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,…