee (No 2) [2009] NSWCA 215, the Court made observations critical of the conduct of Mr Santisi, counsel for the respondent in that case.

5 In response to the Court’s directions in the present case, Mr Santisi filed two affidavits, dated 21 and 22 September 2010 respectively. In those affidavits, Mr Santisi apologised for certain deficiencies in the presentation of the appellant’s case and sought to explain others. Mr Santisi disclaimed responsibility for the duplication of appeal books. He also indicated that he had not charged the appellant for some of the work he had performed and would not do so if the Court so directed. The affidavits attempted to address issues that had been raised by the Court.

6 Mr Nicopolous filed an affidavit dated 22 September 2010. He attempted to explain certain difficulties he had experienced in preparing the case, but took “full responsibility” for the failure to present to the Court one set of complete and accurate appeal books.

7 The Court has given careful consideration to the submissions made by Mr Santisi and Mr Nicopolous. However, it considers that the following orders should be made pursuant to s 99(1) and (2) of the CP Act:

1. Disallow as between Mr Santisi, junior counsel for the appellant, and the appellant the costs of preparing:

(a) the Amended Appellant’s Written Submissions dated 25 May 2010, and any earlier version thereof;
(b) the appellant’s Statement as to Challenges to Findings and Findings Contended For dated 25 May 2010 and any earlier versions thereof; and
(c) the appellant’s Written Submissions in Reply dated 30 August 2010 and any earlier version thereof.

2. Disallow as between JN Legal, solicitors for the appellant and Mr Santisi, junior counsel for the appellant, on the one hand, and the appellant on the other, the costs of preparing any more than one version of the Blue and Black appeal books, being a version containing no documents other than those required to enable the Court to address the arguments ultimately put by senior counsel on behalf of the appellant.

8 The Court will ask the Registrar to refer the conduct of Mr Santisi in relation to the matters identified earlier, other than the preparation of several versions of the Blue and Black Appeal books, to the Legal Services Commissioner to determine whether any action should be taken against him.

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