Sukkar v Haoui

[2022] NSWDC 83

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sukkar v Haoui [2022] NSWDC 83

Hearing dates:

25 March 2022

Date of orders:

25 March 2022

Decision date:

25 March 2022

Jurisdiction:

Civil

Before:

Abadee DCJ (List Judge)

Decision:

See paragraph 33

Catchwords:

PRACTICE & PROCEDURE – civil – plaintiff’s solicitor, the applicant, had retainer verbally terminated in December 2021 – applicant omitted to file notice of intention to cease to act – applicant remains on Court record as the plaintiff’s solicitor - proceeding fixed for hearing on 28 March 2022 in September 2021- plaintiff informs applicant of desire to vacate hearing on 23 February 2002 - dispute or doubt about nature or extent of plaintiff’s legal representation, by another firm, from 10 March 2022 - other firm unaware of imminent hearing until 22 March 2022 – applicant applies for leave to withdraw

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56 - 60, 99

Uniform Civil Procedure Rules 2005 (NSW) rr 7.26, 7.29, 7.30

Cases Cited:

Angius v Salier (No.3) [2019] NSWSC 1648

Chaouk v Oh [2019] NSWDC 130

Hamoui v Hamaoui [2021] NSWDC 162

Investec Bank (Australia) Limited v Mann & Anor [2012] VSC 81

Leicester v Walton [1995] NSWCA 258 (22 November 1995)

Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300

Lezaja v Hannover Life Re of Australasia Ltd (No.2) [2016] NSWSC 167

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Prominent Lawyers (applicant)
M Haoui (defendant)
Stacks Goudkamp (interested party)

Representation:

Counsel:
Mr G Schipp for the applicant
Ms C Allan for the defendant
Mr B Jones for the interested party

Solicitors:
Prominent Lawyers for the applicant
Sparke Helmore for the defendant
Stacks Goudkamp for the interested party

File Number(s):

2019/00155429

Publication restriction:

Nil

Judgment

Background 

1. In this proceeding, the plaintiff claims damages for personal injuries, as a pedestrian, arising from a motor vehicle accident on 13 January 2016. She commenced the proceeding on 17 May 2019. The defendant admits breach of duty, but raises a defence of contributory negligence. 

2. On 21 September 2021, this proceeding, and another proceeding (relating to the plaintiff’s injury in a supermarket in April 2015) were fixed for hearing next Monday, 28 March 2022 with an estimate of 4 days. That other proceeding subsequently was settled. 

3. The matter is now before me because of a dispute about the plaintiff’s legal representation. Specifically, the solicitor currently on the record for the plaintiff, Anthony Bazouni, of the firm Prominent Lawyers, filed a notice of motion on 23 March 2022 (after business hours) applying for leave to withdraw as the plaintiff’s solicitor pursuant to r 7.29(2) of the UniformCivil Procedure Rules 2005 (NSW) (‘UCPR’).

4. This application listed, as an interested party, the firm Stacks Goudkamp, described in the motion as the “plaintiff’s new solicitors.” That firm appeared on the motion through Counsel. 

5. The defendant, another interested party, opposed the application. Understandably, his concern is with the hearing scheduled to commence on Monday. 

6. Although served with the motion, by email, on 24 March, the plaintiff did not appear. As indicated, given the lateness of service of the motion against her, that was not surprising, and it has some bearing upon the weight to be given to submissions raised by the applicant. 

Evidence 

Mr Bazouni’s affidavit evidence 

7. In swearing this affidavit, Mr Bazouni noted that he was not intending to waive privilege where it subsists. 

8. Mr Bazouni chronicled communications that he had with the plaintiff since 17 December 2021. The points that arise from the chronology of these communications were that: 

1. the plaintiff verbally terminated his firm’s retainer on 17 December 2021 and expressed a desire to be represented by Mr Coorey, a lawyer in Harris Park. In response to this indication, Mr Bazouni told the plaintiff to get that lawyer to “move quickly” in readiness for the hearing. At a follow up conference with the client on 31 January 2022, it was “confirmed” that Prominent Lawyers would cease to act with Mr Coorey acting in the matter. Mr Bazouni indicated to the plaintiff that he had not seen correspondence from Mr Coorey.

2. Mr Bazouni asserts that at no stage was his firm ‘re-instructed’ to act following termination of its retainer on 17 December. He did not file and serve a notice intending to cease to act or notice ceasing to act as he “assumed” the new lawyers would file a Notice of Change of Solicitor, as required by r 7.26(3) of the UCPR.

