Singh v Kaur BAL

[2012] WASCA 240

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SINGH -v- KAUR BAL [2012] WASCA 240

CORAM:   PULLIN JA

HEARD:   9 NOVEMBER 2012

DELIVERED          :   9 NOVEMBER 2012

FILE NO/S:   CACV 147 of 2011

BETWEEN:   SARDUL SINGH

Appellant

AND

TEESHALDIP KAUR BAL
First Respondent

MAN MAHAN SINGH
Second Respondent

INDERJIT KAUR HARBHAJAN SINGH
Third Respondent

SATWANT KAUR
Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :BEECH J

Citation  :SINGH -v- KAUR BAL [2011] WASC 303

File No  :CIV 1009 of 2005

Catchwords:

Appeals - Practice and procedure - Whether documents should be accepted for filing

Legislation:

Rules of the Supreme Court 1971 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

The appellant have leave to file the appellant's answer and the appellant's reply to the notice of contention

Category:    B

Representation:

Counsel:

Appellant:     Mr E Carlose

First Respondent           :     No appearance

Second Respondent      :     In person

Third Respondent          :     No appearance

Fourth Respondent        :     In person

Solicitors:

Appellant:     Eapon Carlose

First Respondent           :     No appearance

Second Respondent      :     In person

Third Respondent          :     No appearance

Fourth Respondent        :     In person

Case(s) referred to in judgment(s):

Legal Profession Complaints Committee and Carlose [2012] WASAT 104

Singh v Kaur Bal [2011] WASC 303

1. PULLIN JA: This appeal has been listed to decide whether the appellant should have leave to file the appellant's answer and the appellant's reply to a notice of contention presented for filing on 25 July 2012. The registrar refused to accept the documents for filing pursuant to r 10(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) read with r 5(2) and O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA).

2. The background is as follows.  The parties engaged in litigation in the General Division of the Supreme Court about a property in Kinross and some shares in a property called Moving Times.  The appellant succeeded in relation to the Kinross property and failed in its claim with respect to the shares.  See the decision of Beech J in Singh v Kaur Bal [2011] WASC 303.

3. On 1 December 2011 the appellant commenced this appeal.  Mr Eapon Carlose is on the record as the lawyer for the appellant.  The appeal was against the order dismissing the claim concerning the shares in Moving Times.  The respondent cross‑appealed regarding the orders concerning the Kinross property.

4. It is then necessary to refer to proceedings in the State Administrative Tribunal brought by the Legal Profession Complaints Committee against Mr Carlose and which came to a hearing in May 2012.  The tribunal, after conducting the hearing, found that Mr Carlose had acted incompetently in the proceedings.  The proceedings were not the proceedings under review in this appeal.  The tribunal held that the conduct amounted to unsatisfactory professional conduct.  See Legal Profession Complaints Committee and Carlose [2012] WASAT 104. The tribunal subsequently made orders on 29 June 2012 in terms that Mr Carlose for a period of five years must not:

   (a)have the ongoing conduct of proceedings in the District Court of Western Australia, Supreme Court of Western Australia or Federal Court, or continue to act in such proceedings, unless independent counsel has been briefed to advise as to the merits of the claim or defence and the steps to be taken in preparation for trial and to settle pleadings in the proceedings; or

   (b)appear as counsel in any trial or final hearing in the District Court of Western Australia, Supreme Court of Western Australia or Federal Court.

5. Both of these orders have some ambiguity in them.  There is no reference to proceedings conducted in the Court of Appeal but at least on one view of them, it appears that the orders may apply to these proceedings because there is a reference to the conduct of proceedings in the Supreme Court and the reference to a final hearing in the Supreme Court of Western Australia.  Apart from that, the second order is clear in its terms; that is, Mr Carlose will not  appear as counsel.

6. However, the first order creates difficulty for this court.  It would be entirely unsatisfactory for the court to become involved in any question which might arise about whether or not Mr Carlose had, or had not, briefed counsel as required by the first order and therefore whether he could continue to act for the appellant and remain on the record.  The question has arisen in this case.  Mr Carlose alleged that he briefed counsel.  When counsel he nominated heard about this, counsel wrote to the court saying that he had not been briefed.  It is not appropriate for this court to conduct a side hearing to decide whether or not counsel had or had not been briefed.  All the court can do is to inquire of Mr Carlose whether he has complied with the condition.  If he says he has, then that assurance will be taken at face value.  If he misleads the court, then of course there may be potentially serious consequences for him.

7. It might be added that if Mr Carlose had admitted that counsel had not been briefed, then the tribunal's order is that he is not to have ongoing conduct of the proceedings and that would have raised practical difficulties about what orders this court should then make. 

8. Counsel appearing for the appellant on the last occasion was Mr McIntosh, and Mr Carlose informed me that Mr McIntosh has been briefed.  In the circumstances the answer and the reply - that is, the answer and the appellant's reply to the notice of contention - should be accepted for filing and I will so order.