Soloman v Savage (No 2)

[2018] NSWCA 291

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Soloman v Savage (No 2) [2018] NSWCA 291
Hearing dates:	On the papers
Decision date:	28 November 2018
Before:	Macfarlan JA; Leeming JA; Sackville AJA
Decision:	The papers in this matter are referred to the Law Society.
Catchwords:	LEGAL PRACTITIONER – whether papers should be referred to Law Society – papers referred
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 51.28, 51.29
Cases Cited:	Soloman v Savage [2018] NSWCA 249
Category:	Consequential orders (other than Costs)
Parties:	Phillip Aziz Soloman (Appellant) Robin Barry Savage (Respondent)
Representation:	Solicitors: Edmond El Khoury (in person)
File Number(s):	2017/387968
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: None Date of Decision: 27 November 2017 Before: Blackmore DCJ File Number(s): 2016/137741

Judgment

1. THE COURT: By this Court's judgment in Soloman v Savage [2018] NSWCA 249 delivered on 1 November 2018, leave was granted to Mr El Khoury to file and serve submissions, in accordance with what had been said in [55]–[56] as follows:

“[I]n the material before the Court there are matters which, subject to any explanation El Khoury offers, may be capable of suggesting that he has departed from the standards to be expected of a competent legal practitioner aware of his obligations to the court. Those matters include the following:

(1) Whether, as Mr Soloman’s affidavit claims, Mr El Khoury was retained to act on Mr Soloman’s behalf in connection with the District Court hearing and to brief counsel.

(2) If so, whether there is an explanation for Mr El Khoury’s apparent failure to appear in the District Court or to proffer an explanation to the District Court for his non-appearance.

(3) Whether Mr El Khoury was informed by Mr Mando that he (Mr El Khoury) was in a position of conflict with his client and, if so, when he was so informed.

(4) If Mr El Khoury was made aware of the conflict of interest, whether he nonetheless continued to represent Mr El Khoury, either as a solicitor or as a “friend”. If he did continue to represent Mr El Khoury, did he do so aware that he was in a position of conflict?

(5) What is the explanation for Mr El Khoury’s apparent failure to comply with the rules governing a solicitor seeking leave to cease to act for a litigant?

In the absence of a satisfactory explanation of these matters there may be a basis for the Court referring Mr El Khoury’s conduct to the Law Society of New South Wales for consideration of what, if any, further steps should be taken. Before determining whether such a referral should be made Mr El Khoury should be invited to file and serve within 21 days any submission he wishes to make, together with any affidavit or other evidence on which he wishes to rely ...”

2. That has occurred, and Mr El Khoury has filed submissions of 5 pages, signed by himself, and an affidavit affirmed 21 November 2018.

3. It is neither necessary nor appropriate to summarise all aspects of the affidavit and submissions. The only question that arises is whether Mr El Khoury’s conduct should be referred to the Law Society. We consider that it should be. To be clear, the fact that we have formed that view does not amount to a finding that Mr El Khoury’s conduct does amount to unsatisfactory professional conduct or professional misconduct or has otherwise departed from the standards to be expected of a competent legal practitioner. Whether any such finding should be considered or made is a matter for others.

4. It suffices to say the following.

1. First, Mr El Khoury’s submission makes a series of statements of fact which are unsupported in his further affidavit; this suggests a defective appreciation of the difference between evidence and submission.

2. Secondly, Mr El Khoury’s affidavit is entirely silent as to how the documents in this Court with his name and signature came about. His submission states that “It is evident that I was not involved directly in the preparations or the filing of any of the appeal books”. The submission is difficult to reconcile with the two documents at pages 18 and 19 of the Orange Book, both purporting to have been signed by Mr El Khoury as “Solicitor for the Appellant”. The signature is illegible, but appears to be similar to that on his most recent affidavit. Those documents are statements pursuant to UCPR rr 51.28(3)(a) and 51.29(5)(b). The two pages certify that “there was no transcript of the hearing” (and hence no Black Appeal Book) and “there were no documents before the Court below (other than those in the Red Book) relevant and necessary for the hearing and determination of the proceedings” (and hence no Blue Appeal Book). Contrary to what was certified, there was a transcript and there was documentary evidence which was necessary for the hearing and determination of the appeal, but for present purposes what matters is that those pages are difficult to reconcile with the submission that Mr El Khoury was not involved directly with the preparation of the appeal books. Rather, he appears to have been responsible for the failure to provide all of the documents necessary to hear and determine Mr Soloman’s appeal.

3. Thirdly, Mr El Khoury’s submission says that “I only volunteered to witness some court documents for Mr Soloman who decided to represent himself. I was doing so not as Mr Soloman’s legal representative but rather for the purpose of not putting Mr Soloman in a disadvantaged situation” (original emphasis). It is not clear whether the certifications pursuant to UCPR rr 51.28(3)(a) and 51.29(5)(b) are the documents to which he referred (although there seem to be no other documents signed by Mr El Khoury in the appeal books). If he was referring to those documents as the court documents which he “volunteered to witness”, his submission that he did not do so as Mr Soloman’s solicitor is difficult to reconcile with the “Capacity” of “Solicitor for the Appellant” under what is apparently his signature. Further, Mr El Khoury was not “witnessing” a document. He was certifying that, contrary to the usual position, no Blue or Black Appeal Books needed to be filed.

4. Fourthly, Mr El Khoury’s submission, when addressing the consequences of his receipt of instructions to attend the District Court in Bega, stated, “As a legal practitioner I am a creature of instructions and I would be liable if I would act contrary to my client's instructions”; this suggests a serious failure to appreciate his overriding obligation to the Court.

5. Fifthly, Mr El Khoury’s submissions (but not his affidavit) state that his client had advised him (Mr El Khoury) that the client had received substantial threats to both his life and the lives of his legal team. The text messages said to have been forwarded by the client and indeed the client’s text message to Mr El Khoury do not contain any threat to the legal representatives, as distinct from a threat to the client. Why in these circumstances Mr El Khoury believed that the filing of the notice of motion and the supporting affidavit constituted an adequate explanation to the Court for his own non-compliance remains unclear. Similarly, it remains unclear why Mr El Khoury apparently made no attempt to contact the Court directly to explain his position.

6. Sixthly, Mr El Khoury has referred twice in support of his conduct to “the matter of HUA LI v ZE CHENG JIN matter number (p) SYC 4052/2013” (it is the only reference to the decision of any court mentioned in his submission). The impression gained from the submission is that the reference is to something that a Federal Circuit Court judge said when submissions were made by a practitioner after a client withdrew instructions. Putting to one side the question of the weight (if any) to be given to it, there is no ready way to access the transcript from the reference provided, despite Mr El Khoury’s statement that “the transcript of that matter … is on the record of the Federal Circuit Court in the Sydney registry”.

5. The foregoing is not intended to be exhaustive. We are satisfied that it is appropriate that the papers in this matter be referred to the Law Society.

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Decision last updated: 28 November 2018