3. Between 22 and 25 February 2022, the administrative assistant for Prominent Lawyers, Ms Daniella Musumeci, exchanged correspondence about the forthcoming hearing and her representation. The plaintiff indicated that she had a hand operation and wanted the hearing vacated. Prominent Lawyers sought confirmation from the plaintiff that she had new lawyers, but the plaintiff informed the firm that she did not and sought the vacation of the hearing date. On 25 February, the plaintiff indicated that she regarded Prominent Lawyers as her solicitors.

4. On 28 February 2022, Mr Coorey corresponded with Mr Bazouni, by email, indicating that his firm did not have instructions to appear for the plaintiff.

5. On 10 March 2022, Ms Karina Goodall, a Partner of Stacks Goudkamp, sent an email to Prominent Lawyers indicating that the firm had now received instructions to act for the plaintiff in relation to injuries sustained in the motor vehicle accident. Nothing was said in the email to signify any appreciation in Ms Goodall that a hearing was scheduled to occur in a little less than 3 weeks’ time. At any rate, the email attached an Authority to Transfer the file.

6. On 22 March 2022, Stacks Goudkamp sent an email to Prominent Lawyers.  In the first of them, Ms Goodall indicated that she had understood that the matter was listed for hearing commencing on 28 March, understood that the plaintiff had asked that the hearing be adjourned given her recent hand surgery and asked whether Prominent Lawyers had applied to vacate the hearing. The same day, the defendant’s solicitors sent correspondence indicating their understanding that Prominent Lawyers remained on the record for the plaintiff.

7. On 23 March 2022, there was a flurry of emails between Stacks Goudkamp and Prominent Lawyers. Ms Goodall indicated that her firm had been unaware of the listing for hearing and were not, at any rate, able to proceed to hearing. In another email, Ms Goodall drew reference to r 7.29(2) of the UCPR and indicated that, in the absence of an application being made, she regarded Prominent Lawyers as remaining on record and would continue to represent the plaintiff at the hearing on 28 March. This provoked Romina Canelas, a lawyer with Prominent Lawyers, to draw Ms Goodall’s attention to r 7.26 of the UCPR.

Mr Huynh’s affidavit 

9. Mr Huynh is a Senior Associate with Sparke Helmore, the firm representing the defendant. Mr Huynh works under the supervision of Mr Seisun, the solicitor on the record for the defendant. 

10. Mr Huynh filled in further parts of the chronology. 

11. This included that: 

1. on 28 February 2022, in response to Mr Bazouni’s indication of his belief that the plaintiff had instructed Mr Coorey, Mr Seisun informed Mr Bazouni that he remained on the Court’s record as the plaintiff’s solicitor. On the same day, Mr Coorey informed Mr Seisun that he did not have the capacity to act for the plaintiff; 

2. on 3 March 2022, Sparke Helmore sent a letter to Prominent Lawyers. Materially, it sought urgent responses to Sparke Helmore’s questions of whether: the plaintiff had obtained new legal representation; if she had, who the new legal representative was and whether Mr Bazouni intended to file a Notice of Intention to file a Notice of Ceasing to Act and if so, when. The letter requested an urgent response. 

3. on 16 March 2022, Mr Huynh learnt from the defendant’s insurer that Stacks Goudkamp was going to act for the plaintiff. This prompted Mr Huynh to try to call Mr Bazouni, on that date and again on 22 March 2022, but on both occasions, he was informed that Mr Bazouni was unavailable. 

4. so, on 22 March 2022, Mr Huynh sent another letter to Mr Bazouni, referring to the omission to respond to Sparke Helmore’s letter of 3 March and drawing his attention to r 7.29(2). The letter asked Mr Bazouni to advise what steps were to be taken with the plaintiff’s representation.

5. further, on 22 and 23 March 2022, Mr Huynh had correspondence with Ms Goodall. This prompted Ms Goodall to inform him that Stacks Goudkamp was unaware of the listing of the matter for hearing on 28 March. Stacks opined that Ms Canelas of Prominent Lawyers was the plaintiff’s solicitor. 

Ms Canelas’ affidavit 

12. Ms Canelas annexed to an affidavit correspondence indicating service of the present motion on Sparke Helmore on 23 March and on the plaintiff and Stacks Goudkamp on 24 March 2022. 

