Shalhoub v Law Society of NSW (No. 2)

[2016] NSWSC 1507

Supreme Court

New South Wales

Medium Neutral Citation:	Shalhoub v Law Society of NSW (No. 2) [2016] NSWSC 1507
Hearing dates:	25 October 2016
Date of orders:	25 October 2016
Decision date:	25 October 2016
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. The proceedings are dismissed pursuant to r 12.7 Uniform Civil Procedure Rules 2005 (NSW).  2. The Plaintiff should pay the Defendant's costs of the proceedings.
Catchwords:	PROCEDURE – want of prosecution – proceedings filed more than 14 months earlier – pleading in Statement of Claim struck out 6 months earlier – leave to re-plead – no further pleading filed – no appearance by plaintiff – no explanation for delay – proceedings dismissed
Legislation Cited:	Legal Profession Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Shalhoub v Law Society of NSW [2016] NSWSC 293
Category:	Procedural and other rulings
Parties:	Fayez Frank Shalhoub (Plaintiff) Law Society of NSW (Defendant)
Representation:	Counsel: No appearance (Plaintiff) D Courtenay (Defendant)   Solicitors: Unrepresented (Plaintiff) Courtenay & Co Solicitors (Defendant)
File Number(s):	2015/235616

Judgment

1. These proceedings commenced on 12 August 2015. They sought orders under s 90D(3) of the Legal Profession Act 1987 (NSW) and further orders in relation to a decision of the Fidelity Fund of the Law Society dated 17 July 2014, refusing the Plaintiff's claim against the Fidelity Fund. On 7 April 2016, I published my reasons for striking out the pleading in the Statement of Claim: Shalhoub v Law Society of NSW [2016] NSWSC 293. That judgment set out the background to the proceedings.

2. The judgment concerned the decision of the Fidelity Fund involving three properties said to have been owned at one stage by the Plaintiff. The Plaintiff had been represented at the hearing of the Motion brought by the Law Society to strike out the Statement of Claim by a lawyer briefed by Legal Aid. I adjourned the matter to 24 June 2016 to permit the Plaintiff to re-plead the Statement of Claim and because it was expected that a further claim would be made on the Fidelity Fund in relation to a fourth property. Legal Aid ceased to act in the matter.

3. On 24 June 2016, the Plaintiff did not appear. I gave leave to a person, Mr Nasf, who had the written authorisation of the Plaintiff to appear on his behalf. I explained to Mr Nasf what had previously happened and that one purpose the proceedings had been adjourned was so that an Amended Statement of Claim could be filed. Mr Nasf sought on behalf of the Plaintiff a further period of time to enable the Plaintiff to obtain another solicitor to act for him. He asked for a relatively short of period of time but having some background to the case and understanding that Mr Shalhoub was in poor health, I adjourned the proceedings to 30 August 2016. I did that on the basis that, as Mr Nasf assured me, by that time Mr Shalhoub would be represented by another solicitor or, at the very least, there would be an Amended Statement of Claim filed.

4. On 30 August 2016, a Ms Sweeney appeared on behalf of the Plaintiff. She informed me that she had just been retained by the Plaintiff in the week that the matter was mentioned on 30 August 2016. She sought further time in relation to the amendment of the pleading, particularly by reason of the receipt of counsel's advice, which she expected to receive shortly after that date. Accordingly, I adjourned the proceedings to today.

5. On 30 September, the Law Society filed a Notice of Motion seeking an order that the proceedings be dismissed pursuant to r 13.4 Uniform Civil Procedure Rules 2005 (NSW) and seeking such further or other order as the Court thinks fit. On 12 September 2016, the Law Society's solicitor had been served with a Notice of Intention to File a Notice of Ceasing to Act by the solicitors who had appeared on 30 August 2016. As at today's date, there is no Notice of Ceasing to Act filed that is on the court file.

6. The position in summary is that, although I struck out the Statement of Claim on 7 April 2016 but preserved the proceedings so that an Amended Statement of Claim could be filed, nothing has eventuated despite the Plaintiff having been represented by a solicitor for some period of time in the interim.

7. Rule 12.7 UCPR gives a power to the Court to dismiss the proceedings if the Plaintiff does not prosecute the proceedings with due dispatch. The Plaintiff does not appear this morning, despite there being proof in an affidavit of the solicitor for the Law Society sworn 14 October 2016 of service of the Notice of Motion and other documents on the Plaintiff. No explanation is provided for the failure of the Plaintiff to re-plead his case.

8. In circumstances where, more than 14 months after the proceedings have commenced, there is no pleading on foot properly setting out what the Plaintiff's claims, I consider that the Plaintiff has not prosecuted the proceedings with due dispatch.

9. Either pursuant to prayer 2 in the Defendant's Notice of Motion seeking such further or other order as the Court thinks fit or on the Court's own motion, the proceedings are dismissed pursuant to r 12.7 Uniform Civil Procedure Rules 2005 (NSW). The Plaintiff should pay the Defendant's costs of the proceedings.

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Decision last updated: 23 April 2018