Sharkey v Mayahi-Nissi (No 3) - [2016] NSWSC 537

Supreme Court

New South Wales

Medium Neutral Citation: Sharkey v Mayahi-Nissi (No 3) [2016] NSWSC 537
Hearing dates: 4, 5 April 2016
Date of orders: 29 April 2016
Decision date: 29 April 2016
Jurisdiction: Equity
Before: Kunc J
Decision:
Amended notice of motion dismissed; Documents to be removed from file

Catchwords:
LEGAL PRACTITIONERS – Court’s supervisory jurisdiction – Ex parte injunction in the nature of the writ of ne exeat colonia obtained by material misstatement – Whether counsel and solicitors should subsequently be restrained from acting
PRACTICE AND PROCEDURE – Correspondence and submissions contain serious allegations of misconduct – Ultimately not pursued – Whether should be removed from Court file – UPCR Part 4 r 4.15
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Legal Profession Uniform Law (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules
Cases Cited: Bayer AG v Winter [1986] 1 WLR 497; [1986] 1 AllER 733
Cardile v Led Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380
Danieletto v Khera, NSWSC, unreported, Bryson J, 17 February 1995, BC9504240
Elliott v Elliott [1975] 1 NSWLR 148
Glover v Walters [1950] HCA 1; (1950) 80 CLR 72
Jackson v Sterling Industries Limited [1987] HCA 23; (1987) 162 CLR 613
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Millennium Federation Pty Ltd v Bigjig Pty Ltd [1998] QCA 432; [2000] 1 QdR 275
Sleiman v Afeich [2005] NSWSC 1063
Sharkey v Nissi [2015] NSWSC 1266
Sharkey v Mayahi-Nissi [2015] NSWSC 104
Sharkey v Mayahi-Nissi No 2 [2015] NSWSC 132
Talacko v Talacko (No 2) [2009] VSC 444; (2009) 25 VR 613
Category: Principal judgment
Parties: Christopher James Sharkey (Plaintiff/Applicant)
John Richard Cox, Timothy John Eakin, Michael Leo Stafford, Cain Russell Sarah and Mark Geoffrey Doble trading as Eakin McCaffery Cox Lawyers (First Respondent)
Jonathan Hyde (Second Respondent)
Donya Mayahi-Nissi (Third Respondent)
Representation:
Counsel:
P.E. King (Plaintiff/Applicant)
G. Curtin SC and Dr R.P. Austin (First Respondent)
D.A. McLure SC and D.F. Villa (Second Respondent)
T. Lynch SC (Defendant/Third Respondent)
Solicitors:
Bransgroves Lawyers (Plaintiff/Applicant)
Eakin McCaffery Cox Lawyers (First Respondent)
Sparke Helmore (Second Respondent)
Eakin McCaffery Cox Lawyers (Third Respondent)

File Number(s): 2013/383023
Publication restriction: No

Judgment

Summary

The plaintiff, Mr Sharkey, commenced these proceedings against the defendant, his former partner, Ms Mayahi-Nissi. He claimed, among other things, that Ms Mayahi-Nissi held certain property on trust for him. Ms Mayahi-Nissi filed a cross-claim against Mr Sharkey. The proceedings were heard by Robb J on 16-20 February and 9 March 2015.
His Honour delivered judgment on 2 September 2015: Sharkey v Nissi [2015] NSWSC 1266. Mr Sharkey’s claim was dismissed. However, the proceedings continue before Robb J in relation to the assessment of damages to which his Honour held Ms Mayahi-Nissi was entitled from Mr Sharkey on her cross-claim.
This judgment deals with an application by Mr Sharkey in relation to events which occurred during the hearing in February 2015 before Robb J.
By amended…

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.

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Details

Case: [2016] NSWSC 537
Decision Date: 29 April 2016

CaseChat Overview and Summary

In the matter of Sharkey v Mayahi-Nissi (No 3), the Federal Court addressed a matter concerning the supervisory jurisdiction of the court over the actions of legal practitioners. The dispute arose from an earlier proceeding where an ex parte injunction in the nature of the writ of ne exeat colonia was obtained by a material misstatement. The court was tasked with determining whether the counsel and solicitors involved should be restrained from acting in the future.

The primary legal issue before the court was whether the legal practitioners should be restrained from acting due to the material misstatement made in the earlier proceeding. The court also considered whether correspondence and submissions containing serious allegations of misconduct, which were ultimately not pursued, should be removed from the court file. This consideration was guided by UPCR Part 4 r 4.15.

The court determined that there was no basis for restraining the legal practitioners from acting in the future, given the circumstances of the case. However, the court found it appropriate to remove the correspondence and submissions containing the serious allegations of misconduct from the court file, in accordance with UPCR Part 4 r 4.15. This decision was based on the court's discretion to manage its files and ensure that irrelevant or prejudicial information does not remain part of the public record.

The final orders of the court included the direction that the correspondence and submissions containing the serious allegations of misconduct be removed from the court file, in accordance with UPCR Part 4 r 4.15. No further orders were made regarding the legal practitioners' future conduct.

Orders