The parties’ submissions 

13. Counsel for the applicant submitted that the plaintiff withdrew her instructions to the applicant in December 2021. The position had not changed since. Stacks Goudkamp had represented from 10 March 2022 that it acted for her. It is not disputed that the applicant has not prepared the plaintiff’s case since December and it cannot now adequately represent her. His firm should not be forced to represent her at next week’s hearing. Counsel conceded that there was some uncertainty in the period from 22 February to 10 March 2022, as to the status of her representation and what might be done to vacate the hearing in view of her hand surgery, but the hand surgery was a matter that was equally known to the defendant, whose insurer paid for that surgery. Counsel submitted that it could have been expected that the plaintiff would inform Stacks Goudkamp of the hearing date, or Stacks Goudkamp would have made such inquiry itself, in the period from 10 March to 22 March, when the applicant notified Stacks Goudkamp of the hearing date. 

14. The defendant’s Counsel submitted, with reference the current r 7.30 of the UCPR that until a notice of change of solicitor has been filed and served, the applicant remained on the record as the plaintiff’s solicitor and with reference to the authority of Leicester v Walton [1995] NSWCA 258 (22 November 1995), submitted that he was obliged, as such, to take steps to ensure that the plaintiff complied with Court orders. Whatever was the nature of private communications between the plaintiff and applicant, until he was removed as solicitor, the applicant continued to be subject to the duty in s 56(4) of the Civil Procedure Act 2005 (NSW). More specifically, from 22 February 2022, the plaintiff had told the applicant that she wanted the hearing vacated. The applicant’s obligation under s 56(4), or perhaps other sources, should have prompted him to notify the Court that there may be an ‘intervening’ event which threatened the viability of the hearing date. Reference was made here to the content of the Court’s Practice Note on the obligations of parties, and their representatives, to take proactive steps once on notice of circumstances affecting the continuation of a hearing. If he did not take that step from 22 February, he at least should have filed the notice of ceasing to act before the time expired for him to do so. The defendant’s Counsel submitted that it is too late now to bring the application. Criticism was also made of the applicant for the omission, when explaining the circumstances of the application, to refer to Sparke Helmore’s letter of 3 March, for being less than fully frank.

15. Counsel for Stacks Goudkamp, an interested party on the application, generally adopted the defendant’s submissions. In addition, he submitted that his client did not act for the plaintiff and that the applicant laboured under a misapprehension about r 7.26. He pointed out that the applicant did not prove, beyond bare assertion, that the relationship between him and the plaintiff had broken down. Counsel criticised the applicant for even joining his client to the application.

Consideration 

16. It is well understood that a solicitor should not ordinarily be forced to act for clients who refuse to provide them with instructions (Lezaja v Hannover Life Re of Australasia Ltd (No.2) [2016] NSWSC 167 at [30]); and that where a client does not place the solicitor in funds the solicitor is entitled to cease to act. However, should it wish to do so, the rules make it patently clear that s/he must give notice of their intention to cease to act. Whilst s/he remains on the record, s/he is amenable to orders from the Court, and subject to the operation of the rules of practice and procedure contained in the UCPR and, where appropriate, Practice Notes issued by the Court.

17. As with all procedural applications, the Court approaches of an application of this kind with reference to the case-management objects of ss 56 – 60 of the Civil Procedure Act 2005 (NSW). Rule 7.29(2) of the UCPR indicates itself that applications by solicitors to withdraw must be made in a timely fashion.

18. The defendant supplied the Court with a decision of Wilson SC DCJ in Hamoui v Hamaoui [2021] NSWDC 162, which set out, with respect very usefully, the authorities in the area. One of the authorities referred to his Honour, being the decision of the Supreme Court of Victoria of Investec Bank (Australia) Limited v Mann & Anor [2012] VSC 81 (“Investec”), considered a case with some similarity to the circumstances here, where a solicitor’s termination of retainer was influenced by not being placed in funds. At [7], Pagone J emphasised that solicitors who make such applications must be mindful of their duties to the Court and to the administration of justice, their former client and to opposing or other litigants. 

19. This trial was fixed months ago, but Prominent Lawyers, and not Mr Coorey and not Stacks Goudkamp, was on notice (from 23 February 2022) of the plaintiff’s desire to have next Monday’s hearing date vacated, because of hand surgery scheduled for 17 March, assumed that whichever firm took over the representation of the plaintiff would attend to the steps necessary to make that application.  In a situation where, at least as of 28 February, Mr Bazouni was aware that Mr Coorey had confirmed that he was not acting for the plaintiff, Mr Bazouni was aware that there was a real risk that the plaintiff, at that point unrepresented, needed to promptly bring an application to vacate. There had been no formal notice of termination of his authority, in accordance with r 7.27.  There is nothing to indicate, at that point, that the plaintiff indicated a desire to represent herself. To the contrary, on 23 February, she informed Prominent Lawyers that she did not have a new lawyer and asked them (Prominent Lawyers) to adjourn the hearing.  

