Supreme Court New South Wales Medium Neutral Citation: Touma v Maroulis [2021] NSWSC 34 Hearing dates: 1 February 2021 Date of orders: 1 February 2021 Decision date: 01 February 2021 Jurisdiction: Equity - Duty List Before: Parker J Decision: See [19] Catchwords: COSTS – solicitor acting in proceedings – client transfers instructions to new solicitor – dispute concerning handover of documents – summons claims delivery up of complete file – documents produced before hearing – whether costs order should be made against former solicitor Cases Cited: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Wentworth v De Montfort (1988) 15 NSWLR 348 Category: Principal judgment Parties: Roumanous Touma (Plaintiff) Alexander Maroulis (Defendant) Representation: Advocates: I Todd (Plaintiff) (Counsel) A Maroulis (Defendant) (In person) Solicitors: Auslex Law Group (Plaintiff) A Maroulis (Defendant) File Number(s): 2021/29468 Publication restriction: Nil Judgment – EX TEMPORE Revised from transcript; issued 2 February 2021 1. These proceedings arise out of personal injury proceedings pending in the Common Law Division of the Court. In those proceedings the plaintiff, Romanos Touma, is bringing a claim against a priest of the Maronite Church and the Church itself for damages for alleged sexual abuse. 2. The defendant in these proceedings is Alexander Maroulis. He is a solicitor who previously acted for Mr Touma in the Common Law Division proceedings. Mr Maroulis was first instructed by Mr Touma in October 2016 and the proceedings were begun in November 2018. They have been fixed for hearing before Associate Justice Harrison. The trial is scheduled for two weeks and begins on 8 February, which is in one week's time. 3. On 12 January Mr Touma withdrew Mr Maroulis' instructions and transferred the matter to another solicitor, Dion Christopher Accoto. Dr Accoto has retained fresh counsel and is attempting to prepare for the hearing before Associate Justice Harrison. 4. Disputes arose between the parties concerning the handover of documents. It is unnecessary to go into those disputes. On 19 January a tripartite deed was entered into concerning the handover of the matter from Mr Maroulis to Dr Accoto. The parties to the deed were Mr Touma, Dr Accoto and Mr Maroulis. Clause 4 relevantly provided: The former practitioner [Mr Maroulis] agrees 4.1 To transfer the client's documents to the present practitioner [Dr Accoto] upon the execution of this deed or within a reasonable time. 1. While Mr Maroulis accepted that, consistently with his obligations under the tripartite deed, he needed to hand over Mr Touma's documents concerning the proceedings to Dr Accoto, there were disputes about how this should be done. Last Thursday 28 January, in the evening, Dr Accoto sent Mr Maroulis a draft form of summons, advising him that proceedings were to be commenced against him in the Equity Division on short notice. Those proceedings were brought before me in the Duty List today (Monday) and the parties co-operated so that there could be a final hearing of the claim this afternoon. 2. In the course of the hearing, Mr Maroulis informed the Court that last Friday, and over the weekend, he sent all of the remaining documents to Dr Accoto. The summons claimed orders for the delivery up of the "complete file" and also for the provision of an index, or list, of the material in it. But counsel for Mr Touma accepted that there was no requirement to provide such an index or list in clause 4.1 of the tripartite deed. Counsel did not contest Mr Maroulis' statement that all relevant documents had been provided and accepted that the summons should be dismissed. The only dispute between the parties concerns costs. 3. According to Mr Maroulis, at an early stage he organised for the counsel he had retained to make the brief available for collection by new counsel. Mr Maroulis stated that the withdrawal of his instructions came as a surprise and that, as a result of having acted for almost three and a half years, the documents he held were voluminous. He said that he himself had been preparing for the trial and had a good idea of which documents were important and which were not. He said that he provided the documents to Dr Accoto, by way of instalment, according to their relative importance. 4. When Mr Maroulis received notice of the proceedings, he had to prepare an affidavit by way of response. He then completed the provision of the relevant documents on Friday and over the weekend, as I have already stated. 5. In Dr Accoto's affidavit, he presented a different point of view. Dr Accoto said that the production of documents had been unsatisfactory. On 21 January, that is the Thursday before last, Mr Maroulis delivered to Dr Accoto's office a brown paper shopping bag containing loose pages. After that, Dr Accoto's position was that the "complete file" should be made available rather than it being provided (as Dr Accoto would put it) in dribs and drabs. 6. Last Wednesday 27 January, Dr Accoto wrote to Mr Maroulis demanding an undertaking by 3pm that day that Mr Maroulis would make "the complete file available in hard copy, (not by sending one email after another for this office to decipher), which file is to be in folders with tabs and an index, not loose papers in a brown paper bag, as you have previously provided". The file was to be delivered to Dr Accoto's office by 4pm the following day. It was this demand which precipitated the application with which I am dealing. 7. Because of the way events have unfolded, it has not been necessary for the Court to make a determination on the substantive merits of the plaintiff's claim in these proceedings. In these circumstances, the well-known principles stated by McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624 apply. Generally speaking, the Court will not conduct an investigation of the merits for the purpose of deciding whether costs should be awarded to one side or to the other and will instead leave the costs to lie where they fall. But if the court can clearly see that one party has capitulated, then costs may be awarded against that party. 8. In applying these principles, I think there are three points of significance. 9. First, Mr Maroulis' only obligation was to hand over the "client's documents". Not every document which comes into the hands of a solicitor, for the purpose of conducting litigation on the client's behalf, is necessarily a document which belongs to the client. 10. The solicitor is the client's agent in conducting litigation. Accordingly, documents generated in the course of the solicitor's dealings with the Court, with other parties, and with others who are retained or communicated with by the solicitor as agent for the client, are held by the solicitor as agent and belong to the client. But documents which are prepared for the solicitor's own internal purposes (including copies of correspondence between the solicitor and the client) are not generally documents belonging to the client and are not held by the solicitor as agent. It will, of course, be otherwise if the solicitor has charged the client for the making of such copy documents. See generally Wentworth v De Montfort (1988) 15 NSWLR 348 at 355-356. 11. It seems to me that Dr Accoto may not have fully understood this. He persistently demanded production of the "complete file" in circumstances which suggest that he was seeking to obtain all of the documents held by Mr Maroulis. For his part, Mr Maroulis appears to have been happy to comply with that request, but if I were to determine where the legal merits of the dispute lay, I would first need to be satisfied that the documents provided by Mr Maroulis belatedly were actually "client's documents", for the purposes of clause 4.1. 12. The second point is that clause 4.1 did not impose any fixed time deadline on Mr Maroulis. His obligation was only to deliver the documents "within a reasonable time." There does not seem to be any dispute that the documents are voluminous. Again, before I reached a conclusion on the merits of the parties' respective positions, I would need to be satisfied that delivery of the remaining documents, which were delivered on Friday and over the weekend, was too late to be reasonable. 13. The third and related point is that, in deciding whether the bringing of the proceedings was justified, it would be necessary to look at the relative importance of the documents which had been provided at the time the demand was made, compared with the documents which were provided afterwards. 14. It is clear, I think, that in these circumstances it is not possible for me to determine, by a quick investigation of the evidence, whether it was reasonable for Dr Accoto to make the demand he made for production of documents by 4pm on Thursday and then to commence the proceedings that he commenced today. In accordance with the principles to which I have referred, it would not be an appropriate use of the Court's time to go into the various issues that I have identified in detail for the purpose of reaching a conclusion on them. Accordingly, there will be no order as to costs. 15. The orders of the Court are: 1. Order that the summons be dismissed. 2. No order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2021