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 4.15Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Legal Profession Uniform Law (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure RulesCases 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 613Category: 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:
Solicitors:
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)
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
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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.
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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.
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This judgment deals with an application by Mr Sharkey in relation to events which occurred during the hearing in February 2015 before Robb J.
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By amended…
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- Case
- [2016] NSWSC 537
- Decision Date
CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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