20. If Mr Bazouni did not wish to represent her in bringing and appearing at an application to vacate, and, should such application fail, the trial, then the only viable course for him was to cease to act in the prescribed manner. It is inexplicable why, as of 28 February, he did not do so. In accordance with the ordinary operation of r 7.29(2), that was the last day upon which he should have filed a notice of change before the Court’s leave was required. Accordingly, this represented an initial opportunity for him to withdraw; one which did not depend upon any belief that he may have had that some other solicitor had been retained to appear for the plaintiff at the hearing.

21. I agree with the defendant that at least from 23 February 2022 to 10 March 2022, there was no basis for the applicant to consider that the plaintiff was represented. That being so, it was incumbent upon him to notify the defendant and the Court that the listing date for the hearing was potentially imperilled. This obligation is referred to, specifically, in paragraph 13.1 of the Practice Note. Though the obligation was cast upon the party, it clearly extended to its solicitor on the record. Contrary to the applicant’s submission, he could not delegate this obligation to the defendant, even if it was responsible for paying for the plaintiff’s hand surgery.  There were plain limitations upon the defendant’s obtaining instructions from the plaintiff. The applicant, on the other hand, was specifically instructed by the plaintiff to vacate and there are indications in the correspondence suggesting that the plaintiff was trying to get in contact with the applicant, only for those attempts to be unavailing.   

22. If the applicant was not prepared to bring such application, then it was incumbent upon him to cease to act at that point. In this way, the defendant and the Court may have been put on notice that there was a potential problem with the continued viability of the hearing, even if it may be unaware of the precise reason. I expect that had that step been taken, either through the initiative of the defendant or on the court’s own initiative, the problem would have been addressed. 

23. Then on and from 3 March 2022 the applicant ignored the clear indication in Sparke Helmore’s letter of 3 March that for such time as he remained as the plaintiff’s solicitor on the record he was “obliged to prosecute the claim and attend to any preparations that may be required”.  The applicant’s counsel cavilled with the correctness with that opinion and it is not necessary now to debate its correctness. The point is that this should have triggered an approach, then and there, to apply to withdraw from representation. It was troubling that Mr Bazouni did not annex this letter in his affidavit in support of the application. That he did not file a notice ceasing to act represented another opportunity to apply for withdrawal as the solicitor. Though at that point he would have required the Court’s leave, the prospect of him being allowed to do so would have been increased then it currently is since it would have at least allowed an opportunity for the plaintiff to try to obtain legal representation at the hearing. 

24. It was insufficient, in my view, for the applicant to assume that Stacks Goudkamp would file a Notice of Change of Solicitor, to effectively make that firm the plaintiff’s solicitor on the record. Prominent Lawyers was still on the record, by virtue of its omission to file a notice of intention to cease to act. This was the point reasonably and promptly made by Ms Goodall after learning of the hearing date by email sent after business hours on 22 March. Contrary to the applicant’s submission, in light of the contemporaneous correspondence, I do not accept that Stacks Goudkamp was actually aware of the hearing date prior to 22 March. Further, I do not accept that the plaintiff had disclosed the imminence of the hearing date to Stacks. If there be any validity in criticism of the plaintiff (for not disclosing) or Stacks Goudkamp (for not inquiring) about any hearing date, it was more than outweighed by the criticism that justifiably may be levelled at the applicant for not taking the simple and antecedent step of responding to the plaintiff’s desire to have the hearing date vacated prior to 10 March. At any rate, it is passing strange, to say the least, that whilst withholding the client’s file despite Stacks Goudkamp’s request from 10 February, Prominent Lawyers did not think to mention to Ms Goodall the hearing date until 22 March. This 12-day gap was a yet another opportunity for Mr Bazouni to apply to withdraw. I note further that nothing was said within this period by Prominent Lawyers stating its expectation of Ms Goodall that she would file a notice under r 7.26. I consider that the applicant’s recourse to this rule was a rather desperate attempt to deflect responsibility from its own omissions in taking a simple expedient of unilaterally ceasing to act, from as early as mid-December or at least from bringing a much earlier application to withdraw than it did.

16. Further, from the time it became aware of the existence of the hearing date, Stacks Goudkamp’s consistent position, communicated to Prominent Lawyers, was that it could not act as the plaintiff’s solicitor. It would be unreasonable to expect Stacks Goudkamp to be ready to run a proceeding relating to an injury occurring back in 2016 when the applicant had not ceased to act.  

17. Whilst I acknowledge that it is less than satisfactory for a solicitor to be compelled to act for a client who is unwilling to provide instructions, I am not persuaded from the evidence that this is necessarily the position. I draw no inference adverse to the plaintiff from her non-attendance at this morning’s hearing. The tenor of her emails to the applicant on 23 and 25 February indicates, to the contrary, a strong possibility that, faced with the position of representing herself or having the applicant act for her, she would prefer the applicant’s representation.  There is no evidence to sustain the bold and broad assertion of a ‘breakdown’, or at least an irretrievable breakdown, in relations between the plaintiff and applicant. To accede to the application would be unfair to her, in the circumstances. Further, I am not persuaded that she would not provide instructions to the applicant in the circumstances if his application to withdraw was refused. In this way, the force of the applicant’s reliance upon what Hallen J said in Lezaja is diluted. 

18. If the Court acceded to Mr Bazouni’s application to withdraw, the plaintiff would have to appear for herself, with all of the challenges that a self-represented litigant would face; with a commensurate risk that the matter could not be completed within the estimated time. There are some litigants who, by reason of their educational background, are reasonably equipped to represent themselves even without lawyers. But in this regard, there is nothing to indicate the plaintiff’s capacity to represent herself, in terms of her education or learning. That would plainly be contrary to the defendant’s interests in having the matter determined and also other litigants’ whose hearings might be displaced. As Judge Wilson did in Hamoui, I also endorse Gibson DCJ’s views expressed in Chaouk v Oh [2019] NSWDC 130 at [21], regarding a solicitor’s duties to the Court and opponent in the present context. I also agree with Pagone J’s observation in Investec at [8] that solicitors who are on the record should guard against the possibility of the Court finding itself with unrepresented litigants close to a hearing date.

19. I cannot discount the prospect that, if forced to represent herself, she may apply for a vacation of next week’s hearing; although it would be inappropriate for me to venture any views of the prospects of such application succeeding. 

20. Ultimately, as Parker J said in Angius v Salier (No.3) [2019] NSWSC 1648 at [10], the Court relies upon practitioners, as officers of the Court, to assist the Court to discharge its functions and the requirement for leave if a solicitor is to withdraw within 28 days of the trial is well-known. The importance of there being a solicitor on the record for a party is not only manifested in the court rules, but has been acknowledged, in one form or another, throughout the ages. It is important not only for the client, but also to the Court. To bring this application now, less than a week before the scheduled commencement of the hearing is simply too late, particularly having regard to when the matter was fixed for hearing; and is at any rate, inconvenient to the defendant and to the Court.

21. It is of course undesirable for solicitor to be forced to act against its wishes and when it apprehends that it is unprepared to do so. But the applicant also needs to understand that the Court would not lightly sanction an eleventh-hour application which effectively seeks to coerce the Court into legitimising a course of conduct by the applicant which, for the reasons indicated, has been unreasonable. 

22. The notice of motion filed by Anthony Bazouni of Prominent Lawyers, dated 23 March 2022, is dismissed. 

23. On the question of costs, Stacks Goudkamp warned Prominent Lawyers on 24 March 2022 that in that contingency, it would seek its costs against his firm personally, under s 99 of the Civil Procedure Act2005 (NSW). It is well-recognised that before costs orders are imposed personally against solicitors, they have the opportunity to be heard: Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300. That includes, in my view, the opportunity to make considered submissions in the light of these reasons. This should not be rushed, given the proximity of the hearing. Already there has been enough distraction for the parties from the task of preparing for the hearing. The interested party, Stacks Goudkamp, may also wish to make submissions as to whether it should have its costs and, if so, on what basis and who should pay them.

24. I therefore propose the following further directions: 

1. applicants (including the interested party) for costs orders serve any additional evidence and a short outline of submissions (not exceeding 3 pages) by 4 April 2022. 

2. Mr Bazouni serve any additional evidence in response and a short outline of submissions (not exceeding 3 pages) by 11 April 2022. 

3. the applications for costs are to be determined on the papers. 

**********

Amendments

25 March 2022 - Paragraph 16- substituted ‘are’ with ‘is’

Paragraph 26 – substituted ‘where’ with ‘if’

Paragraph 30 – substituted ‘is’ with ‘has been’

Decision last updated: 25 March 2022